1707372 (Refugee)

[2021] AATA 3248

1707372 (Refugee) [2021] AATA 3248 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707372

COUNTRY OF REFERENCE:                   Bangladesh

MEMBERS:Deputy President J.L Redfern PSM (Presiding)
Member James Silva

DATE:30 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2021 at 3:00 PM

CATCHWORDS:

REFUGEE – Protection (Class XA) (Subclass 866) visa – Bangladesh – application for protection on the basis of refugee and complimentary protection criterion –  applicant claims to be a supporter and member of the BNP with a profile – claims to be convicted of politically motivated false charges – fabricated documents – credibility of the applicant – applicant found not to have a well-founded fear of persecution – not satisfied there is a real chance the applicant will suffer serious harm amounting to persecution – not satisfied there is a real risk the applicant will suffer significant harm – decision under review affirmed

PRACTICE AND PROCEDURE ­– role of the Tribunal – independent translations obtained by Tribunal – legal professional privilege

CASES:

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4
APW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 46
BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Multicultural Affairs v Respondents S152/3003 [2004] HCA 18
SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64

LEGISLATION:

Migration Act 1958 (Cth), ss. 5AAA, 5(1), 5J, 5K, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 65, 424A and 499
Migration Regulations 1994 (Cth), Sch 2

SECONDARY MATERIALS:

Department of Foreign Affairs and Trade, Country Information Report on Bangladesh, 22 August 2019
Department of Home Affairs, Procedures Advice Manual 3 Refugee and Humanitarian - Complementary Protection Guidelines
Department of Home Affairs, Procedures Advice Manual 3 Refugee and Humanitarian - Refugee Law Guidelines
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.

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

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

2. The applicant claims to be a [X]-year-old national of Bangladesh. He first arrived in Australia on [day] November 2016 as the holder of a Subclass 600 visitor visa and applied for a protection visa on 9 December 2016. The applicant claims to fear harm in Bangladesh due to his ongoing activism and support for the Bangladesh National Party (BNP). He claims he had a profile in Bangladesh as a supporter and office holder with the BNP, false charges were lodged against him and he was forced to leave Bangladesh to stay safe. He claims that he was convicted in absentia, and now faces ten years imprisonment if he returns.

3. The applicant’s application for a protection visa was refused on 29 March 2017 and the applicant applied for review of this decision to the Tribunal on 6 April 2017.

4. The applicant appeared before the Tribunal on 10 December 2020 and 4 February 2021. He was assisted by an interpreter in the Bengali and English languages and attended the hearing in-person. He was represented by a lawyer from Parish Patience, who is a registered migration agent and who also appeared in-person. At the end of the second hearing, the applicant was asked to provide further information in support of his claim. The Tribunal also made certain enquiries of third parties and invited the applicant to attend a hearing on 10 June 2021 to give evidence about the further information provided by him and obtained by the Tribunal. The representative ceased acting for the applicant on 31 May 2021 and the applicant did not appear at the scheduled hearing.

5. For the reasons that follow, we are not satisfied about the applicant’s claims for protection and we affirm the decision under review.

   RELEVANT LAW

6. 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) of the Act. 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.

7. Subsection 36(2)(a) of the Act 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.

8. 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) of the Act). 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) of the Act).

9. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.

10. The criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

12. For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (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.

13. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

14. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

15. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

16. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act (‘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) of the Act, which are extracted in the attachment to this decision.

17. Subsection 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

    Mandatory considerations

18. In accordance with Ministerial Direction No.84,[1] 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.

    [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.

19. The most recent report from DFAT is the Country Information Report for Bangladesh dated 22 August 2019 (DFAT Report). We have considered this report, together with other relevant country information. We have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case. Our analysis of the country information and any relevant guidelines is set out later in these reasons.

    BACKGROUND AND PROCEDURAL HISTORY

20. The applicant was born in [District], Bangladesh and is a national of Bangladesh. In support of his application for protection the applicant provided a copy of his most recent passport issued on [redacted] 2016 stating that his date of birth was 7 September 1975. In a statement accompanying the application dated 9 December 2016, the applicant claimed that he was in fact born on [redacted] and that he had been advised by an agent to get a passport with the earlier birthdate in order to apply for an employment visa.

21. The applicant claims to fear persecution by the Awami League government based on his political opinion as a supporter of the BNP. He claims that independent country information supports a finding that BNP political activists continue to suffer harm at the hands of Awami League supporters with the active or tacit support of authorities and that there is no place in Bangladesh to which a BNP activist can safely relocate. Further details of these claims were made during the interview with the delegate, in statements provided to the Tribunal before its hearing, during oral evidence given by the applicant at the hearings and in submissions made both prior to and after the hearing by the applicant’s representative.

22. In addition to his statement, which was in the form of a statutory declaration, the applicant provided to the Department a copy of a birth certificate which he claimed was registered with the Office of the Registrar of Births and Deaths issued on 31 January 2017 recording his date of birth as [redacted]. The applicant provided a testimonial dated 29 January 2017 from his former headmaster stating that the applicant had graduated in 2001 and that his date of birth was [redacted], as recorded in his admission registration book; a statement dated 24 January 2017 said to be from [witness B], President of the [Sub-district] Upazilla, BNP; and a statement dated 27 January 2017 from [witness A], the Acting President of the Bangladesh Jatiotabadi Judo Dal Australia Inc.

