1703887 (Refugee)

[2022] AATA 4928

1703887 (Refugee) [2022] AATA 4928 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1703887

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nathan Goetz

DATE:7 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 November 2022 at 5:02pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party member – political violence – political activities in Australia – physical assault – passport renewal – false legal proceedings – fear of killing – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2; r 1.12

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

2. At the Tribunal hearing, the applicant was represented by registered migration agent 19030018 Ms Ashwina Krishnan.

   BACKGROUND

3. The applicant identifies as [applicant’s name], a male citizen of Bangladesh presently located in Australia.

4. On 29 July 2016 the applicant was offshore and granted a visitor visa to travel to Australia. He arrived in Australia [in] August 2016.

5. On 12 September 2016 the applicant applied for a protection visa. He gave oral evidence at a delegate interview on 27 January 2017. On 10 February 2017 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.

6. On 6 March 2017 the applicant applied to the Tribunal for a review of the refusal decision.

7. On 17 December 2020 the applicant appeared at a Tribunal hearing to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages.

8. On 5 January 2021, the applicant wrote to the Tribunal and advised that he had instructed his representatives to obtain a copy of the recording between the applicant and the delegate because the Tribunal raised concerns about what the applicant had said to the delegate and the applicant did not have a copy of the recording because the Department does not provide interview recordings these days. The applicant asked the Tribunal to delay deciding the review to allow the applicant to obtain a copy of the delegate interview so he could ‘check the recording’ before further responding to the Tribunal’s concerns.

9. The Tribunal waited on a further statement or submission after the applicant had obtained and listened to a copy of the delegate interview, noting that the applicant’s representative had already apparently lodged a request with the department under FOI laws for this evidence. The Tribunal received no further statement or submission and decided to make a decision without delaying the matter further.

   Criteria for a protection visa

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

11. 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.

12. 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).

13. 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.

14. 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.

15. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations

    Mandatory considerations

16. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Protection visa application form

17. According to the protection visa application form which was completed with the assistance of the applicant’s former migration agent, the applicant identifies as [an age]-year-old male who was born in Munshiganj, Dhaka, Bangladesh and is a citizen of that country. He is not a citizen of any other country. He can speak, read and write Bengali, and can write English. He has never been married or been in a de facto relationship. He is one of [number] children. His [siblings], mother and father all remain in Bangladesh.

18. He departed from Dhaka International airport [in] December 2015 and last arrived in Australia [in] August 2016. He left Bangladesh legally on a Bangladesh passport issued [in] 2014 which was valid until [2019]. He provided copy of his passport. That passport was issued legally. He has never had any other passport or travel document.

19. He left the question about whether he held an Australian immigration visa at the time of his first entry to Australia blank. He wrote that he had never applied for an Australian visa outside of Australia. He has never applied for refugee status or protection in any country other than Australia. He had never been assessed for refugee status by the UNHCR or been registered with that organisation.

20. He wrote that between [December] 2015 and [August] 2016 he was in [Country 1]. His reason for the visit was ‘working visa.’ Prior to December 2015, he lived in [Village 1 in] Mushiganj, Bangladesh. He did not detail his employment history as self-employed in a [business 1] from December 2008 to December 2015 in Bangladesh. The form was corrected to include this information by the delegate during the delegate interview. He declared his role as a worker in a [business 2] service in [Country 1] from December 2015 to August 2016, and [an occupation 1] from October 2016 in Australia. This detail was added to the protection visa application form by the delegate during the delegate interview. At the time of his protection visa application, he described himself as unemployed.

21. The applicant wrote that he had a ‘false case’ against him in Bangladesh. In the separate character declaration, he wrote that he had not been charged with any offence that is currently awaiting legal action, had not been convicted of an offence in any country and had not been the subject of an arrest warrant. He did not declare that was aware that he was the subject of a criminal investigation or had criminal charges pending against him when asked about this in a specific question. The delegate corrected the protection visa application form during the delegate interview to read that the applicant was aware that he was the subject of a criminal investigation or that he had criminal charges pending against him.

22. He answered ‘no’ to the question about whether he was making his own claims for protection (Question 87) but answered Questions 88 to 96 about his reasons for claiming protection by directing the reader to his written statement. He seeks protection in Australia, so he does not have to return to Bangladesh. He did not claim to meet the requirements of a protection visa on the basis of membership of the same family unit as a person who holds a protection visa.

23. In the written statement the applicant wrote that while working in a family business in Bangladesh, he heard people taking about the good things about Ziaur Rahman who he described as a legendary politician. This caused him to become involved in politics in 2008, particularly with the Bangladesh Nationalist Party (BNP). He became one of its members. He wrote that a ruthless caretaker government was installed in 2007 which was backed by the army. He detailed their actions while in power.

24. The applicant wrote that he was excited when elections were held on 29 December 2008. He worked for the BNP candidate who he named. He also named the opponent from the Awami League political party. He detailed his involvement as going from door to door asking for votes. He noted that the BNP candidate was defeated. He described the Awami League victory in the general election as a landslide and detailed what he described as the Awami League becoming vengeful towards the BNP and activities.

