1707369 (Refugee)

1707369 (Refugee) [2022] AATA 2840 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1707369
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Lilly Mojsin
DATE:30 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2022 at 2.00 pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – association with the BNP – political involvement with the Bangladeshi diaspora in Australia expressing support to the BNP – Tribunal is not satisfied that the applicant is at risk of serious harm – delay in lodging the visa application – applicant is not a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification
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 14 March 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who was born on [date] claims to be a citizen of Bangladesh. He applied for the visa on 9 November 2016. The delegate refused to grant the visa on the basis that there was not a real chance that the applicant would suffer serious harm or a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future on his return to Bangladesh.
The applicant appeared before the Tribunal on 6 June 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review, by his migration agent who attended the Tribunal hearing.
Criteria for a protection visa
See annexure A
CONSIDERATION OF Claims and evidence
In his PV application the applicant stated he was born in [year] in Feni and is a Sunni Muslim. His father. mother, sister and brother remain in Bangladesh. He lived in [a named area] Dhaka until he came to Australia. He stated that he finished school/high school in [year] and came to Australia in July 2006 as a student. He said that his reason for wanting to come to Australia was to study. He stated that he departed Australia on [date] November 2007 and returned to Australia on [date] January 2008. He said that he went to his country for a vacation but involved himself in political activities. He worked in Australia [from] March 2009 to September 2011, at a [workplace] from July 2012 to September 2014 and from January 2015 to March 2016 at another [workplace].
He claims that he was involved in politics in 2007 in Bangladesh. Since the election, hundreds of opposition leaders and workers have been killed by the new government. He feels safe in Australia. He has been involved in opposition politics because “my other friend has been assaulted and some of them died”. He was physically assaulted and threatened a couple of times. There is no point in seeking assistance as the police only work for government supporters. The police will not protect him because he was involved in ‘opposition politics’. That he did not try to relocate because he feels safer in Australia and could return as a student.
At a Department interview held on 28 February 2017 the applicant advised the Department that he applied for a protection visa because before he came to Australia BNP, was ruling the country from 2001 to 2006. After 2006, when there was a new election, the caretaker government took over the power, and since then, the two biggest political parties have been clashing, trying to destroy each other. The political parties have been clashing, 100s of people have been killed, physically abused and people get killed. He was constantly getting life threats. He was assaulted in 2007 at a rally and was getting constantly life threats, over the phone.
The applicant also told the Department that he was a worker of the BNP. After you serve with them a couple of years, they give you a membership. To have a membership you need to be a leader. He was going to be a leader. He was going to rally. He was getting his friends and co-workers and they were discussing things. The big leaders choose who should be the next leader. He didn’t have a membership, you get the membership card when you are promoted as a union leader. He rallied before he came to Australia. But in 2007 it was the first time he was assaulted. From his childhood he has seen people clash and die. He wanted to stay longer in 2007 but he was constantly getting life threats.
As a BNP worker, they met every couple of days. If he returns to Bangladesh, because he was involved in politics, as a worker, directly on the field people like him get killed straight away. His co-workers have been killed and police cannot help. They deal in assault.
When leaving Bangladesh in 2008 he just told his parents that he was “going tonight”. He didn’t inform anyone else. The police stopped his car, on the way to the airport. They wanted to check his ID.
Since arriving in Sydney, he has not been involved in any political party.
He did not apply for a PV as he was depressed. He was running for his life. In detention centre it was general gossip you could apply for a PV.
The applicant’s adviser opined that the applicant not only holds political opinion supporting the BNP but also holds political opinion against the Awami League and his political profile and activities in Bangladesh and in Australia confirm his political engagement expressing his views against the current government. Political activists like the applicant continue to face targeted attacks and serious harm including degrading and inhuman and cruel treatment in Bangladesh. Further the applicant has participated in the protest against the visit of Bangladesh Prime Minister which was widely publicized in Australia as well as in Bangladesh. Based on his profile and activities expressing his views against the Awami League government, there is a real risk that he would be targeted and harmed if he returned to Bangladesh. The Awami League government uses disappearance, or threats of disappearance, as tools to silence critics and repress the opposition. It is an evidence that active BNP members like the applicant will be targeted and harmed. BNP leadership has confirmed that their activists face targeted attacks from the Awami League supporters and members who act with passive and active support of the government and its organs. Bangladesh Nationalist Party leadership has issued a public statement confirming that their party members and active supporters are at risk of harm in Bangladesh. Enforced disappearances of Bangladesh Opposition activists is a norm in Bangladesh. Ongoing human rights violations targeting political opponents, particularly political activists like the applicant.