23. The applicant attended an interview before a delegate of the Minister on 2 February 2017.

24. The delegate refused the application for a protection visa. In summary, the delegate was not satisfied about the applicant’s claimed date of birth, his claims that he had travelled to [a South-East Asian country] to escape harassment in Bangladesh nor his claims about past instances of harm because of his ongoing activism and support for the BNP. The delegate did not accept the applicant’s claims made by him during his interview that politically motivated false charges had been made against him in respect of which he was subsequently convicted. The delegate accepted the applicant may have been a supporter of the BNP in Bangladesh and that he may attend meetings of a BNP affiliate group in Australia but, based on country information, was not satisfied that the applicant would face a real chance of persecution on his return to Bangladesh and therefore was not satisfied that the applicant had a well-founded fear of persecution. The delegate considered the alternate complementary protection grounds and concluded, for similar reasons, that she was not satisfied the applicant faced a real risk of significant harm if he returned to Bangladesh.

25. The applicant sought a review of the decision to refuse his visa. By letter dated 21 October 2020, the applicant was invited to provide additional evidence and country information in relation to his claims.

26. The applicant’s representative provided a response on 19 and 25 November 2020 being:

    (1)A statutory declaration of the applicant dated 19 November 2020.

    (2)A letter from [witness A], General Secretary of BNP, Australia Inc dated 2 November 2020.

    (3)Letters from [witness B], President of [Sub-district] Upazilla BNP dated 5 and 10 November 2020.

    (4)A letter from Shah Mozzem Hossain, Vice Chairman, Standing Committee, BNP dated 3 November 2020.[2]

    [2] Shah Mozzem Hossain is variously referred to as Shah Mayazzem Hossain, Shah Mozzeem Hossain and Shah Moajjem Hossain.

    (5)Medical certificate dated 16 January 2011.

    (6)A document dated 22 April 2016 headed Bangladesh Nationalist Jubodol [Sub-district] Upazila Committee purported to be approved by [witness C], President, [redacted] District Jubodol.

    (7)Miscellaneous documents, including the applicant’s birth certificate, [a South-East Asian country] visit pass (work permit) dated 23 March 2014, Bangladesh travel permit (travel document in lieu of passport) dated 16 March 2016, educational documents, photos of the applicant’s political activities in Sydney.

    (8)Copies of documents purporting to be court and criminal complaint documents from Bangladesh relating to criminal charges laid against the applicant (in Bengali and translated into English). These documents were typed ‘transcripts’ of documents, rather than originals or photocopies of originals.

    (9)Written submissions dated 25 November 2020 attaching country information.

27. The letters and documents that were provided from Bangladesh were in Bengali and were also translated into English. The translations were of poor quality. We requested better translations of these documents at the end of the first hearing.

28. Before the resumed hearing on 4 February 2021, the applicant provided the following:

    (1)New translations of the letter from Shah Mozzem Hossain dated 3 November 2020 and the two letters from [witness B] dated 5 and 10 November 2020.

    (2)A letter from [lawyer B], Advocate dated 20 December 2020 (in Bengali and translated into English).

    (3)An undated letter from [witness D], President Nationalist Party – BNP, [village, District] (translated into English).

    (4)Documents represented as being fresh translations of the same court verdict and related documents provided to the Tribunal before the first hearing.

29. When the applicant gave evidence during the second hearing, we raised concerns about the applicant’s claims, including his claim that he had been falsely charged and convicted in Bangladesh. The following information was received by the Tribunal after this hearing:

    (1)Two statutory declarations from the applicant dated 2 March 2021 and 14 April 2021.

    (2)Evidence of money transfers dated 6 July 2020, 27 and 29 October 2020.

    (3)An email received on 12 February 2021 from a person said to be [lawyer A] together with a letter dated 10 February 2021, attaching a document, purporting to be a document issued from a court in Bangladesh called a ‘Verdict’ in Bengali and translated into English.

    (4)Written submission received by email on 5 March 2021.

    (5)Emails the applicant alleges he received from his nephew attaching evidence he had previously provided to the Tribunal. These emails were from an email address [redacted] which were said to be the email address for the applicant’s nephew. One email attached copies of the applicant’s [South-East Asian country] work permit in Bangladesh travel documents and were dated 19 June 2017. The other emails attached various court and related documents and were dated November 2020 and January and February 2021.

30. Given concerns about the extent of the applicant’s political activities, the criminal proceedings and the content and format of the police and court documents, we made enquiries to ascertain whether the applicant’s claims about the purported criminal proceedings could be verified. We ascertained from open sources that there were lawyers in the Dhaka region with the same or similar name as the lawyers referred to in the court documents, but we were unable to verify the identity or existence of the Judge listed as having presided over the criminal case. We requested information from DFAT about these matters together with country information from the Department of Home Affairs (DHA) about the applicant’s claims relating to his time in [South-East Asian country]. We also obtained independent translations of the first page of three Bengali documents provided by the applicant which were represented to be a ‘Verdict’ or ‘Judgement’ in relation to the applicant, that is: first, the Bengali transcript of the verdict provided to the Tribunal; secondly, the Bengali transcript attached to the fresh translations provided after the first hearing, and thirdly, the purported copy of the original verdict in Bengali attached to the email dated 12 February 2021.