25. The applicant wrote that he became an executive member of the [Village 1] Union BNP. He described this position as very rewarding.

26. The applicant described what happened to him on [a day in] March 2014. He was returning home from [Bazaar 1] and was attacked by a group of Awami League cadres. He was beaten and admitted to a clinic for 7 days. After the incident, his sister went to the local police station to file a case but police said they would register the case against the people of a notorious Awami League criminal.

27. The applicant wrote that his sister informed him that a case had been filed against him. After receiving this information from his mother and sister a decision was taken to send him overseas. He managed to obtain a visa to [Country 1]. When he was in [Country 1] he was ‘captive in a shop’ and could not move freely. He found it to be an uncivilised country and harmful living there. He contacted an agent to leave [Country 1] and this agent managed to obtain a visa for the applicant to come to Australia.

28. He cannot return to Bangladesh because of random political persecution. 

29. Included with the protection visa application form were several media articles:

    ·     ‘Bangladesh deputy opposition leader arrested in Dhaka,’ BBC News, 6 January 2015

    ·     ‘Bangladesh Court Issues Arrest Warrant for Opposition Leader Zia,’ Benar News, 30 March 2016

    ·     ‘Missing Bangladesh opposition Leader Arrested in Shillong,’ NDTV, 13 May 2015

    ·     ‘Bangladesh: End Arbitrary and Secret Arrests,’ Human Rights Watch, 12 October 2016

    ·     ‘Arrest warrant against Bangladesh opposition leader Khaleda Zia’s son,’ Indian Times, 9 November 2015

30. The applicant also included a letter and an English translation of that letter from the BNP which certified that the applicant was personally known to the authors. The authors were [specified office bearers] of the BNP in the [Village 1] Union. They wrote that the applicant left the country being a victim of hostility from the Awami League cadres against whom there was a case. The letter wrote that the applicant as an active member of the executive committee prior to his departure from Bangladesh.

    Delegate interview – 27 January 2017

31. The applicant gave oral evidence in support of his claims at an interview with the delegate. The Tribunal listened to the recording of the interview. Where relevant to the Tribunal’s findings, the oral evidence is included in this decision record.

    Review application to the Tribunal – Prior to hearing

32. On 10 December 2020 the applicant provided additional evidence to the Tribunal:

    ·     A written statement by the applicant

    ·     A letter dated [in] November 2020 from [Official A], who identified as a [Position 1] of the BNP in Australia. In this letter, the author wrote that he has personally known the applicant since January 2017 and that applicant is a general member of the BNP in Australia. He wrote that the applicant had engaged in various anti-government rallies and demonstrations to protest undemocratic and inhumane torture on political leaders, activists and reports by the current Bangladesh Government. The author wrote that the applicant attended a protest against the current Prime Minister of Bangladesh in April 2018 when she visited Australia and that he attended a BNP [meeting] on 16 December 2018.

    ·     A letter dated 5 September 2020 from [Official B] who identifies as a former member of the Bangladesh Parliament for [a named] constituency, a [Position 2] of the BNP of the central executive committee, a former secretary of [Agency 1] and a former member of [Agency 2]. The author wrote that the applicant was known to him and that the applicant was a member of the [Village 1] Union BNP. The author wrote that the applicant participated in many meetings rallies and demonstrations for the BNP. The applicant was attacked many times as a result and received injuries requiring hospitalisation. A false case was put against the applicant. The applicant left Bangladesh and was compelled to take shelter in Australia due to harassment by the ruling party in Bangladesh.

    ·     A photograph that the applicant identified as himself with a BNP local leader. The applicant identified the name of that leader and indicated that this photograph was from 2011.

    ·     A photograph that the applicant identified as himself being with the chairman of the local upazila. The applicant identified the name of that leader and indicated that chairman was also president of the BNP in local upazila. The photograph identifies that it was from 2013.

    ·     A membership application form for the BNP in Australia signed in the applicant’s name and dated [in] January 2017.

    ·     A document with an English translation that was identified as a warrant of arrest concerning the applicant dated [in] February 2015 from [an identified magistrate].

    ·     An untranslated document which has the BNP party logo on it.

    ·     An untranslated document that appears to be newspaper clippings.

    ·     A 61-page submission from the migration agent.

    Tribunal hearing

33. The applicant gave oral evidence in support of his claims at the Tribunal hearing. The Tribunal utilised the s 424AA procedures under the Act where required and in some cases, used those procedures to raise concerns with the applicant for the sake of convenience even though the concerns were not ‘information.’ Where relevant to the Tribunal’s findings, the applicant’s oral evidence is included in this decision record.

    Post-hearing evidence

34. After the Tribunal hearing, the applicant provided the Tribunal with several documents, including:

    ·     A document identified as a ‘translated copy of a certificate from the BNP’ dated 13 January 2017.

