1704927 (Refugee)

1704927 (Refugee) [2021] AATA 919 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704927
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:David McCulloch
DATE:10 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2021 at 9:04am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party supporter – death threats from Awami League supporters – victim of kidnapping and beatings – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 19 May 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 February 2021 at 9:30am. The Tribunal was assisted through the use of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
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. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 22 August 2019, a copy of which was provided to the applicant at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant applied for [a] visitor visa offshore on 24 April 2016, which was granted on 2 May 2016. The applicant arrived in Australia [in] May 2016. The applicant applied for the protection visa on 19 May 2016. Prior to coming to Australia, the applicant visited [Country 1] from [date] December 2012 until [date] December 2012. The applicant visited [Country 2] from [date] October 2014 until [date] October 2014. The applicant then visited [Country 3] from [date] October 2014 until [date] October 2014. The applicant visited [Country 4] from [date] October 2014 until [date] October 2014. The applicant visited [Country 1] from [date] March 2016 until [date] March 2016. The reason listed for all of the travel is ‘tourism’.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Dhaka, Bangladesh. The applicant is a Sunni Muslim of Bangladeshi ethnicity who speaks, reads and writes Bengali. The applicant married [in] January 2014 in Dhaka. The applicant’s mother, father and wife reside in Bangladesh, and the applicant is in contact with them by phone once a week. The applicant lived at one address in Dhaka, Bangladesh from birth until May 2016. The applicant attended primary and secondary school from [year] before graduating from Year 8 at [named] High School, Dhaka in [year]. The applicant was the owner of a [store in] Dhaka from 2000 until May 2016.
In the application forms, the applicant claims that he was involved with BNP politics in Bangladesh and was the victim of political harassment in his workplace and home. The applicant claims that he received death threats from Awami League supporters, who try to destroy the opposition party leaders, workers, and supporters. The applicant claims that the Awami League members tried to kill him several times. The applicant claims that he will be harmed and mistreated by the Awami League government. The applicant states that he and his family lodged a complaint with the police against an Awami League worker, but the police refused to take the complaint as it was against the government party. The applicant claims that he moved to Chadpur but the Awami League members identified him and threatened him.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I, [applicant name], son of [name] of [Address 1]. Present address is [Address 2] do hereby solemnly state and declare that:
I am making this statement in relation to my claim in accordance to the United Nations Conventions 1951 as amended 1967 protocol related to the status of refugee.
I was born in [year] in Dhaka, Bangladesh. My father is involved in politics. He supports Bangladesh Nationalist Party (BNP). So from my childhood, I saw local politician to visit my house and often I met local leaders of BNP when I went out with my father. So from my childhood, BNP was becoming my favourite party. As Dhaka is the capital city of Bangladesh and the centre of all political party. I saw the political activities very closely. Tareq Zia (Former Prime Minister’s Khaleda Zia’s elder son and the joint senior secretary of BNP) was my hero that time. I often thought myself to be like him. When I was [age] years of age, in 2010 I joined our [District 1] Jubodol (youth alliance of BNP) and took part in all activities of BNP.
In 2012, I became the [Position 1] of BNP Jubodol [District 1] (City) In 2014, I improved my position in the party and hold a position of [Position 2] of BNP, [District 2], and [District 1]. After became the [Position 2] I devoted my life for the party. I increased my party activities drastically. My activities became an eyesore for the local Awami League. Several times they threatened me to stop my politics from Bangladesh Nationalist Party. However I never stop the politics from Bangladesh Nationalist Party (BNP).
In 5 January 2014, General elections were held in Bangladesh, in accordance with the constitutional requirement that the election must take place within the 90-day period before the expiration of the term of the Jatiyo Sangshad on 24 January 2014. The elections were controversial, with almost all major .opposition parties boycotting and 154 of the total 300 seats being uncontested. Around 21 people were killed on polling day.
In February 2014, while I was returning home from shopping from Basundhara City, Karwan Bazar, I was kidnapped by a group of Awami League cadres and they kept me in an unknown place and ill -treated me. After one week later I was released from there by paying huge amount of ransom ([amount] BD Taka) by my family members. After that above incident I became very much sick and scared and it has made such a situation that I could not sleep even night I wept. When I tried to sleep I found a group of people were coming to kill me. I had a nightmare. Still I am facing nightmare.