1. We scheduled the proceedings for a further hearing to discuss matters of concern raised by the documents and submissions provided after the second hearing. A hearing invitation was sent on 30 April 2021 after consulting with the applicant’s representative about availability. The proceedings were listed for further hearing on 10 June 2021. DFAT and DHA were not able to provide the information requested prior to the third scheduled hearing because of operational constraints due to the COVID-19 pandemic and, in the case of the enquiries in Bangladesh, the need to engage a lawyer in order to access specific documents. The applicant was provided with the response the Tribunal received from the Australian High Commission in Dhaka on 27 May 2021. In essence, the response indicated that access to legal records in Bangladesh was not straightforward and generally could only be accessed manually, to identify the name of the former judge of District Court, formal application needed to be made to the Bangladesh Judicial Service Commission and to obtain copies of finalised criminal matters an ‘interested party’ must file an application with the court. An ‘interested party’ included family members of the victim and the accused and lawyers acting for the victim and the accused.

2. The independent translations obtained by the Tribunal raised further concerns and we formed the view that this was adverse information which engaged our obligation under s.424A of the Act to invite the applicant’s comments or response. On 24 May 2021 we sent such a notice to the applicant through his representative. The results of our enquiries are discussed in more detail later in our reasons. It was also proposed to discuss these matters, including any response to the invitation, with the applicant at the scheduled third hearing.

3. By email dated 31 May 2021 the applicant’s representative, Mahalingam Sutharshan from Parish Patience, advised that the firm and the representative had ceased to act for the applicant. The Tribunal was provided with a form, apparently signed by the applicant, confirming the applicant’s consent. It was noted in the form that the contact details for future correspondence was [email address]. The applicant’s representatives did not provide any explanation as to why they ceased to act for him, nor are they required to do under the Migration Act or the Tribunal rules.

4. On 31 May 2021 the applicant responded directly to the Tribunal to the notice under s.424A of the Act.

5. Prior to the third hearing, we caused a Tribunal officer to write to the applicant on 1 June 2021, asking him whether he wished to proceed with the Freedom of Information request that his former representative had lodged. We received no reply, and therefore regard it as having been withdrawn.

6. On 8 June 2021, we caused a Tribunal officer to write to the applicant at the address nominated by his former representative, again attaching a copy of the hearing invitation which was previously sent to the applicant’s representative on 30 April 2021 and asking whether the applicant would like the Tribunal to take evidence from any additional witnesses. The Tribunal also wrote to Mr Sutharshan requesting confirmation that the applicant had been advised of the hearing. This was confirmed on 8 June 2021. The Tribunal also sent SMS messages to the applicant’s mobile telephone number, five and one business days before the hearing.

7. On the morning of 10 June 2021, we attended at the hearing and an interpreter was present. The applicant did not appear. The hearing commenced at the scheduled time and was adjourned after the Tribunal officer made a search of the hearing reception area for the applicant. We also caused the applicant to be telephoned by the Tribunal officer at the beginning of the hearing, but the applicant did not answer the telephone. The hearing was resumed at approximately 1pm. The applicant was again contacted by telephone during the resumed hearing but did not answer the telephone. An interpreter was present while the Tribunal was in session and translated the voice message left by the Tribunal in Bengali. The Tribunal has not received any further communication from the applicant since his email of 31 May 2021.

   OUTLINE OF EVIDENCE PROVIDED

8. The applicant provided extensive material to both the Department and the Tribunal in support of his various claims. The documents provided by the applicant, or on his behalf, are listed above and summary of the key aspects of this evidence is set out below.

9. In his statement declared 9 December 2016, the applicant made claims to the following effect:

   (1)After completing his Secondary School Certificate in 2001, the applicant was admitted to [redacted] College where he was elected Vice President of the Nationalist Student Party which was a wing group of the BNP.

   (2)In 2005, the applicant became a working member to [village] Council of BNP.

   (3)In 2009, the applicant was attacked by Awami League cadres at a local marketplace, they kicked him and beat him with an iron rod. He was admitted to a medical clinic and was discharged 3 days later.

   (4)In 2010, he was a working member to [Sub-district] Thana Committee, in June 2010 a new committee was formed with the team in Jubo Dal. The applicant was elected as General Secretary of this committee. In 2011, the applicant led a procession protesting the corruption of the Awami League and the torture of BNP workers and leaders when he was attacked by members of the Awami League. The applicant admitted himself to a medical clinic and was released after 5 days. After this attack the applicant travelled to [a South-East Asian country] and remained there until 2016.

   (5)In March 2016, the applicant returned to Bangladesh and commenced working for BNP candidate Amin Uddin. He was at the polling booth on election day, which was 22 March 2016, when Awami League cadres and activists took possession of the voting centre and cast fake votes. He and the other BNP workers tried to resist, but the cadres attacked them and he, along with other workers, received injuries. They were threatened to be killed.

   (6)After this incident, the applicant ‘came to know that they had instituted a false case against him in order to harass him’ and thus compelled him to leave his home.

   (7)In April 2016, the applicant became the Vice President of the BNP in [redacted] Thana.

   (8)The applicant fears if he returns to Bangladesh, he will face serious harm due to his political opinion and involvement with the BNP and that he will not be able to obtain protection from the police as the Awami League is in power.

10. The applicant also provided to the delegate documents said to substantiate his claims about his date of birth and letters from people said to be BNP officials.

11. One such document was a letter dated 24 January 2017 said to be from [witness B], President of the [Sub-district] Upazila, BNP and the translated version of this letter included the following text:

    [The applicant] is the younger political voluntary work as ideal rehabilitation of Shahid Ziaur Rahman. Has been performing as voluntary service for National party (BNP) since 2001. He was elected a General Secretary (Young Team) in [sub-district] from 2010 to 2015. At present he is possess the Vice President of BNP in [sub-district] Upazilla. He is a voluntary worker of Bangladesh National Party (BNP).