The applicant provided a letter from [Mr A], [an official of ] BNP-Australia and photos claimed to be related to applicant’s political activities and outlined independent evidence regarding the political and human rights situation in Bangladesh.
A statutory declaration provided by the applicant stated:
§In my application I forgot to mention one of the addresses in Bangladesh which mentioned now. From [year]-1993 I lived at [a place], Feni. Feni is a strong hold of the Bangladesh Nationalist Party (BNP).
§When I was studying at [a] School I started involving with the Bangladesh Jatiotabadi Chatra Dal (JCD). I started supporting because majority of Feni people support the BNP and the BNP supports people. I was an active supporter (worker) and engaged in particularly following political activities. Attending political rallies, encouraging people and students to support the Bangladesh Nationalist Party (BNP). We discuss and talk about political activities.
§From 2000 to 2006. I actively involved and though the BNP was in power during that period, we faced intimidation and threats from the local Awami League. Generally, people will be invited to become an official member and then promoted to the level of leader after seeing their party works. In my case, I was an active worker and was about to be invited to become a member to become a Union leader. However, due to my parents 'advice, I came to Australia on [date] July 2006 on a student visa.
§I went to Bangladesh in end November 2007 to see my parents on holiday and during that period, I joined political rallies. It should be noted that at that time there was a caretaker government.
§During that period in 2007, when I was attending the rallies, I was physically assaulted. In addition, I received threats through phones verbally. I could not seek police protection because the police in Bangladesh is corrupted and they do not protect people like me.
§I note that I involved in supporting the BNP in Australia and engage in activities. During the time interview with the DOHA, I was under stress and did not mention about my association with the Australian BNP. I involved and engage in following political activities including attending BNP Australia general meetings, participated in the protest against the Awami League leader in Sydney, participated in [various] events.
§I note that the Awami League won the 2018 election again and continue to engage in human rights abuses. I don't think there will be any constructive changes in political and security situation in Bangladesh and based on the current country information continues to worsen.
§On that basis, I fear if I return to Bangladesh now or in a foreseeable future, I will face serious harm including killing, torture, degrading and inhuman treatment for the following reasons:
a.Due to my political opinion and association with the BNP.
b.Due to my political opinion against the Awami League.
c.Due to my political involvement with the Bangladeshi diaspora in Australia expressing support to the BNP.
§I request the Tribunal to consider the dangerous situation targeting the BNP activists in Bangladesh when it assessing my claims.
§I fear I cannot get state protection in Bangladesh because my political opinion is against the Awami League government which is in power and the authorities follow the instruction of the Awami League cadres.
§I fear moving to other areas of Bangladesh is not an option in my case because even if I return Bangladesh I will continue to engage in political activities and therefore, I would be targeted and harmed.
The applicant submitted the following independent information:
·An annual report from ODHIKAR, dated 8 February 2020, expressing concern for human rights abuses in Bangladesh, suggested Awami League officials act with impunity, and reported on a significant volume of extra judicial killings.
·A statement from the Asian Human Rights Commission, dated 25 June 2020, calling on the Bangladeshi government to implement recommendations eliminating torture.
·A statement from the Asian Human Rights Commission, dated 29 August 220, calling for the end of enforced disappearances.
·A statement from the Asian Human Rights Commission, dated 11 September 2020, reporting that the Awami League have used arbitrary detention as a tool for silencing its opponents.
·An article from The Daily Star, dated 23 September 2019, concerning a BCL attack on JCD.
·An article from New Age, dated 12 December 2019, concerning the volume of people who have disappeared or been killed in the past 10-years.
·A news report from the Financial Express, dated 22 September 2020, concerning political violence in Bangladesh in 2020.