In 11 August 2014, at around 10 pm when I was returning home from Mohakhali, Dhaka I was attacked by a group of Awami league cadres in front of [location] and they beat me mercilessly. When I was near to death, they left me on the foot path. The local people found me and got me admitted to the nearest private clinic. I was released from the clinic after 10 days.
Since then the party leaders advised to stay in safe as Awami league is in power. Situation became worse at the beginning of 2015 when present Awami League Government announced that they were going to punish all Rajakars (war Criminal) who helped Pakistanis at the time of liberation war. They arrested all our senior party leaders. Even we cannot make any movement against the government, if they found that we gather they arrest us. Sometimes they arrest BNP man without any reason.
During 2014-2015, I was also facing troubles in my work place. The Awami supporters always tried to grab all good opportunities. Even I lost so many chances for promotion only for being a member of BNP. Once I protested against them, they directly threatened me that if I would do same thing in future they would kill me. That evening when I finished my work, some of them 4 of them caught me and punch me several times and also warned me if I would tell anyone they would kill me.
On July 2015 the local Awami League cadres attacked me at [named] Market. They snatched me to [location] and they physical wound. One of my friends came to help me, they also beat him severely. They threatened me words that “your party is no more in power; nobody can save you from now on”; My parents went to police station to file a case but were not able to do so. On the other hand a false case was filed against me to doom my political future. Furthermore the police came to our house to arrest me after the 5 days of the incident where I was in my relatives’ house to avoid further attack. When I had been informed that police were searching me, I went to hide myself m my father-in-law’s house in Chadpur for one month to avoid arrest.
After the above incident my parents started to thinking about my safety and became determined to send overseas for the sake of my safety.
By this time, I applied for a Visitor visa for Australia and I have been granted the tourist visa. [In] May 2016, I arrived Australia. I strongly believe that no one going to kill me here and now I am in a safe place.
I now fear being harmed by opposition party members of the Awami League. I also fears harm and mistreatment from the government authorities who listen to whoever is in power. I also fear from my relatives and other who are Awami minded.
I fear this harm because I was an active member of BNP. I had bitter experience in the past from government party members.
The Bangladesh government authorities cannot protect me if I go back to Bangladesh. Bangladesh government authorities like the police, RAB and court will listen to the government. As my party is not in power, I will not receive effective protection.
I would request to the Government, please consider my situation to allow me to stay in Australia. I do have a fear, which is well founded in the circumstances that there is a real chance that I would find myself a victim of persecution if I returned to Bangladesh.
My life is in grave danger. I am strongly believed that all that mentioned will fall under the UN’s convention for the definition of refugee. I am asking for safety of my life from government as a human being country.
The applicant provided the following additional statement to the Tribunal dated 28 January 2021 (not corrected for spelling or grammar):
1.As my father was involved with BNP politics at Dhaka. Bangladesh. Hence, I liked BNP (Bangladesh National Party) as a good political party in Bangladesh and my best political leader in Bangladesh is Mr. Tariq Zia.
2. I joined with BNP in the year of 2010 at that time my age was [age].
3. I was young that time so I joined with the Jatiotabadi Jubodal at [District 1] Branch, Dhaka as an executive member.
4. Two years later I became [a Position 1] of the Jubodal at the same branch and 2014, I became a [Position 2] of the same branch.
5. When I became [Position 2] of the branch ([date]/01/2014) then my political activities were increased, and the opposition (AL) did not like my working, so I became a target for AL goons in the [District 1] area.
6. On 20th Feb 2014 I am returning home from Kawran Bazar and reached at [location] 6:30pm by a three-wheeler then 5-6 AL goons kidnapped me.
7. The kidnappers mistreated and locked me in unknow dark in place in Dhaka for one week, later my family paid TK: [amount] ransom to the kidnappers and later they released without any harm.
8. I was again attacked by the AL goons on 11/08/2014 in front of [location], when I was returning home from Mohakhali finishing a meeting with my business friend [named].