    So far as I know is the trustworthy member under the party. I wish him every success in his life.

12. There are obvious translation errors but the thrust of the letter is that the applicant was an elected official in the youth group of the BNP in [reacted], which is a sub-district of [District], from 2010 to 2015 and that at the time of the letter he was a Vice President, presumably also of the youth group.

13. A letter was also provided from [witness A], General Secretary, BNP, Australia Inc dated 27 January 2017. [Witness A] stated that the applicant was a member of the BNP [village] Union Committee Bangladesh and since the applicant had arrived in Australia, he had been involved in activities of the BNP under [witness A’s] leadership. [Witness A] recounted what the applicant was said to have told him about why he left Bangladesh and stated that he believed the applicant was in ‘real danger’ and that it would be inhuman and pathetic to send the applicant back to Bangladesh.

14. In his evidence to the Department, the applicant provided little detail about the purported false case or any criminal proceedings. Nor was there any mention of these charges in the letters from [witness B] and [witness A] provided to the Department.

15. At the interview conducted by an officer of the Department, the detail of which is set out in the decision record of the delegate, it is recorded that the applicant told the delegate about his various roles in the BNP and related incidents where he said he was attacked by Awami League supporters with iron rods in the marketplace in June 2009 and beaten while leading a protest procession against the Awami League in 2011. The applicant told the delegate he was treated in a medical clinic on both occasions. He feared being killed in Bangladesh and went to live in [a South-East Asian country] between 2011 and 2016, although he attended continue to attend BNP meetings in [a South-East Asian Country] and donated money to the BNP. It is further recorded that the applicant told the delegate he returned to Bangladesh in March 2016 to assist BNP candidates in the elections, but this descended into violence and he was attacked. It was claimed by the applicant that after this incident he came to know that there was a false case lodged against him and he was forced to leave home.

16. The applicant provided a statement declared 19 November 2020 to the Tribunal. In this statement, the applicant made claims to the following effect:

    (1)The applicant stated that he was born in [year] and not 1975, and provided further documents said to corroborate this evidence. He stated that the reason why he was ‘compelled’ to change his date of birth was because he was afraid he would be prevented from travelling out of Bangladesh if he was identified due to his involvement in politics. He also stated that he was advised by his agent in Bangladesh to do so for the purposes of acquiring an employment visa. In other words, the applicant claims that he was [age] years old in 2002, when he got his first passport, but the agent recommended that he give his year of birth as 1975 [redacted] to bolster his chance of obtaining a work permit in [a South-East Asian Country]. The subsequent passport, obtained in April 2016, merely replicates these details.

    (2)The applicant gave an account of his various roles with the BNP. He stated that he had sustained injuries to his right hand as a result of the claimed attack in 2011 and he provided a discharge certificate from the clinic.

    (3)The applicant stated that he had contributed almost 2 million Bangladesh Taka towards the BNP. He had continued his involvement with the BNP while he was in [a South-East Asian country] but had lost contact with the people involved and he was unable to provide a letter to confirm his involvement with the BNP in [South-East Asian country]. He resided in [a South-East Asian country] on a work permit and was granted repeat work permits even though his passport had expired. His passport was held by his employer in [a South-East Asian country] and he was issued a travel document to return to Bangladesh in 2016. He travelled to India to flee threats on his life from the Awami League.

    (4)The applicant referred to the criminal charges which he claimed had been filed against him and stated that he provided translated copies of the documents said to relate to those charges. The applicant further stated that he was sentenced to imprisonment for 10 years with labour and a monetary penalty of 100,000 Bangladeshi Taka and that he disputes the facts in the case. He did not attend the criminal proceedings as the case was politically motivated.

17. As already noted, the documents provided were said to be certified transcripts of court or police documents, rather than copies of the originals. They were in Bengali and were accompanied by English translations. These documents give details of the copier, being the person who transcribed the texts; the person who compared the texts; and details that they were attested by a notary public. Each of the copied documents are dated at the top of the documents with three dates, being 23, 24 and 27 April 2017. The copier is recorded as Ashik, the comparer is said to be Motiur Rahman and it is recorded that a seal and signature were applied to the copy by the Clerk or Bench Assistant dated 27 April 2017.

18. The applicant also provided to the Tribunal letters of support from witnesses, some of whom had previously provided letters of support to the Department. A summary of this this material is set out below.

19. An updated letter from [witness A] was provided to the Tribunal before the first hearing, [witness A] stated that the applicant had become a ‘dedicated member’ of BNP Australia since 2018. He also stated that when the Bangladesh Prime Minister visited Australia in April 2018, BNP Australia protested, and the applicant was ‘in the forefront of the procession’ and this was published in various media outlets. [Witness A] did not mention the false charges and conviction alleged by the applicant but stated that ‘many BNP leaders indiscriminately became subject false charges’ and that if the applicant returned to Bangladesh he would be ‘persecuted or disappeared’.