·A statement from the Asian Human Rights Commission, dated 24 October 2020, calling for the end of police harassment and intimidation.
·The 2020 annual report of ODHIKA, dated 25 January 2021, concerning human rights violations and attacks on political minorities.
·A statement from the Asian Human Rights Commission, dated 20 January 2021, reporting that the Bangladesh government were engaging in repressive campaigns to curtail human rights.
·An article from AA, dated 13 February 2021, reporting that police arrested opposition leaders.
·An Al Jazeera report, dated 16 August 2021, stating that Human Rights Watch were calling for a UN probe in ‘enforced disappearances’ in Bangladesh.
·A New Age report, dated 31 October 2021, stating that police had detained BNP activists at a prayer session.
·A statement from ODHIKAR on 23 May 2022 calling for the Bangladesh government to cease enforced disappearances.
At the Tribunal hearing the applicant told the Tribunal that was born in Feni and lived there from [year] to 1993 before moving to Dhaka. He was politically active from 2000 to 2006. Five-six days a week. He was at politically rallies. He was collecting membership. He was encouraging people to join the party. His parents didn’t mind.
The applicant applied to study [in] Australia for 2.5 years. He arrived in Australia in July 2006. Later on, in 2007, he changed his [course].
At the end of 2007, he went to Bangladesh to see his parents. He was very active with the JCD and unfortunately the political situation became worse and political violence started from 2007. During his holiday period he was physically assaulted because he was attending many political rallies. He was physically assaulted a couple of times.
He went home and returned after his one month vacation ended and he recommenced study but then dropped out due to financial hardship. He did not work because he was assaulted by the Awami League and Chhatra League.
The applicant started work in 2010, prior to that he had been supported by the Bangladeshi community. He has not worked since 2016. He worked for the BNP as a volunteer, an active activist.
The applicant was encouraging people to join the party, collecting membership and was organising rallies. It is not necessary to pay to join the BNP, one has to be an active activist. Then the party will offer membership. They are going to see themselves as a union leader. In 2001, at election time, the applicant was telling people to cast their vote for BNP so they can have a better economical structure. People can have better jobs and education. Women can have better status.
The applicant was an active activist from 2000 to 2006. When you become promoted as a union leader, then you get the membership from the BNP directly. But before that you have to work in grassroot level. You have to work for the student wing if you are young. You have to encourage the people to join the party and collect the membership. When they are promoted as a union leader, they have to pay for the membership but before that they don’t have to pay anything.
Asked why he did not make these claims in his PV he said that during the PV application, he was suffering financial distress and before he came to Australia in 2008, he has seen BNP workers being killed by the Awami and Chhatra league. When put that he had not stated in his PV application he had seen these events he responded that he forgot, but he was physically assaulted in 2007 and badly injured when he saw his parents. Asked if he was hospitalised he said he was when assaulted for the 2^nd time. He was in hospital for 3 days for bruised knees. He does not have a medical report. He was going to stay overseas for a longer period but was assaulted 3 times and received threatening calls.
Asked why he did not make an application for PV in 2008 if he was in such great fear he responded that he was very very young, he was mentally upset. He was shocked to see BNP workers killed. Put that if he saw those things why did he not make an application he said that he was able to stay overseas for longer but he came back to Australia, only his family knew he was coming back.
The applicant then became an unlawful citizen for 8 years. He claims he was not sure he was unlawful. I put that when he stopped studying, he knew he did not have a visa. He responded that he came back to save his life. He did not apply for 8 years because he did not know what to do, he was disturbed. He saw a doctor. They all suggested he take a rest. They did not provide medication.
Asked how he then applied for PV he said that he was an active activist for the BNP in Australia from 2008. He was promoted to an executive member in 2017 and then the people suggest he can maybe apply for protection.
Asked if he was picked up by the police, he said that he was and was put into detention. I put to the applicant that when he was in the detention centre he was told that the only visa he could apply for was a PV. He said no because he was an active activist from 2008 at the end of 2016 some people gave him a little bit of an idea how to apply for protection. He was told if he was involved in politics from a young age he could apply for a protection visa.