    ·     A document identified as a ‘translated copy of newspaper report from Munshigonjer Kagoj entitled “Attempt to explode petrol bomb at voting centre in Tongibari” dated 6 January 2014.

    ·     A document identified as ‘translated copy of newspaper report from Khabar 7 entitled “Chhatradal leader dies in Tongibari after police chase” dated 7 January 2014.

    ·     A submission dated 23 December 2020 addressing the Tribunal’s failure to telephone [Official A], the [Position 1]’ during the Tribunal hearing/

    ·     A statement made by the applicant dated 5 January 2021, attaching several attachments including:

    a.A request to the department to provide the applicant a copy of his interview with the delegate (the applicant claimed he would not be able to address the Tribunal’s concerns about what he said at the delegate interview without it)

    b.A screenshot of what appeared to be an online news report about ‘social activist [Mr A], who is the [Position 3] of the Bangladesh Awami League in Australia, and a [social media record] of an account in that name. The applicant claimed that [Mr A] was his former representative and that the applicant was not aware of [Mr A’s] membership of this group and that there was now a ‘possibility that Awami Leaque authorities are now aware of the applicant’s involvement with the BNP in Australia.

    c.A screenshot of an article from SBS news which the applicant claimed demonstrated that people who express their opinion overseas face arrest on their return to Bangladesh.

    FINDINGS AND REASONS

35. The issue in this case is whether the applicant is a ‘refugee’ or a person who meets ‘complementary protection’ or is a member of the same family unit of such a person.

36. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    What is the county of reference?

37. The applicant claims citizenship of Bangladesh and no other country. There is no evidence to undermine the applicant’s claims that he is a Bangladesh citizen with no right to enter and reside in any third country. Therefore, the country of reference for the purpose of the protection visa application is Bangladesh.

    Is the applicant a witness of truth?

38. Having considered all the evidence, the Tribunal ultimately concludes that the applicant is not a witness of truth concerning his past claims of harm in Bangladesh. The Tribunal’s findings are made on the totality of the evidence.

39. The Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety for the following reasons.

    Lack of evidence to support claim that the applicant’s former migration agent has provided information about his activities to Awami League/Bangladesh authorities

40. In a written submission after the Tribunal hearing, the applicant claimed that it was possible that the Awami League authorities were now aware of his active support of the BNP due to the fact that his previous migration agent, [Mr A], was identified in [a] news report as being [Position 3] of the Awami League in Australia. The applicant claimed he did not know of this association previously.

1. The department file indicates that the applicant’s protection visa application was lodged with the assistance of [Mr A], as was the review application to the Tribunal. [Mr A] ceased acting for the applicant in November 2020, and the applicant’s current representative commenced acting in December 2020 shortly before the Tribunal hearing. The applicant’s statement does not address how he became aware that his former migration agent was associated with the Awami League.

2. The Tribunal is satisfied on the basis of the article which contained a photograph of [Mr A], and the [social media record] which identifies him to be [Position 3] of the Bangladesh Awami League in Australia, as well as a director of [a named business], that the applicant’s former migration agent and the [Position 3] of the Awami League in Australia are one and the same person.

3. However, the applicant provided the Tribunal with no evidence that [Mr A] had provided information about the applicant’s protection claims, or activity in Australia, to Awami League members or officials in Bangladesh. It is entirely speculative to suggest that [Mr A], who is an Australian legal practitioner, would breach client privileges and ‘pass on’ information to people in Bangladesh because he did not share their same political opinion.

4. The Tribunal is not satisfied that [Mr A] has provided any information about the applicant to any person, group or authority in Bangladesh and is not satisfied that this will occur in the future, noting that [Mr A] is an Australian legal practitioner and that any information provided by the applicant to [Mr A] is protected by legal professional privilege. The Tribunal is not satisfied that there is a real chance of harm to the applicant in Bangladesh due to [Mr A] being his former migration agent.

   Inconsistent evidence about the applicant’s support of and/membership of the BNP in Bangladesh demonstrative that there is no truth to that narrative

5. The applicant told the Tribunal that he ‘joined’ the BNP in Bangladesh as a supporter from 2008 and became a member in 2011 when he received a membership certificate. He said it was in March 2011 that he became a member. When asked about how long the certificate of membership was valid for, the applicant said that there was no expiration date. He said that he had his membership certificate with him until 2015, which was when he left Bangladesh.

6. He was asked about what his duties involved when he became an ‘executive member’ per his statement. He said he became an executive member because he was respected and coming to meetings. When asked what the difference was between an ‘executive member’ and an ordinary member he said the difference was ‘respect.’ The Tribunal asked the applicant to clarify whether the executive member was part of an organising committee and he said he was. He said it was about six months after he became a member of the BNP in Bangladesh that he became a part of the executive committee. He said it was about September 2011 that he became an executive member.

7. He said he took his membership certificate with him to [Country 1] and that it was this certificate that he submitted to the department. The Tribunal observes that this ‘Membership Certificate’ from the BNP certificate from the [Village 1] Union is dated 13 January 2017.