9. I was nearly death by that attack, the passer-by recued me and admitted me into private hospital. I was stayed 1O days in the hospital for treatment.
10. Since that attack I was in hiding as advised by the senior leaders at our area.
11 . Beginning of the year 2015, the political situation in the country where worst as the illegal AL government killed and arrest lots of BNP leaders and activists when BNP and its 20 parties' alliances protests against AL Govt. for a free and fair election in the country.
12. During the years of 2014-2015 I faced a continuous trouble from AL supported businesspeople. These people always gained the big contact and order from the government agencies when I protested about the preference then the AL goons physically assault and abused me.
13. In July 2015 the AL goons attacked me in the [named] Market and forcibly took me to [location] where they had beaten severely me. The AL goons also beaten my friends who went in field to rescue me.
14. My parents went to make a criminal case against the AL goons, but police refused to take any case against AL criminals.
15. Though I was attacked by the AL criminals, but the police came to arrest me five days later of that incident and as the AL goons lodged false criminal cases against me.
16. Due to fear of arrest by the police I was hiding in our relative's house and decided to flee the country.
17. With the help of my family friend, I have applied for Australian tourist visa on 26th April 2016 to flee the county.
18. On 2nd May 2016, I received my tourist visa and [in] May 2016 came to Australia using that visa.
19. My life was very unsafe before I fled from Bangladesh.
20. I want to go back my county when BNP will be power.
21. I had enough resources to survive in my country as successful businessman before I fled Bangladesh.
22. I am very much scare to return my country in AL era.
23. If I go back to my country the AL goons will kill me.
24. According to stated reasons I am unable to return my country. And I am seeking shelter/protection from Australian Government for my secure life according to UN Refugee Law of 1951 and Optional Protocol of 1967 where Australia is a party
The applicant also provided a letter of support from [a named person], [Position 3] of the Bangladesh Nationalist Party (BNP) Australia, dated 5 November 2020. The letter states that the applicant is personally known to the writer from October 2012 as a general member of the organisation (BNP). The organisation works under the umbrella of the mainstream community. The writer is aware of the applicant’s claim for protection and states that he has observed violence as endemic in Bangladesh’s political culture. The letter states that the writer is aware that the applicant participated in various anti-government protests, and that the applicant’s life would be in jeopardy if he returned to Bangladesh. The letter states that the applicant has been involved in community activities since his arrival in Australia and the applicant is now familiar with Australian culture. The letter states that the applicant is a hard working social worker, and displays honesty and integrity towards his responsibilities. The writer believes the applicant could be a potential asset to Australia.
Independent information
The DFAT Country Information Report – Bangladesh, 22 August 2019 provides the following information on political opinions and violence in Bangladesh (underlining added):
Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.
The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors (see Political Auxiliary Organisations).
Being a member of a political party or one of its auxiliary organisations may assist in getting a job (see Employment). There are, however, a very large number of job seekers in Bangladesh, and such membership is unlikely to be the sole determinant of whether or not someone is able to gain employment. Social networks and personality-driven politics are important in Bangladesh. Payment of bribes to secure employment is also common, along with patronage and cronyism.
DFAT has not seen evidence of forced recruitment to political parties, and considers it unlikely to occur. Parties hold membership campaigns each year, through which parties recruit large numbers of members. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshis have a limited interest in politics, and those that do are not necessarily members of any party.
Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.
Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI (see relevant sections). These restrictions have included:
- using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;
- using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and
- pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.
Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.
While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country (see Media). Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.
DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.
…
Bangladesh Nationalist Party (BNP)
The BNP was founded in 1978 following the assassination of President Mujibur Rahman, and was established on a platform of Bangladeshi nationalism and Islamic identity. At its founding, and at the 2014 election, it cooperated with JI. In the lead-up to the 2018 election, however, BNP attempted to distance itself from JI as a way to demonstrate that it did not support extremist ideology.
The BNP Standing Committee is the top decision-making body of the party. Various secretaries have responsibility over political portfolios, such as foreign affairs or information, within that body. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.
BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.
Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.
DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.