Asked what an active activist does in Australia he said that his role is to tell people to attend BNP marketing days and to inform all BNP members and supporters. There are a couple of groups. In their group there is around 200 members. He works with their [leader]. He was told by [Mr A] to encourage people to join the party. From 2017, he was an executive member. Asked what was involved with being an executive member he said it was encouraging people to join the BNP. You have to contact people, to invite people, to attend the BNP marketing days. Like 7 November or 1 September or 26 March or 16 December. His role as an executive member was to invite people to join those days and he was very active when Prime Minister came to Australia in 2018. He was one of the most active at the protest [rallies]. He took attendance of each member who attended the rallies [in] 2018. Lots of people took photographs and video footage at that time. It was shown in England and Bangladesh to the top high ranking BNP officials.
From 2010 the applicant worked in different [workplaces] and at the 2018 elections he was organising rallies to protest and boycott the rally. “I was telling people to come and be there at a time and we will instruct you and we will give you the speech. The protest against the election which was unfair in 2018. And our leader, BNP chairperson, she was sentenced to 17 years in total, which is a political motivated case. To remove her from the 2018 election”.
I explained s.5J(6) and put to the applicant that in determining whether he had a well-founded fear of persecution, the Tribunal can disregard that conduct unless satisfied that he engaged in that conduct for a purpose other than strengthening his refugee claims. He responded saying “as I have said before, I didn’t have a clear idea how to apply for a protection visa before 2016. But at the end of 2016, I did have some idea how to apply for a protection visa because I was an active activist. And in 2017, I was promoted to an executive member”.
The applicant stated that he was not attacked or harmed from 2000 to 2006 and was not physically harmed but was threatened by the Awami and Chhatra league. The political situation got worse in 2007 and at end of 2007 with the caretaker government. In 2007 he did not report the incidents to the police as they would not have helped him as they were not in government. After the 2008 the police follow the instructions from high ranking government officials. They don’t protect people who have a different opinion and works as an active activist.

Asked what he fears about returning to Bangladesh he said that it is a life risk for me and my family. He was assaulted three times and was badly injured. He was threatened over the phone many times. He was able to flee the country as he had a student visa. He is an active activist and because he is an executive member of BNP Australia and because he was born in Feni and it is a BNP stronghold where most of the people support BNP.
The applicant cannot return to Dhaka, where his parent’s reside when he goes back to Dhaka city, he fears the government force will abduct him from his home and he will be disappeared. When put that he has been away for a long time he stated that because of his activities in Australia and in 2008, and his protests against the Awami league, they have taken his photos and footage.
Asked if he had any documents to suggest that footage was shown in Bangladesh he was his leader has said that he was very active in 2018 [protests].
I put to the applicant that he was able to leave Bangladesh in 2006 and 2008 without any problems. He said that in 2006 BNP was in government. In 2007 the circumstances changed and the country was run by a caretaker government. At the end of 2007 he was stopped by police but had the visa to flee back to Australia. He was able to leave but was lucky. Police in Bangladesh are very corrupt. Lucky, he had money and paid a bribe to get out of Bangladesh. I put to the applicant that he did not advise the Department. He said that he did not have much idea about how to apply or what documents to provide. He forgot to mention it at interview, he was stressed.
The applicant’s adviser confirmed that the applicant, at the interview as recorded by the Department in the Department’s decision, said that he was stopped by the police but it did not mention he paid a bribe.
Asked why he would be harmed if he returned to Bangladesh he said that it is because of his political involvement with BNP Australia, and his anti-Awami league political opinion. I asked if he made this claim to the Department and he said he forgot. He said he was an active activist. He did not tell the Department because he was mentally upset and confused. He was concerned the Department might tell Bangladesh. I put to the applicant that these proceedings are all confidential. He responded that he was not sure.
I put to the applicant that DFAT indicates the authorities may take an interest in high profile individuals who may have partaken in war-crimes and he did not fit into that profile. He responded that even though he is not high profile, he was a BNP activist, since he was younger. He was a worker, since he was young. He was encouraging people to join the BNP and to vote for them, so they can have more seats.
The applicant’s adviser drew to the Tribunal’s attention the 2019 DFAT report, paragraph 3.70, and referred to the 2^nd sentence of the paragraph regarding ‘active members of opposition political parties and auxilary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists’. He believed that this applied anywhere in the world if it attracts the attention of the Awami League.