20. Two updated letters from [witness B] were provided. The first (dated 5 November 2020) was headed ‘Certificate’ and stated that the applicant was [witness B’s] ‘most trusted political activist’. According to the letter, the applicant played a prominent role in 2001 and 2008 to help the BNP win the national election and was attacked and injured by Awami League cadres several times and, on 12 January 2011, he was seriously injured. It is further stated that government cadres ‘tortured the applicant physically and mentally by filing conspiratorial false charges against him’. [Witness B] concluded that it was not safe for the applicant to return to the country in such a serious political crisis. The second letter (dated 10 November 2020) stated that the applicant had provided finance to the BNP that he had spent about 20 Lac Taka (2 million Taka or about AUD 32,000) for the BNP. We took evidence from [witness B] by telephone at the request of the applicant at the hearing on 4 February 2021, and our assessment of this evidence is set out later in these reasons.

21. Shah Mozzem Hossain provided a letter dated 3 November 2020 addressed ‘To whom it may concern’ stating that the applicant was known to him. Mr Hossain further stated that the applicant had been involved with the BNP since his student life, had been elected Vice President of [redacted] College in 2001, worked to help the BNP win the 2001 national election and became an active member of the BNP in 2005. He stated that in 2008 the applicant campaigned on his behalf and that Awami League cadres injured the applicant in 2009 and 2011. The applicant was said to have been the General Secretary of the BNP Jubodal [Sub-district] Committee in 2010 and Vice President in 2016. Mr Hossain stated that the applicant now had ‘false charges’. According to Mr Hossain ‘many BNP activists are being abducted killed and falsely prosecuted all over Bangladesh’ and he believed it was not safe for the applicant to return to Bangladesh.

22. Prior to the second hearing, the applicant provided documents that were represented to be fresh translations of the court and related documents already provided and letters from two further witnesses said to support his claims.

23. The first was a letter dated 20 December 2020 addressed to the applicant and said to be from [lawyer B], advocate, from Judge Court [District] (presumably a reference to the [redacted] District and Sessions Judge Court). The translated letter is in the following terms:

    To [applicant]

    
    

    Father's Name: [redacted]

    
    

    Village - [village],

    
    

    P.S.- [District]

    Dear [applicant] please takes my greetings. Hope you are well. I am giving you all the details about your case. I have handled your case with caution. District and Sessions Judge Court Sessions Case No. 48/2016, [Sub-district] Police Station Case No. 7 (11) 2016, GR No. 45/2016, Section: Section 9 (ka) / 20 of the Arms Act of 1878 years. Summary of the case: May [witness name], [Sub-district] Police Station, District [redacted] filed a case against the accused [the applicant] and other accused on 23/3/2016 at [Sub-district] Police Station as activist of BNP. During the Union Council elections on 23/3/2016 due to enmity between Awami League leaders and workers and BNP leaders and workers, you apply fake Vat at the Vot center. When the leaders and workers of Awami League stopped you from giving fake Vot, clashes started with the leaders and workers of Awami League and BNP. Sensing the presence of police at the scene, you [the applicant] fired random and fled with the rest of the accused. Accused No. 2 [Person B] was caught red handed. He seized a home-made pipe gun, five rounds of ammunition, two sharp knives and the witnesses from the spot. He made a seizure list and sent the case to the police station. But the seizure list did not have the signatures of the witnesses. Charges against you A case has been filed against you for a long time for committing a crime under Section 19 (ka) / 20 of the Arms Act, 1878, by keeping weapons in your custody for illegal sale and purchase of arms, payment of fake Vot and terrorist activities.

    Convicted in that case, he was sentenced to 10 (ten) years rigorous imprisonment on 07/02/2017 and has been sentenced to 1 (one) year rigorous imprisonment for non­ payment of fine of Tk. 1,00,000/-(one lac) only. The case against you is very complex and serious. I have taken the case seriously on your behalf. No witnesses were able to cross­ examine you because you were not present. Preparations are underway to file another case against you. A sentence has been issued against you in the case. It is to be noted that due to your absence, it is not possible for you to appeal in the High Court. I will continue to try to solve your problems.

24. The second letter provided was a letter from [witness D] recorded as being attested on 23 January 2021. [Witness D] is said to be the President, Nationalist Party – BNP, [village, District]. [Witness D] states that the applicant is personally known to him and he mentions various roles that the applicant is claimed to have had with the BNP. We analyse this evidence later in our reasons. Ultimately, we did not find this letter of support to be compelling.

25. The applicant gave evidence at the hearings on 10 December 2020 and 4 February 2021 and, as already noted, he did not attend the third hearing. At the second hearing, we asked the applicant questions about who was in possession of the original copies of the court documents provided by the applicant prior to the hearing. The evidence of the applicant was to the effect that he had handed originals of the first information report, deposition of the complaint and complaint order to his lawyer at the time, who was [lawyer A]. He appeared uncertain about the documents and was unable to provide much detail about the proceedings. At the end of the hearing the applicant was asked whether these documents could be provided directly to the Tribunal by [lawyer A]. After conferring with his representative, the applicant agreed he would make these arrangements. The applicant was also invited to provide any further evidence or submissions on which he wished to rely.

26. By email dated 10 February 2021 the applicant, through his representative, provided copies of money orders dated 6 July, 27 October and 29 October 2020, each amount being in the vicinity of AU$3300 recording the sender as the applicant and the sender as [name redacted]. According to the email form the representative, [redacted] was a BNP activist and the money had been sent to him to give this money [witness B].

1. On 12 February 2021 the Tribunal received an email from a person said to be [lawyer A] to the following effect:

   I am [lawyer A], lawyer and also a member of [redacted] District Bar Association. My membership number is 58. [the applicant] was a client of me (sic). His court document attached below.