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Exit and Entry Procedures
The Department of Immigration and Passports conducts immigration checks and maintains a list of 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 or security 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.[1]
[1] DFAT, Country Information Report – Bangladesh, 22 August 2019, pp. 24 – 27 & 49 paras [3.61] – [3.70], [3.77] – [3.82], [5.24]
Hearing, credibility, findings, and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, the applicant has given inconsistent and unsatisfactory evidence in relation to his leadership positions within the branch of the youth wing of the BNP that he was involved in.
The applicant’s positions in the [District 1] Jubodal were explored in the hearing. The applicant indicated that he joined in 2010 as an ordinary member and in 2012 became the [Position 4] of the branch. The applicant was asked if the [Position 4] was the leader of the group and the applicant responded that it was. The applicant indicated that in 2014 he became the [Position 2] of the group. The Tribunal asked the applicant to clarify how the role of [Position 2] was different from that of the [Position 4] and the applicant said that it was a wider role. The applicant indicated that the [Position 2] was not the leader. The Tribunal indicated to the applicant that this would suggest that he went from the position of leader to a lesser role. The applicant then changed his evidence to indicate that in fact the [Position 2] was the leader and that the [Position 4] was a lesser role. The applicant said that he was confused because he did not understand what the Tribunal meant by being in charge, being leader.
The Tribunal noted to the applicant that in his written claims he indicated that in 2012 he became the [Position 1] in 2012, rather than the [Position 4]. When asked to provide a response to this inconsistency, the applicant indicated that this was because he was nervous.
In relation to this evidence, the Tribunal asked the interpreter if there was a clear distinction in Bengali in terminology as between the description of [Position 1] as opposed to [Position 4]. The interpreter indicated that there was a clear distinction in Bengali.
The Tribunal also noted to the applicant an additional credibility concern in relation to this issue, being the fact that in the interview with the delegate when the applicant was asked about his role in the Jubodal he only referred on each occasion to him being the [Position 1] of the group, and not mentioning that he later became the [Position 2]. In response, the applicant indicated that this was because he was nervous in the interview.
The Tribunal also noted to the applicant that it is normally considered that the title of [Position 4] would indicate a superior role to a person with the title of [Position 2], as opposed to the applicant’s evidence that the [Position 2] was the superior role.
The Tribunal is not persuaded that the various inconsistencies and defects in the applicant’s evidence as to the positions he held within the Jubodal are, cumulatively considered, explained by understandable nervousness or confusion. The Tribunal is also not satisfied that a [Position 4] would have an inferior role to the [Position 2].
The Tribunal considers that the inconsistencies and defects in evidence identified are undermining of the credibility of claims by the applicant as to leadership positions he held within a youth wing of the BNP, and the applicant’s credibility generally.
Secondly, in the hearing the applicant was not able to articulate with any convincing clarity or detail the nature of the roles that he undertook respectively in their positions of [Position 4] and then [Position 2]. The applicant spoke with a vagueness and lack of specificity in relation to the roles, and did not articulate any meaningful distinction between the roles of the [Position 1] and the [Position 2]. This is not a credibility issue which on its own is determinative of adverse credibility findings, but does buttress the more direct and significant credibility concerns.
Thirdly, similarly in relation to the above issue, the applicant did not provide oral accounts in the hearing of the three physical encounters he had with members of the Awami League commencing in February 2014 which persuaded the Tribunal that the applicant was recounting events that actually occurred.
The applicant did not provide sufficient detail, nuance or make reference to peripheral events and circumstances that the Tribunal would expect if the applicant was truthfully explaining the detail of physically violent and traumatic events. There was a rehearsed quality to the applicant’s evidence, not significantly varying from the detail set out in the written claims.
At various points when the Tribunal was asking the applicant to provide detail of these events, it emphasised to him that he should go through in significant detail what had happened so that the Tribunal was in a position to be satisfied that the applicant was describing events that have actually happened to him. The applicant failed to provide accounts which persuaded the Tribunal of the truth of the circumstances that the applicant was recounting.