8. He confirmed that the police in Bangladesh had never arrested him or detained him in Bangladesh due to his political activity.

9. At the Tribunal hearing, the Tribunal observed that the applicant had provided inconsistent evidence about when he became involved with the BNP in Bangladesh. In his first written statement, the applicant claimed that he became a member of the BNP in 2008. At the delegate interview with the delegate the applicant said that he became a member of the BNP in May 2007 and became a member of the executive committee of the BNP in 2008.  The Tribunal observed that it was only when the delegate pointed out the inconsistency between the applicant’s written statement (which suggested that he became a member of the executive committee in 2011) and what he said at the delegate interview, that the applicant changed his evidence to suggest he became a member of the executive committee in 2011. The Tribunal also observes that the applicant’s statement of 10 December 2020 claims that he was invited to formally join the BNP in 2011 and that he was only a supporter of the BNP from 2009.

10. The Tribunal formed a view that this inconsistency suggested that the applicant was not a member of the BNP as claimed because it would be reasonable to expect that the applicant would provide consistent evidence about something as basic as when he joined a political party and when he became a member of an executive committee. In response to the Tribunal’s concern, the applicant said at the Tribunal hearing that he did not wish to respond.

11. Concerning the applicant’s claim that he had brought his BNP membership certificate with him to Australia and submitted this to the delegate, the Tribunal observed to the applicant that he had provided the delegate with a certificate from the BNP in Bangladesh dated January 2017, not 2011 when he claimed the certificate was issued. This demonstrated to the Tribunal that the applicant fabricated his claimed membership of the BNP in Bangladesh because the document the applicant produced was at odds with the applicant’s oral evidence about when the document was produced. Clearly, he could not have brought a certificate dated January 2017 with him to Australia. The applicant responded to the Tribunal’s concern saying he did not wish to comment.

12. The Tribunal’s assessment in light of the above concerns is that the certificate from the Bangladesh Nationalist Party ([Village 1] Union) dated 13 January 2017 is not a genuine document. The totality of the concerns that the Tribunal has about the applicant’s credibility lead the Tribunal to find that the letter of [Official B]  dated 5 September 2020 is not reliable. The Tribunal acknowledges the applicant provided two photographs of himself with people he identified as being local politicians in Bangladesh, but given all the concerns, the Tribunal does not accept that those photographs show anything more than the applicant being photographed with people in Bangladesh.

    Inconsistent evidence about conduct concerning the BNP in Australia demonstrative that the applicant has a flexible approach to the truth

13. At the Tribunal hearing, the applicant claimed that some nine months after his arrival in Australia in August 2016, he learned that there was a BNP branch in Australia through work colleagues. He signed his membership form in January 2017 and had, at the time of the Tribunal hearing, attended five meetings. He produced a letter from [Official A], who was identified as the [Position 1] of the BNP in Australia dated [in] November 2020 which corroborated the applicant’s involvement with that organisation from January 2017. The applicant also produced a Membership Application Form of the BNP in Australia which was dated [in] January 2017.

14. The Tribunal asked the applicant about how long he had been attending BNP meetings in Australia prior to signing the Membership Application Form [in] January 2017. The applicant said he attended a ‘number of meetings’ and after that, [Official A] told the applicant that as the applicant had been attending regularly, he could be granted membership and a certificate would be provided. The applicant further specified that the ‘number of meetings’ occurred over a timeframe when he was ‘not working’ and he would attend weekly, but then when he started working, he would attend once a month. He said that the period of time before he received the Membership Application Form was about three months.

15. The Tribunal observes that according to the protection visa application form, the applicant commenced work in August 2016, and there is no evidence of his employment in Australia prior to that date.

16. However, at the delegate interview on 27 January 2017 (which was after the applicant signed the Membership Application Form) the applicant was asked about his political involvement with the BNP since his arrival in Australia. The applicant said that he was not involved because there was no BNP in Australia, and he did not know who to get involved with.

17. Given the timing of the applicant’s involvement with the BNP in Australia since January 2017 (according to the letter), the timing of the Membership Application Form, and the timing of the interview with the delegate that same month where no involvement was declared by the applicant, the Tribunal is satisfied that the applicant joined the BNP in Australia [in]  January 2017 as evidenced by the Membership Application Form, but did not tell the delegate about this at the interview on 27 January 2017 because he was aware that the delegate may question the timing of joining that party, being [number] days before the interview. The fact that the applicant joined the BNP in Australia [in] January 2017 but told the delegate that he was not a member of the BNP in Australia because he ‘could not find anyone’ demonstrates that the applicant has a flexible approach to the truth and that he is prepared to say, or not say, anything that he believes will assist him to get a positive migration outcome.