COUNTRY INFORMATION
According to DFAT [1]
[1] DFAT Country Report Bangladesh 22 August 2019
2.3      Bangladesh has experienced significant political, social and economic turmoil since Iindependence. A succession of assassinations and military coups d’état led to military rule for much of the 1970s and 1980s, before a series of popular mass democratic movements led to the establishment of parliamentary democracy in 1991. Elections between 1991 and 2006 saw power alternating between the Awami League [AL] and the rival Bangladesh Nationalist Party (BNP). Bangladesh briefly returned to military rule in 2007 following violent pre -election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018. Both elections were marred by violence, boycotts, and allegations of fraud
3.65    ……..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 it came to power in 2008, the AL has considerably restricted the activities of     opposition political parties, particularly the BNP and JI. 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.
3.69 While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country. 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.
3.70 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 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.
3.82 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.
3.89 Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers or labourers). These organisations might be known by other names, such as ‘fronts’, ‘wings’, ‘associates’ or ‘leagues’. While the exact size of these organisations is unknown, they are large: local sources estimate that the AL’s student wing, the Bangladesh Chhatra League (BCL), alone has ten million people. The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities, and the auxiliary organisations maintain a high degree of autonomy.
…………………..
5.24 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.
5.27 Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees (including for Rohingya) before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organization for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
5.29 Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted (see Bangladesh Nationalist Party (BNP)). DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
5.30 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.
REASONS AND FINDINGS
On the basis of his Bangladeshi passport, I accept that the applicant is a national of Bangladesh and is not a national or citizen of any other country or has a right to enter and reside in any country other than Bangladesh and therefore I find that the applicant is not excluded from Australia's protection by s.36(3) of the Act. I also find that Bangladesh the applicant's “receiving country” for the purposes of s.36(2)(aa).
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I am not required to accept uncritically any and all claims made by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility' and 'Guidance on Vulnerable Persons'.
There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.
I accept that the independent evidence indicates that the Awami League officials act with impunity, and there are reports of a significant volume of extra judicial killings and enforced disappearances. A statement from the Asian Human Rights Commission, dated 11 September 2020, reported that the Awami League used arbitrary detention as a tool for silencing its opponents and there are concerns regarding the political violence in Bangladesh, human rights violations and police harassment and intimidation. Police have arrested opposition leaders and activists.
The applicant claims that he was an active activist BNP worker when he resided in Bangladesh prior to coming to Australia as a student. He returned from Australia to Bangladesh for a month at the end of 2007 and then again returned to Australia. He has continued his involvement in the BNP since returning to Australia. After his student visa expired the applicant remained in Australia for about 8 years, as an unlawful non-citizen. He claims he continued his BNP activities as an active activist.
I accept that the applicant has knowledge about the BNP, its membership system and its beliefs. I do not accept that the applicant was involved in any BNP activities prior to his departure in 2006. I do not accept that he attended rallies and obtained a high profile so that he was threatened attacked or harmed during his one month holiday in Bangladesh in 2007/8.
The applicant did not apply for PV until 9 November 2016, about 8 years after living in Australia as an unlawful non-citizen arrival and 9 years after he returned from a month’s visit to Bangladesh in 2007 when he allegedly was assaulted, hospitalised, threatened by phone and allegedly had to pay a bribe to the police to leave due to his political opinion.
I do not accept that the applicant is a witness of truth for the following reasons:
Firstly, the applicant did not apply for a PV for about 9 years after returning from Bangladesh. He claims that he fled Bangladesh in January 2008 after he was assaulted by the Awami League and Chhatra League, hospitalised, threatened by phone and had to pay a bribe to a policeman as he was leaving. His explanation for the delay was that he was very young, he was mentally upset, he was depressed, he was running for his life. He also said that he did not know what to do, he was disturbed. He saw a doctor. They all suggested he take a rest. They did not prescribe medication. Whilst I accept that he was about [age] years of age when he returned to Australia, I reject his claim that he mentally upset, depressed, running for his life, disturbed as his doctor only suggested he take a rest, no medication was prescribed.