Fourthly, the applicant has been inconsistent as to the period of his detention in the February 2014 incident. The written claims indicate that the applicant was detained for 10 days. In contrast, in the Tribunal hearing the applicant indicated that he was detained for seven days. The Tribunal asked the applicant to confirm that he was detained for seven days, and the applicant confirmed that this was the length of time he was detained. In response to the inconsistency being put to him, the applicant indicated that he was nervous.
The Tribunal certainly accepts nervousness as part of the Tribunal process. Nevertheless, the Tribunal has concerns that the applicant would be readily confused as to the period of time that he was detained. These would be events that the Tribunal considers would be very firmly and impactfully ingrained in the applicant’s mind. This is not a major credibility concern, but it is considered cumulatively, together with other matters.
Fifthly, the applicant has been inconsistent as to when he suffered an injury and scar to his thumb/hand. In the hearing, the applicant indicated that one of his injuries in the attack and detention in February 2014 was an injury and scar to his thumb. When the applicant pointed to the injury, it was, in fact at a point at the base of the applicant’s hand, near the base of his thumb.
In the hearing, the applicant indicated that in the attack that occurred in the incident in August 2014, while he suffered significant bruises, there was no injury to his thumb/hand.
The Tribunal put to the applicant in the hearing that this was inconsistent with his evidence in the interview with the delegate where he made reference to the second attack in August 2014 causing the scar on his thumb.
In response, the applicant indicated that he may be mixing up what injuries occurred when.
Notwithstanding this explanation, the Tribunal has credibility concerns as a result of the applicant mixing up when he obtained this injury.
Sixthly, the applicant did not provide evidence in the hearing of injuries suffered in the attack that occurred in August 2014 that would appear to have justified 10 days admission to hospital. The applicant confirmed in the hearing that he was hospitalised for 10 days, but was not able to articulate significant diagnosed injuries other than bruises from being hit. The applicant did not provide evidence of broken bones or any evidence of the diagnosed injury that would seem to have warranted 10 days in hospital. This creates some credibility concerns for the Tribunal.
Seventhly, the applicant’s trips to [Country 4], [Country 3] and [Country 2] in October 2014, yet him returning to Bangladesh in the circumstances of the proceeding claimed attacks, particularly when he would have had an ability to have claimed protection, at least in [Country 2], are undermining of the applicant’s claims of harm to that point.
In the hearing, the applicant indicated that after his physical harm and detention in February 2014 he had a fear for his safety in Bangladesh but was forced to remain in the country. In the hearing, the applicant agreed that his fears were compounded by the attack in August 2014.
The Tribunal put to the applicant, in those circumstances, it seemed unusual that the applicant would have returned from his overseas visits two months after the August 2014 attack, particularly when he would have had the option to apply for the equivalent of a protection visa in [Country 2].
In response, the applicant indicated that this trip was a delayed honeymoon with his wife and that he had not, at that point in time thought about applying for protection.
The Tribunal has credibility concerns with the applicant’s claims as to what had happened to him in Bangladesh as a result of these trips, his return to Bangladesh, and the applicant failing to make an application for the equivalent of a protection visa. The scenario of trips to overseas countries on a delayed honeymoon yet returning to Bangladesh does not sit convincingly with the claimed attacks, detention and harm that had been inflicted on the applicant before the extended honeymoon.
Eighthly, the applicant has provided inconsistent and unsatisfactory evidence in relation to police visiting his family home to arrest him five days after the attack in July 2015.
In the Tribunal hearing, the applicant indicated that he was not sure that a false case had been lodged against the applicant, but that this was threatened would be the case to his father when his father complained to the police about the attack. This is inconsistent with written claims that there was a false case lodged against the applicant.
When the Tribunal put to the applicant that written claims indicate that five days after the July 2015 incident, police came to arrest the applicant he agreed that was the case. The Tribunal put to the applicant that this seemed inconsistent with his earlier evidence in the hearing that it was not until 10 days after the attack that he and his father went to the police to make a complaint about the attack. In response, the applicant indicated that his father did not want to worry the applicant and did not tell him about the police visit. The Tribunal noted to the applicant that his own knowledge of the visit was irrelevant to the fact that the applicant’s father would not have taken the applicant to the police station to complain about the attack, if there had been an arrest warrant against the applicant.