2. Attached to the email was a document in the Bengali language. At his request, the Tribunal provided a copy of this email and the document to the applicant’s lawyer and we requested that the documents be translated. The translations were provided on 2 March 2021.

3. The letter from [lawyer A] was dated 10 February 2021 and was addressed to ‘whom it may concern’. The letter confirmed that the applicant was the author’s client and was personally owned to him. The letter further stated as follows:

   A false case, with Case No. 7(3)16, was filed at [sub-district] Police Station against some people including [the applicant]. I ran the case on behalf of [the applicant] until the end and the verdict will be declared on 07/02/2017. I listened to the verdict in person by being present at the court on that day. Later I applied for a certified copy of the First Information Report, deposition, charge sheet and verdict to the concerned department of the learned court on 23/04/2017 and received a certified copy of the above on 27/04/2017, which I supplied to [the applicant’s] family.

   The current political situation of the country is worse. He was my client who is an honest and ideal politician. I always hope that his expatriate life will be safe, happy and lasting.

4. The document to the email was referred to as a ‘Verdict’. The date of the announcement of the verdict was stated to be ‘7 February 2017’.

5. At the time the applicant provided the translations of the documents said to have been provided by [lawyer A], he also provided a statutory declaration dated 2 March 2021 as follows:

   (1)The applicant stated that he believed the evidence he had given to the Tribunal was consistent and coherent and that the Tribunal ‘did not raise any significant credibility concerns’ apart from requesting him to ask his lawyer to send court documents directly to the Tribunal to determine their authenticity.

   (2)The applicant noted that [witness B] had provided oral evidence during the hearing and that he would not have provided evidence about the applicant’s profile if this was not in fact the case. The applicant requested the Tribunal not to draw any adverse inferences if there were ‘minor inconsistencies’ in [witness B’s] evidence because he was an aged person.

   (3)The applicant submitted that he had requested the Tribunal take evidence from [witness A], one of the BNP leaders in Australia, and that [witness A] should be called to give evidence about his political profile and, in particular, evidence about whether the applicant’s future political profile was such that it was likely to draw adverse attention from his enemies.

   (4)The applicant stated that one of the reasons his work permit was renewed to allow him to remain in [a South-East Asian country] (despite the expiry of his Bangladesh passport) was because he had been the key witness of an explosion at a shipyard on 12 May 2011. He attached a copy of a press article reporting on the incident.

   (5)The applicant stated that the Tribunal had asked him about advice and discussions with his lawyer which he believed was legal professional privilege and the Tribunal had failed to advise him to seek his consent.

   (6)The applicant further stated that he was not an ordinary BNP activists or member and that he had a political profile which would attract adverse concern from the Awami League if he was to return and he had cases before the court and had sent documents to the Tribunal to corroborate these claims. These cases were politically motivated and there was country information that confirmed the Awami League was using their influence with police and the judiciary to prosecute such cases. He continued to provide financial support to the BNP and he continued with support of the BNP in Australia. For these reasons he was still of the view he would face harm on his return to Bangladesh.

6. The matters set out in this statutory declaration are primarily by way of submission and not evidence about factual matters, save for the issue raised in relation to the applicant’s work permit in [a South-East Asian country]. The question of whether the Tribunal raised any significant credibility concerns, the relevance of any inconsistencies in the evidence given by [witness B] and the questions asked by the Tribunal in relation to his the applicant’s criminal case are matters that are best assessed by examining the transcript of evidence given by the applicant, particularly at the hearing on 4 February 2021. The issue about taking evidence from [witness A] is dealt with later in this decision.

7. On 14 April 2021, the applicant provided a further statutory declaration to the Tribunal, in which he listed each of the documents, statements and letters that he had provided to the Department and the Tribunal and made the following statement:

   I note that I have provided all the documents requested by the Tribunal and provided my oral evidence in country information as well. My lawyer in Bangladesh also directly sent the documents to the Tribunal as per the request to the Tribunal. I do not know what further evidence or actions of mine will satisfy the Tribunal regarding my credibility and respect respectfully submit that I have provided credible and corroborative evidence and documents related to my political activities and involvement in the issues I experienced and suffer.

8. This statement is substantially a submission but given the applicant seems to question the review process adopted by the Tribunal in his case, it is apt to outline the role of an applicant and their representatives on the one hand and the role of the Tribunal on the other in the conduct of merits review of protection cases. It is also relevant to deal with the applicant’s claim about legal professional privilege as a preliminary issue before our consideration of the applicant’s claims as a whole.

   THE NATURE OF MERITS REVIEW

9. Section 5AAA(2) of the Act provides that ‘it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’. Subsection (4) also provides that, for avoidance of doubt, the Minister (and presumably all decision-makers standing in his or her shoes) does not have any responsibility or obligation to ‘specify, or assist in specifying, any particulars of the non-citizen's claim’ or to ‘establish, or assist in establishing, the claim’.

10. Against this, the High Court has observed that there may be circumstances in which a failure to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, could constitute a failure to conduct a review or be otherwise so unreasonable as to support a finding that the Tribunal’s decision is infected by error.[3] Further, as a matter of procedural fairness the Tribunal will generally identify for the applicant any issues of concern or evidentiary gaps that are likely to be determinative. As such, it is not uncommon for the Tribunal to raise issues of concern about legal matters or the application of evidence to the requirements of the visa the subject of the review or concerns about deficits in the evidence. It is not uncommon for the Tribunal to query whether further or more detailed evidence or submissions can be provided to satisfy those concerns. This is not intended as an interrogative or investigative process and should not be mistaken as such. Nor should any request made by the Tribunal for further information be taken by an applicant as tacit assumption of responsibility for establishing the applicant’s claims. This is for the applicant, although it has long been recognised by the courts that presiding members should take a facilitative approach where an applicant is unrepresented, which may otherwise be unnecessary where an applicant is represented by a lawyer or migration agent. If relevant information is not provided by the applicant about a critical fact, this does not engage an obligation on the Tribunal to make its own enquiries, even if it is obvious. This is because the existence of such a fact may not be readily ascertained by the Tribunal, particularly if this is information that would or should be within the power and control of the applicant to ascertain and provide.