Further, I do not accept that he did not know what to do and remained as an unlawful non-citizen for 8 years. The applicant claims that whilst he was an unlawful non-citizen he worked as an active activist for the BNP in Australia. He claimed that at the end of 2016 some people gave him a little bit of an idea how to apply for protection. He was told if he was involved in politics from a young age, he could apply for a PV. I do not accept, as plausible, that a person who came to Australia as the holder of a student visa, who was able to change [courses] whilst studying claims he was not sure he was an unlawful non-citizen when his visa expired. When put that when he stopped studying, he knew he did not have a visa, he did not respond instead stating that he came back to save his life.
As the applicant did not have any mental illness that would have prevented him apply for a PV and as I am satisfied he knew he was an unlawful non-citizen when his student visa expired, I am satisfied that the applicant did not apply for a PV because he was detained. His lack of applying for a PV indicates a lack of a subjective fear of harm.
Secondly, at the Tribunal hearing, and in a statutory declaration to the Tribunal, the applicant claimed that from 2000 to 2006 he was actively involved and although the BNP was in power during that period, he faced intimidation and threats from the local Awami League. He was at that time an active activist studying at [a] School, he was involved with the Bangladesh Jatiotabadi Chatra Dal (JCD). He was an active supporter (worker) and engaged in particularly following political activities, attending political rallies, encouraging people and students to support the Bangladesh Nationalist Party (BNP). He faced intimidation and threats from the local Awami League. In his PV application the applicant did not mention his claimed political activities in the period 2000-2006, nor did he mention the threats. When put to the applicant he had not made these claims in his PV he said that during the PV application, he was suffering financial distress and before he came to Australia in 2008, he has seen BNP workers being killed by the Awami and Chhatra league. When put that he had not stated in his PV application he had seen these events he responded that he forgot, but he was physically assaulted in 2007 and badly injured when he saw his parents. I do not accept his explanation for the omission of these claims in his PV application. It is a late invention made to bolster his claims.
Thirdly, the applicant claimed in his PV application that he fled Bangladesh on [date] January 2008 after he was physically assaulted and verbally threatened by telephone. At the Tribunal hearing, and by statutory declaration to the Tribunal, the applicant embellished these claims. He said he was physically assaulted by the Awami League and Chhatra League, he was hospitalised for 3 days and threatened by phone. He also stated that he paid a bribe to the police to leave Bangladesh at the end of his 2007 trip to Bangladesh. He had not made these claims in his PV application. His explanation was that he did not have much idea about how to apply or what documents to provide. He forgot to mention it at interview, he was stressed. I do not accept as plausible that the applicant would forget to mention having to pay a bribe to police to leave the country or being hospitalised for 3 days. I am of the view it is an invention made in bolster his claims.
Fourthly, the applicant did not mention in his PV application, or at interview, that from 2008 he was an active activist in Australia, working with the BNP. His explanation was that he forgot. He did not tell the Department because he was mentally upset and confused. As stated above I do not accept that the applicant was mentally upset and confused. The applicant declared his PV application on 9 November 2016. He made no mention of his involvement in BNP activities in Australia when asked by the delegate at the PV interview held on 28 February 2017, some 3 months later.
As for his claim that he was concerned the Department might “tell Bangladesh”, I explained to the applicant that PV proceedings are confidential. I am satisfied that his explanation that he was unsure and concerned that the Department might report to the Bangladeshi authorities his active activist claims and his explanation of being mentally upset and confused for omitting to advise the Department of his BNP activities in Australia since 2008 are inventions made to bolster his claims.