18. The Tribunal finds it curious in the extreme that the applicant would arrive in Australia in August 2016 and refuse to leave because he claimed to fear harm in Bangladesh due to his political opinion and activity in Bangladesh yet would not take any steps to join the Australian arm of the BNP until [number] days before the delegate interview. This is not consistent, in the Tribunal’s assessment, with the applicant having a genuine political opinion supportive of the BNP. The Tribunal does not accept that it would have been difficult for the applicant to find a BNP branch in Australia. The Tribunal is satisfied that the failure of the applicant to engage in any political activity in Australia prior to joining the Australian arm of the BNP in January 2017 indicative that he does not hold a genuine political opinion supportive of the BNP, and that he only joined the Australian branch of the BNP to lend credibility to his claims.

19. In response to the Tribunal’s concern that the applicant only became involved in the BNP in Australia to strengthen his protection claim, the applicant said he did not wish to comment.

20. The Tribunal observes that the applicant requested that the Tribunal take oral evidence from [Official A]. The request was made in the ‘Response to hearing invitation form’ and identified that the ‘evidence this person would give and how it is relevant to your case’ was identified as ‘[Official A] is the [Position 1] of Australian BNP and he knows my political activity and political profile.’

21. The Tribunal elected not to accede to the request to take oral evidence from  [Official A]. [Official A] provided a written letter in support of the applicant, and the Tribunal was satisfied that [Official A] would have given evidence consistent with the written statement, namely that the applicant was personally known to him since January 2017 and had been involved with the BNP in Australia since that time. The Tribunal accepts the applicant has been involved with the BNP in Australia since January 2017, but for the reasons discussed earlier, the Tribunal is not satisfied that this was done as a manifestation of a genuine political opinion but was done solely to strengthen and lend credibility to the applicant’s claims.

22. [Official A] does not claim to be personally aware of the applicant prior to January 2017. While the Tribunal acknowledges that the letter recalls that ‘As an opposition activist, (the applicant) participated in various anti-government rallies and demonstrations to protest undemocratic and inhumane torture on political leaders and activists including reports and editors by the current ruling government in Bangladesh.’ However, as the author was not aware of the applicant prior to January 2017, the Tribunal is satisfied that this claimed activity by the applicant was based on self-reporting by the applicant.

23. The applicant provided submissions subsequent to the Tribunal hearing about the Tribunal’s failure to accede to the request to take oral evidence from [Official A]. The Tribunal considered those submissions. However, the Tribunal accepts that [Official A] would have given evidence consistent with his written statement and accepts that the applicant has been involved with the BNP in Australia as claimed. The Tribunal would not have been assisted by [Official A] repeating the content on his written statement as his oral evidence would be no more persuasive that his written evidence.  

    Failure to seek protection with the United Nations High Commissioner for Refugees in [Country 1] demonstrative that the applicant does not genuinely fear harm in Bangladesh and demonstrative that there is no real chance of significant harm to the applicant in Bangladesh

24. According to the applicant’s protection visa application form, he left Bangladesh in December 2015 and travelled to [Country 1] that same month. He remained in [Country 1] until August 2016 when he travelled to Australia. He described the visa to [Country 1] as a ‘working visa.’

25. He told the Tribunal hearing that the purpose of his travel to [Country 1]. He confirmed that his purpose going to [Country 1] was for work. He detailed his employment in [Country 1] consistent with the detail provided in his protection visa application form. He obtained this job through his sister’s husband.

26. The Tribunal asked the applicant whether he claimed asylum in [Country 1]. He said he did not because he did not know about it and did not make any inquiries about it.

27. He found out that Australia offered protection visas in [Country 1] because many other Bangladeshis there told him.

28. He said he did not return to Bangladesh from [Country 1] because he had a real fear in Bangladesh because he was beaten up many times and there was a false case against him, which he identified as the case that was subject to a warrant which he became aware of on 17 January 2017. The Tribunal asked why the applicant would not return to Bangladesh if he only found out about the warrant in January 2017. The applicant said that in 2015 he was beaten up and had many enemies so that is why he could not return to Bangladesh.

29. He told the Tribunal that he plans to live in [Country 1] permanently but realised he was not safe there. The Tribunal asked the applicant how he had planned to remain permanently in [Country 1]. He said that [Country 1] was good for businesses and after doing business there for one or two years, people are allowed to stay. It was a robbery in February 2016 that made him decide to no longer stay in [Country 1]. The delegate asked similar questions about why the applicant did not seek protection in [Country 1] and the applicant provided a similar response.

30. The applicant’s protection visa application form makes it clear that he arrived in [Country 1] in December 2015. His first statement read that he was ‘held captive in a shop’ and could not freely move about the country’ and that it was ‘an uncivilised country and harmful living there.’ He did not provide any details of the robbery in February 2016 that he later claimed was the reason for him deciding not to stay in [Country 1].

31. It is the Tribunal’s assessment that if the applicant left Bangladesh in the circumstances where he had previously been harmed, and feared future harm if he remained in Bangladesh, the applicant would have registered with the United Nations High Commissioner for Refugees in [Country 1] shortly after his arrival in that country. The fact that the applicant made no inquiries about seeking protection in [Country 1] demonstrates that the applicant did not experience the harm claimed in Bangladesh or fear harm in the future. The Tribunal is satisfied that the applicant’s claimed robbery and circumstances in [Country 1] were fabricated by him as a means to explain why he did not register with the United Nations High Commissioner for Refugees in that country. The Tribunal is satisfied that the reason the applicant did not register with that organisation in [Country 1] is because his claims about past harm and risk of future harm are not true.