    [3] MIAC v SZIAI [2009] HCA 39 at [25]

11. The Tribunal may seek further information or conduct its own enquiries, as we have done in this case, with a view to testing the claims made by the applicant. The results of such enquiries may verify, contradict or, in some cases, fail to advance the case any further. Either way, it is the role of the Tribunal, standing in the shoes of the original decision maker, to reach the correct or, if there are discretionary considerations, preferable decision based on the information provided and where information can be readily ascertained, based on enquiries that the Tribunal itself makes.

12. The applicant was requested to provide any further evidence or submissions to support his claims prior to the hearing. He made the claim that one of the reasons he feared returning to Bangladesh was because false charges had been laid against him that were politically motivated and that he had been subsequently convicted of those false charges. While the applicant briefly referred to this in his original statement to the Department and elaborated about the ongoing criminal proceedings when questioned by the delegate, there was little detail about what the applicant claimed was a significant event and reason for his fears of persecution. In response to this request for any further evidence to support his claims, the applicant provided documentary evidence to the Tribunal said to support this claim, being transcribed copies of police charges, an arrest warrant and a judgment evidencing his conviction of 10 years imprisonment.

13. The Tribunal makes findings of fact based on the totality of the evidence before it, which includes the cogency and consistency of the applicant’s written and oral narrative, their conduct, any corroborative evidence and country information. In the present case, the documentation is of particular significance. If this claim about false charges was substantiated by the documents provided, this may be compelling evidence to support the applicant’s claim that he would be persecuted on his return to Bangladesh. In this case, given concerns about the applicant’s claimed political profile and travel history and his past reliance on fraudulent documents, we considered it essential to test the authenticity of the purported police and court documents. We therefore requested further information to test the veracity of these claims and to give the applicant the opportunity to provide an explanation about the documents provided and the authenticity of their source.

    LEGAL PROFESSIONAL PRIVILEGE

14. In his statutory declaration dated 2 March 2021, the applicant stated that the Tribunal asked about the advice he sought from his lawyer in Bangladesh without first seeking his consent. We take this to be a submission that the Tribunal asked the applicant questions which invited the disclosure of communications that would be the subject of legal professional privilege without first giving him a warning that he could refuse to answer such questions on the basis of the privilege.

15. This is a submission about the nature of the questions asked and their characterisation. It also raises questions about procedural fairness and whether we should be able to have regard to any questions answered by the applicant in response to these questions, However, it is notable  that no objection made by the lawyer representing the applicant during this line of questioning  or in the body of the post-hearing submissions. Rather, it was conveyed to us through the applicant’s statement, in which he claimed that the Tribunal had failed to ask his consent to waive legal professional privilege.

16. Whether questions asked by the Tribunal invited the disclosure of privileged communications is best assessed by reviewing the questions asked in the context of these proceedings. If those questions invited such a disclosure, the consequences of the Tribunal relying on the information disclosed, is similarly best assessed by reviewing the answers provided. It was for this reason that the Tribunal obtained the transcript of the hearing following this submission.

17. It is well-established that legal professional privilege is a common law principle which protects from disclosure of certain communications between a client and his or her legal advisor for the purpose of obtaining or giving legal advice or assistance. According to the Federal Court in SZHWY v MIAC,[4] applicants and other persons appearing before the Tribunal are entitled to claim legal professional privilege and, on that basis, to decline to answer a question. An applicant may waive privilege where a response to a question discloses a privileged communication but where the question could not be said to be one that would tend to reveal a privileged communication. This covers privileged communications made voluntarily during the course of questioning.

    [4] SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64.

18. Not all communications between a lawyer and client are privileged. The protection arises where the giving of information or the production of documents would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice. This matter was recently considered by the Full Court of the Federal Court in BWO19 v MICMSMA,[5] where the Court provided helpful guidance about how these issues should be resolved. The Court noted, at [64]:

    [5] BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181.

    The purpose for which a communication is made it is a question of fact to be determined objectively from the nature of the relevant communication, the content of the communication, the relevant commercial context and the relationship between the parties.

19. In this case, the Court identified four questions in respect of which it was alleged the Tribunal had invited the disclosure of confidential communications as part of the questioning process. The Court analysed each of these questions and noted that three of the questions were not directed to the substance of any legal advice about the applicant’s application for a visa but rather they were directed to clarification about the process in preparing the application and understanding what transpired during the completion of the application form. In contrast, the Court found that the fourth question asked ‘So did you tell your agent all of your claims to your agent?’, which followed immediately from the applicant’s indication that he had been given advice, came ‘perilously close’ to asking for the disclosure of what instructions had been given to the lawyer in the course of the applicant consulting his lawyer for advice about the visa application. According to the Federal Court, the question went to the very substance of the scope of the instructions that the applicant gave to his legal advisor for the dominant purpose of obtaining legal advice in relation his application for protection visa. This question therefore invited the disclosure of information that may or would be the subject of legal professional privilege.