S.423A states
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision ), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
I have considered the Presidents-Direction-Conducting-Migration-and-Refugee-Reviews August 2018. For the purposes of section 423A, when considering whether the AAT is satisfied that the applicant has a reasonable explanation of why the claim or evidence was not raised before, a ‘reasonable explanation’ may include, but is not limited to (Migration Amendment (Protection and Other Measures) Bill 2014 - Addendum to the Explanatory Memorandum p4):
(a) no reasonable opportunity to present the claim, e.g. interpreting or translating error made in the primary stage of the application
(b) a change in the country situation affecting human rights occurred after the primary decision was made
(c) new information relevant to the application became available, e.g. new documentary evidence of identity was forthcoming from the authorities in the home country
(d) a change in personal circumstances allowing presentation of new claims, e.g. a new relationship (spouse or child) with a person who has protection claims in their own right
(e) being a survivor of torture and trauma, where the ill-treatment has affected an applicant’s ability to recall or articulate persecution claims

As discussed above, I do not accept that the applicant did not mention his association with BNP from 2000-2006 in Bangladesh in his PV application, or having to bribe the police to leave Bangladesh in 2007/8, being hospitalised in Bangladesh in 2007 from injuries sustained when attending rallies or being involved in BNP activities from 2008 in Australia was caused by stress, mental confusion or forgetting especially as the applicant claims he went to see a doctor who told him to rest. Therefore, I do not accept that the applicant has a reasonable explanation as to why the evidence was not presented before the primary decision was made. I draw an inference unfavourable to the credibility of the claim.
I am satisfied the applicant is not a witness of truth who has created his claims in order to obtain the visa sought.
Therefore, whilst I am satisfied that the applicant was born in Feni, I find that the applicant was not involved with the Bangladesh Jatiotabadi Chatra Dal (JCD) when he attended the [School]. I do not accept that from 2000-2006 he was an active worker or activist, about to be invited to become a union member, attending political rallies, encouraging people and students to support the Bangladesh Nationalist Party (BNP) and that he faced intimidation and threats from the local Awami League. I also do not accept that on his trip to Bangladesh in 2007/8 for one month the applicant attended rallies, that he verbally threatened and physically assaulted on 3 occasions or that he was hospitalised. I do not accept that the applicant joined the BNP or had any political involvement or association with the BNP in Bangladesh.
The applicant claims that he was born in Feni which is a BNP stronghold. I have considered whether he would be imputed with an adverse political opinion for this reason. Giving the applicant the benefit of the doubt and accepting that Feni was/is a BNP stronghold, the independent evidence before the Tribunal is that the applicant lived there from [year] to 1993 before moving to Dhaka and when he attended the [school]. As I do not accept the applicant was a witness of turth, I do not accept that he involved with the Bangladesh Jatiotabadi Chatra Dal (JCD) when he attended the [School]. I do not accept that the applicant will be imputed with an adverse political profile because he was born in Feni or attended school there.
I am satisfied that in 2006 and in 2007/8 the applicant did not flee Bangladesh fearing serious harm for any of the reasons enumerated in s.5J(1)(a) and travelled to Australia as the holder of a student visa.
I am required to consider if the applicant will suffer serious or significant harm on his return to Bangladesh, within a reasonably foreseeable future.
As stated above I do not accept that the applicant suffered serious harm when he resided in Bangladesh for reasons of his race, religion, nationality membership of a particular social group or political opinion. I am of the view his claims of involvement with BNP and its affiliates was created in order to obtain the visa sought. Therefore I do not accept that the applicant was an active activist for the BNP prior to leaving for Australia to study as a student and I do not accept that when he returned to Bangladesh in 2007 for one month he actively participated in protests or that he was assaulted or harmed.
The applicant claims that he has been involved as an active activist in BNP activities in Australia initially from 2008 as an active activist and in 2017 he was promoted to executive member.
DFAT, in its 2019 report on Bangladesh stated 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. 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.
The applicant was interviewed by the Department in February 2017. In his statutory declaration to the Tribunal, dated March 2022, he stated that he was under stress at that interview and did not mention his association with the Australian BNP. As I do not accept the applicant is a witness of truth, I do not accept he was under stress at that time.
I have considered a reference dated 27 May 2022, provided by [Mr A], on letterhead of the BNP and Bangladesh Jatiotabadi Dal Australia. He stated that the applicant arrived in Sydney in July 2006 and from 29 May 2008 was continuously working with the organization as an active activist of BNP Australia. From 2017 he was working as an executive member of BNP Australia Convening committee. He has been involved with community-activities since his arrival in Australia. As the applicant neither claimed involvement in BNP in Australia in his PV nor claimed BNP involvement at the Department interview and before the primary decision was made, and as I have found the applicant is not a witness of truth, I place little weight on this reference. The applicant did not claim at the time he lodged his PV or at interview that from May 2008 he worked in Australia as an active activist. This referee’s reference does not overcome my concerns that the applicant has created his claims in order to obtain the visa sought.