    Confused evidence about criminal proceedings in Bangladesh / Arrest warrant in Bangladesh indicative that this evidence has been fabricated

32. In the protection visa application form, the applicant declared that he had not been charged with an offence that was awaiting legal action, nor had he been convicted of an offence in any country, nor the subject of an arrest warrant. He also selected that he was not aware that he was the subject of a criminal investigation or had criminal charges pending against him. However, his written statement that was lodged with the protection visa application contained a claim that the applicant’s sister had informed the applicant that a case had been filed against him, after which time his mother and sister took the decision to send the applicant overseas.

33. The applicant told the Tribunal that at the time he lodged the protection visa application in September 2016, he was not the subject of a Bangladesh arrest warrant, which is why he selected ‘no’ to the question about an arrest warrant in the protection form. He told the Tribunal that he has an arrest warrant from Bangladesh now. He said that the arrest warrant was issued [in] February 2015. The Tribunal then clarified about when it was that he arrived in Australia, and he said it was August 2016.

34. He said that after he arrived in Australia, he came to know that police went to his house in Bangladesh with an arrest warrant. He said he found this out on [a day in] January 2017. He could remember this specific date because his father and his sister called him up and mentioned that police had given him a letter about the arrest, which was the same date that his father and sister had been handed the arrest warrant.

35. He told the Tribunal that he became aware of the false case in January 2017. He confirmed that when he left Bangladesh, he did not have any problems departing.

36. The Tribunal put to the applicant that it would be curious to depart Bangladesh if he had any case against him. The applicant said that this case only came into existence after he left Bangladesh. He confirmed that he found out about the case for the first time in January 2017 because police came to the family home on [that day in] January 2017.

37. Concerning how the applicant came to be provided with the document, and he said that after the delegate interview, he asked his father to obtain it for him. His father went to the local police station and asked for it. The applicant said that his father gave him the document on [a later day in] January 2017 the document was emailed to him. When asked why the applicant’s father needed to go to the police station and obtain a document that had already been given to his father when the police came to the family home on [the day in] January 2017, he said that his father did not have the document. When the apparent inconsistency was raised about whether his father had the document on [the first day in] January 2017 as he earlier claimed, the applicant repeated that his father did not have the document until the applicant’s father in Bangladesh obtained it.

38. The applicant told the Tribunal that at the time he lodged the protection visa application he did not have any cases against him. It was only after he lodged the protection visa application that he became aware of this when his father told him about this in January 2017. This was inconsistent with what the applicant claimed in his initial written statement where he claimed that he became aware that a ‘false case’ had been filed against him, so the decision was taken to send the applicant overseas. The Tribunal observes that the warrant of arrest is dated [in] February 2015 and raised with the applicant that his delay in providing that document, in combination with the inconsistent evidence about when he became aware that he had a case against him, may suggest to the Tribunal that the document was a fabrication. In response to this, the applicant said he did not wish to comment.

    Ability to depart Bangladesh without incident and granting of a new Bangladesh passport demonstrative that the applicant is of no adverse interest to the authorities in Bangladesh

1. When the applicant applied for the protection visa, he provided a copy of his Bangladesh passport which was issued [in] 2014 and expiring [in] 2019. By the time of the Tribunal hearing, that passport had expired, and the applicant produced a new Bangladesh passport that was issued [in] 2019 and expires [in] 2024. The new passport was issued by [Bangladesh authorities] in [Australia]. The applicant told the Tribunal that he was not asked by the Department to obtain a new valid visa, but he did so because his last passport expired.

2. According to the DFAT Country Information Report on Bangladesh dated 22 August 2019, adults applying for a passport must have a valid NIC or birth registration certificate with a 17-digit birth registration number. Applicants must provide biometric data (fingerprints and photographs) to a passport office before lodging their application. A local police officer must verify an individual’s identity.

3. The same report details that the Department of Immigration and Passports conducts immigration checks and maintains a list of all convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling, where they are suspected of leaving to avoid criminal proceedings, where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity of Bangladesh, or where doing so would be ‘contrary to the public interest.’ DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.

4. The country information suggests to the Tribunal that in the circumstances where the applicant claimed that a ‘false case’ was filed against him in Bangladesh (necessitating him leaving Bangladesh to [Country 1], it would be highly likely that the Bangladesh authorities would refuse to grant him the [2014] passport, or in the event that the passport was granted before the applicant was the subject of a ‘false case’ in Bangladesh, he would be stopped from departing Bangladesh at the airport. The Tribunal observes that the applicant claimed in a statement dated 10 December 2020 that he was formally invited to join the BNP in 2011 and was also made an executive member of the [Village 1] Union BNP, and participated in ‘programmes organised by the BNP leadership.’ That same statement details that the applicant participated in protests at a local primary school, and was the subject of an attack in March 2014 where he was accused of supporting the BNP and using his business as a political office.