The Tribunal considers that this evidence is very seriously undermining of the truth of what the application is claiming, and his credibility generally.
Ninthly, the applicant has provided inconsistent evidence as to relocating from his home in Dhaka to his parents-in-law’s to escape from the problems that occurred in July 2015. As discussed with the applicant in the hearing, this is inconsistent with the information in the protection visa application form that he both worked at his [shop] in Dhaka and lived in the family home up until coming to Australia in May 2016. These facts were confirmed by the applicant at the beginning of the Tribunal hearing.
In response to these inconsistencies being put to the applicant and hearing, he indicated that he did return to Dhaka from being in hiding. When the Tribunal sought to clarify when this occurred, initially the applicant gave evidence that the return was some months before he left for Australia, before changing this evidence to indicate that it was only very shortly before he left for Australia. The applicant indicated that when he returned to Dhaka he did not stay with his parents and lived elsewhere.
The fact of the applicant living elsewhere is not consistent with written claims and initial evidence in the hearing that the applicant remained living at the family home up until coming to Australia. The Tribunal is further not satisfied that if the applicant had been in hiding during the period before leaving for Australia, that he would not have made reference to this in the beginning of the Tribunal hearing when it asked the applicant as to whether he lived and worked in Dhaka up until coming to Australia.
These matters are undermining of the applicant’s credibility.
In the hearing, the applicant addressed various credibility concerns by saying that the many adverse events had created difficulty for him and memory difficulties as explaining the various inconsistencies. The Tribunal notes that at the beginning of the hearing the applicant indicated that there was no impediment that he suffered in terms of answering the Tribunal’s questions and talking about his claims.
The Tribunal considers the nine credibility concerns cumulatively. Considered together, they are very significantly undermining of the applicant’s credibility. The Tribunal is not satisfied that the cumulative impact of the credibility concerns is explained by understandable nervousness nor is the Tribunal satisfied that the applicant suffers any significant memory loss, due to him providing no indication of this at the beginning of the hearing.
The credibility concerns result in the Tribunal not being satisfied as to key substantive claims by the applicant. The Tribunal is not satisfied that the applicant held a leadership position or was otherwise involved in a branch of the youth wing of the BNP. The Tribunal is not satisfied that the applicant suffered any of the attacks, harm and detention as claimed by members of the Awami League as result of the applicant’s involvement in the BNP. The Tribunal is not satisfied that any false cases have been lodged against the applicant. The Tribunal is not satisfied that there is any adverse interest or intention to harm the applicant in Bangladesh by the Awami League or other authorities or individuals for the reasons claimed.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in Bangladesh as a result of leadership positions he has held within the youth wing of the BNP or as a result of past attacks, detention and harm suffered by the applicant at the hands of the Awami League or as a result of false cases being lodged against the applicant.
The Tribunal accepts that the applicant has joined the BNP in Australia. The Tribunal is prepared to give the applicant the benefit of the doubt and to accept that he would be a supporter, and perhaps join as a member, the BNP in Bangladesh upon return. However, the Tribunal is not satisfied that the applicant would hold any leadership or other significant position within the organisation beyond being an ordinary member.
The Tribunal put to the applicant in the hearing that it would not be inclined to consider, including based on the information concerning the BNP set out in the DFAT report on Bangladesh, that an ordinary supporter or member of the BNP in Bangladesh would face a real chance of serious or significant harm based on such membership. In response, the applicant indicated that the practical situation is hard to understand from Australia and that just being involved in the party creates risks.
The Tribunal does accept that leaders and senior operatives within the BNP have and can face difficulty from authorities in Bangladesh as a result of such involvement, including false criminal cases being lodged against them. However, the Tribunal is not satisfied that the independent evidence demonstrates that an ordinary supporter or member of the BNP faces a real chance of serious or significant harm. The Tribunal only accepts that the applicant would be an ordinary supporter or member without any additional involvement to put him at requisite risk of serious or significant harm.
The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm on return to Bangladesh as a result of any support he may have for, or other involvement in, the BNP.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2021] AATA 919

10 February 2021

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