The applicant has provided a number of photographs showing himself with a group of men. The photographs are marked 40^th BNP Anniversary, 41^st BNP Anniversary, 41^st Foundation Anniversary event, BNP seminar 2017 event and BNP Iftar 2017 event. The 40^th anniversary of the BNP was held on 1 September 2018[2]. The 41^st anniversary of the BNP was held the following year in 2019. It is claimed that the 2 other photographs were taken in 2017. The photographs show the applicant in a room with other men. I place little weight on the photographs as evidence of the applicant's involvement in any political party in Australia or working as an active activist or an executive member of BNP Australia Convening Committee or being involved with community-activities since his arrival in Australia. There is no means of identifying the persons in the photo. Further, the applicant does not claim to have been identified by the Bangladeshi authorities for any activities in Australia or that these activities were photographed and reported in the media or social media.
[2]
The applicant claims that he attended a demonstration [in] 2018 that targeted the Bangladeshi Prime Minister. Independent information[3] before the Tribunal indicates that about 500 protesters, mostly youth, gathered in front of the summit’s venue [when] the Prime Minister visited Australia. As I do not accept that the applicant is a witness of truth, I do not accept that the applicant attended this demonstration. Even were I to accept that he did so attend, there is no evidence before the Tribunal to suggest that the applicant was photographed at the demonstration.
[3]
I accept that active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. As the applicant is not a witness of truth, I do not accept that he has been involved in political activity as an active activist or as an executive member or as a supporter of the BNP or JCD either when he lived in Bangladesh or since living in Australia. I do not accept that he holds a political opinion supporting the BNP or a political opinion against the AL.
As I do not accept that the holds a political opinion against the AL or in favour of the BNP, I find remote the chance that he will engage in political activities on his return to Bangladesh within a reasonably foreseeable future.
I have considered the applicant’s claims singularly and cumulatively. I do not accept that the applicant had an adverse profile in Bangladesh and I do not accept the applicant has acquired an adverse profile against the Bangladeshi government since residing in Australia. I am not satisfied that there is a real chance that the applicant will suffer serious harm for a refugee reason on his return to Bangladesh within a reasonably foreseeable future.
Accordingly, I find the applicant does not meet the requirements of s.36(2)(a).
I am required to assess if the applicant, on his return to Bangladesh will suffer significant harm. The applicant suffered no harm when he resided in Bangladesh. He has been living in Australia for 16 years. I do not accept that he acquired an adverse profile in Australia. I have considered country information outlined above and country information provided by the applicant.
DFAT reports that extra-judicial killings committed by government security forces occur frequently in Bangladesh as do enforced and involuntary disappearances. Whilst disappearances particularly target individuals associated with opposition political parties, they have also been alleged in relation to journalists and activists. The applicant is neither an individual associated with an opposition party nor is he a journalist or an activist.
Bangladeshi law allows courts to impose the death penalty for a number of offences, including murder, terrorism, sedition, espionage, treason, rape, kidnapping and drug trafficking. Whilst DFAT assesses that Bangladeshi law enforcement agencies often use torture as a tool of interrogation or punishment are highly credible the applicant does not claim to have committed any offences in Bangladesh.
DFAT also states that groups more likely to be at greater risk of arbitrary arrests include leaders and members of opposition political groups, particularly the BNP. I do not accept that the applicant is a leader or member of the BNP and I find remote the risk that he will engage in political activities on his return to Bangladesh, within a reasonably foreseeable future.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence before me that there are widespread conditions of violence in Bangladesh, and as I do not accept that the applicant will be perceived as a BNP supporter, executive member or activist or member or against the AL, I do not accept that there is a real risk of the applicant suffering significant harm, from non-state actors or the Bangladeshi government, within a reasonably foreseeable future.
Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
Accordingly, I find the applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
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.
Lilly Mojsin
Member
ANNEXURE A
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2022] AATA 2840

30 June 2022

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