5. The Tribunal is satisfied that the applicant’s ability to leave Bangladesh without incident, and ability to be issued a new Bangladesh passport is indicative that the applicant has no outstanding ‘case’ or ‘warrant’ against him in Bangladesh, that he did not engage in any political activity in Bangladesh, or that he is of adverse interest to any person or group in Bangladesh.

   Inconsistent evidence concerning [March 2014] assault and hospitalisation, and presence at bombing in January 2014 in Bangladesh

6. The applicant told the Tribunal that there was a particular incident that made him realise he needed to leave Bangladesh. He said that everyone thought his shop was a BNP office and that he was a leader and an enemy of the Awami League. In written statements dated 11 September 2016, and 10 December 2020, he detailed that he was returning home on [a day in] March 2014 from [Bazaar 1] when he was set upon by a people supportive of the Awami League and that he was attacked for his support of the BNP and the belief that the applicant was using his [business 1] as a political office. The earlier statement detailed that he was beaten mercilessly and admitted to a private clinic for 7 days.

7. At the Tribunal hearing, the applicant said that this incident occurred on [a day in] March 2015. He said it was this incident that made him realise that it was not safe for him in Bangladesh and that he would have been killed, so he went to [Country 1].

8. At the Tribunal hearing, the applicant identified the clippings as reporting incidents about a bomb blast near a [school] in Bangladesh, where the applicant was present. The applicant referred to this in his 10 December 2020 statement as protests at [a named] School. The articles related to a bomb blast and a death of a BNP leader. The articles do not mention the applicant’s name, and as best the Tribunal can understand the articles, they were designed to corroborate the fact that a bomb blast occurred.

9. The applicant told the Tribunal that the bombing occurred on [a day in] January 2014. He was present at the school but was not injured. It was a polling day, and the applicant was 500 metres away from the blast. He was asked how he felt when this happened, and the applicant said he thought that many people had been harmed or killed.

10. The Tribunal observes that in the applicant’s first written statement dated 11 September 2016, the applicant makes no reference to being present at a bombing.

11. The Tribunal accepts that a bomb blast occurred as detailed in the newspaper clippings. However, the newspaper clippings do not identify the applicant as being present, and due to the other concerns that the Tribunal has about the applicant’s credibility, the Tribunal is not satisfied that the applicant was present during this incident. The Tribunal suspects that the applicant became aware of this [January] 2014 incident and pretended he was present in order to lend credibility to his claims. If there was any truth to the applicant being present, the Tribunal is satisfied that the details of this would have been included in his initial written statement.

12. The Tribunal also does not accept that the applicant would make a fundamental mistake about the year he claimed to have been physically beaten and hospitalised in Bangladesh if that claim were true. The Tribunal is satisfied that the reason for the inconsistent evidence about the year of the [March] assault and hospitalisation was due to the fact that the assault and hospitalisation was manufactured in order to claim protection.

    Living at the same residential location for the entire time he was in Bangladesh demonstrative that the applicant was not harmed in Bangladesh, not genuinely fearful of future harm in Bangladesh, and that there is no real risk of significant harm to the applicant in Bangladesh

13. The applicant declared in his protection visa application form that he lived in [Village 1 in] Mushiganj, Bangladesh from June 1990 until December 2015 when he departed for [Country 1]. He confirmed at the Tribunal hearing that he resided at the one address during his time in Bangladesh and identified this as his family home.

14. He told the Tribunal that his [siblings] lived separately from the family home and lived with their [families], some two or three kilometres away. His family home was about 6 kilometres away from the [Bazaar 1] where the assault occurred. He said he continued to live in the family home after the assault, and that the assailants never came to the family home.

15. The Tribunal observed to the applicant that if no one came to his home after his claimed assault, it may suggest to the Tribunal that the assault was a one-off incident and unlikely to repeat itself. In response, the applicant said that after the assault he received many threats that he would be harmed and was told that he needed to leave the BNP.

16. The Tribunal struggles to accept that if the applicant was of any adverse interest to the Awami League/Awami League supporters or the Bangladesh Government, there would be no attendance of those people on his home and that he would be able to live there without bother. The fact that the applicant was able to live at the same address for his entire time in Bangladesh demonstrates that the applicant was not harmed as he claimed and demonstrates that there is no risk of harm to him in the future in Bangladesh.

    Further instances of harm discussed at Tribunal hearing not detailed in the protection visa application form indicative that the applicant has a flexible approach to the truth

17. Given the applicant told the Tribunal that despite him living at the same residential address in Bangladesh he ‘received many threats of harm,’ the Tribunal asked the applicant to detail the last threat he received in Bangladesh.

18. The applicant told the Tribunal that he was threatened and told that he would be let go this time, but the next time he would not be let go. He said this occurred in June 2015 when he went shopping in a different bazaar. His rickshaw was stopped and he was threatened. He detailed that 3 people were there and said that he as very fearful when he was stopped because he thought he would be beaten up in the same way he was beaten the last time. He identified that the 3 people were part of the 5-person group that assaulted him previously as detailed in his protection visa application. He told the Tribunal that they said he had to stop being involved in the BNP and that if the assailants learned that the applicant spoke against the Awami League leader, they would not give the applicant a chance to survive. The applicant said that he was let go but told him to remember what they said, which he did, but he had to support the BNP. He claimed that it was this incident that made him realise he needed to leave Bangladesh.

19. The applicant did not detail this last threat in his written protection visa application. Given that the applicant told the Tribunal that he ‘remember what the assailants said’ concerning the June 2015 incident the fact that it was this incident that made him realise he was no longer safe in Bangladesh, and that 3 of the assailants were the same assailants who apparently assaulted him previously, it is reasonable to expect that this incident would have been detailed in the protection visa application if it were true. The Tribunal observes that the incident was not detailed in the subsequent written statements or at the interview with the delegate. The failure to detail this June 2015 incident suggested it was made up and the applicant was prepared to manufacture evidence to get a protection visa.

20. In response to this concern, the applicant responded at the Tribunal hearing that the delegate did not ask him about this incident. In a subsequent written statement, the applicant wrote that he advised his previous representative about this incident and ‘somehow it was not included in his statement.’ He claimed to have always provided consistent evidence.

21. The Tribunal is not persuaded by this response for several reasons.

100.   First, the delegate did ask the applicant if he had put forward all his protection claims and he did not speak of this June 2015 incident.

101.   Second, the statement in the protection visa application was written by the applicant which he signed. He did not detail the June 2015 incident. The Tribunal’s assessment is that the applicant seeks to lay the blame on his previous representative to explain why the incident was not included in that statement.

102.   Third, the June 2015 incident was not detailed in his written statement of 10 December 2020, despite the earlier assault being detailed in that statement.

103.   In the Tribunal’s assessment, the applicant fabricated at the Tribunal hearing the incident in June 2015 in order to persuade the Tribunal that he was a person of adverse interest in Bangladesh when the Tribunal pointed out that the applicant continued to reside at the same address in Bangladesh after the earlier assault which suggested that he was not at risk of harm. The Tribunal is satisfied that the applicant has a flexible approach to the truth and was prepared to fabricate evidence in order to obtain a protection visa.

CONCLUSION

104.   The Tribunal is not satisfied that the applicant was a supporter or a member of the BNP in Bangladesh, nor is it satisfied that the applicant was harmed or the subject of any ‘false case’ or ‘warrant’ from Bangladesh. The Tribunal is not satisfied that the applicant left Bangladesh and refused to return to that country from [Country 1] because he feared future harm in Bangladesh. The Tribunal’s judgment is that the applicant fabricated that narrative in order to lodge his protection claim.

105.   The Tribunal accepts that the applicant has engaged in activity connected with the BNP in Australia as outlined in the letter of [Official A], namely attending a protest in Australia in 2018 and attending [a meeting] for that organisation in December 2018. The Tribunal is prepared to accept that the applicant has attended meetings with that organisation. However, given the evidence as a whole, the Tribunal is not satisfied that the applicant attended those meetings or participated in any activity with the Australian branch of the BNP for any reason other than to strengthen his protection claims and lend credibility to his narrative. The Tribunal is not satisfied that the applicant would participate in any political activity with the BNP upon his return to Bangladesh for that reason.

106.   Concerning whether the applicant faces a real chance of serious harm or a real risk of significant harm because of his conduct in Australia with the Australian branch of the BNP, the Tribunal notes the 22 August 2019 DFAT Country Information Report on Bangladesh reports that DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.

107.   The Tribunal notes the applicant provided a 12 September 2018 SBS news report about the arrest of Dr Shahidul Alam on the charge of spreading propaganda (apparently due to his photographing protest of students in Bangladesh calling for better road safety and appearances on Al Jazeera and [social media] discussing same). It was suggested that this demonstrated that people who express their opinion overseas face arrest upon their return to Bangladesh. The Tribunal’s understanding of that article is that Dr Alam was present in Bangladesh when he made those criticisms. His situation is not comparable with the applicant. The applicant has not appeared on Al Jazeera or [social media] criticising the government.

108.   The Tribunal is not satisfied in the circumstances of this particular applicant (who has engaged in conduct in Australia only with the intention of seeking a protection visa) is a real risk of serious harm or a real chance of significant harm in Bangladesh due to that political activity in Australia.

Refugee

109.   For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Bangladesh due to his race, religion, nationality, membership of a particular social group, or political opinion.

110.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Complementary protection

111.   For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.

112.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

Member of the same family unit

113.   For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) of the Act and holds a protection visa.

114.   Therefore, the applicant is not a person who meets s 36(2)(b) or (c) of the Act.

decision

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

Nathan Goetz
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

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

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…