20. The Full Court then went on to consider what it identified as the more difficult question of what flows from the circumstances where the Tribunal asks a question and the answer may or would disclose the contents of communications that would be the subject of legal professional privilege, without first giving an applicant a warning that he or she is entitled to refuse to answer the question. Ultimately, the appeal turned on the question of whether this error was material, namely, whether the failure by the Tribunal to warn the applicant that he could claim the privilege deprived the applicant of a favourable outcome. The Full Court found that this was not the case because it was apparent the Tribunal’s assessment of the applicant’s credibility included reasoning based on his evidence which was unrelated to his answer to the impugned fourth question. In other words, the error was not material.

21. In this case, the privilege claimed relates to questions we asked about discussions said to have taken place between the applicant and a lawyer in Bangladesh in relation to the false charges the applicant alleges were laid against him and two others in Bangladesh in March 2016. The applicant alleges that these false charges were heard in his absence and resulted in a conviction and verdict for a term of imprisonment of 10 years. It is further alleged that the charge and conviction were politically motivated by the Awami League which the applicant claims evidences the persecution he faced in Bangladesh and would face on his return. This is a serious claim which was central to the applicant’s claimed fears of persecution on his return.

22. The applicant provided purported police and court documents said to corroborate this claim. The weight these documents should be afforded is an important issue that is critical in assessing the credibility of claims about the false charges and ultimately the applicant’s overall claims about persecution by the BNP.

23. Notably, Nicholas J in APW17 v MICMSMA[6] observed that where the Tribunal’s decision to place no weight on a document said to support an applicant’s claim is affected by illogicality or irrationality in the finding, this may give rise to error if the finding is material to the ultimate decision. According to his Honour, a decision may be affected by jurisdictional error even if the ultimate decision is not illogical or irrational or lacking in evident or intelligible justification. Relevantly, Nicholas J opined that ‘the Tribunal’s finding that there was no corroborative evidence was the product of illogical reasoning that was both extreme and significant to the outcome of the review’, noting that:

    [6] APW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 46.

    One of the difficulties facing the Minister in defending the Tribunal’s decision is that the four matters referred to by the Tribunal when concluding that it would not give the Guarantor Document any weight appear to have been relied upon by it cumulatively rather than independently. It cannot be inferred that the Tribunal would have declined to give the Guarantor Document any weight had it not made the illogical findings.[7]

    [7] Ibid at [41] and [43].

    [citations omitted]

24. As such, where the existence of a document is claimed to be material evidence in support of a claim, the Tribunal must actively engage with its authenticity in forming a view about whether the document should be given weight. Questions about how the documents came into existence, how they came into the applicant’s possession and about the alleged criminal action referred to in the documents will be relevant to assess the credibility of claims made about false charges and convictions, including the authenticity of the documents which are said to evidence those claims. Exploring this issue may raise difficult questions for the Tribunal, particularly if the Tribunal questions an applicant to test the credibility of evidence about an event which is alleged to have taken place and where the existence of the lawyer-client relationship itself is in doubt. This would lead to an incongruous position where the Tribunal may need to warn an applicant about a privilege which cannot exist because the lawyer-client relationship is a fiction and does not exist. In this case, our enquiries went to the heart of whether the applicant actually retained a lawyer to defend criminal proceedings and, if so, what happened in relation to those proceedings, rather than any legal advice given.

1. Given there appears to be a contention that certain questions were impermissible without the applicant first being given a warning, it is relevant to examine whether the Tribunal’s questions called for a warning, whether the answers given by the applicant involved the disclosure of privileged communications and, if so, the consequences of this. Neither the applicant nor his advisor particularised these concerns and so we were left to review a transcript of the hearing to ascertain whether there were any questions in line with these legal principles which led to evidence that we should, in fairness, disregard.

2. In the second hearing, we asked the applicant to describe the actions he took after he was allegedly served with a first information notice. We also asked the applicant questions about what happened when he went to court, what happened at the bail hearings and what information he was given about the various court appearances. The applicant was asked about what the lawyer told him at the first consultation. This question may have led to the disclosure of a privileged communication, relevantly, about the legal advice received by the applicant in relation to any criminal proceedings. The applicant said that his lawyer told him he would be given a date for the hearing; the lawyer would represent him, and he would apply for bail on his behalf. This is a legal communication in a broad sense but it is not apparent from the answer that the applicant was given legal advice about prospects and the issues involved in the case, other than preliminary advice about the next steps that were likely to occur.

3. The applicant said that after this meeting he received a notice of the court date which was listed in late May 2016. The applicant was asked a question about what the lawyer told him was going to happen and the applicant said his lawyer told him not to worry and that he would arrange bail. The applicant was then asked what happened when he went to court on each occasion and he said that he was not present in court but that the lawyer told him what had happened and that he had arranged for bail. At no stage did the Tribunal ask the applicant about any advice alleged to have been received or obtained from the lawyer in respect of the criminal proceedings and the questions were directed to what happened in the legal process and what he was told by his lawyer had happened or would happen. The applicant gave evidence about communications he received from the lawyer about what the Magistrate had allegedly ordered, not about any legal advice given. The other questions from the Tribunal were directed to whether the applicant had given documents to his lawyer and, if so, whether those documents were in the possession of his lawyer and whether they could be obtained. This was raised with the applicant and his representative at the second hearing in the context of what we identified as a critical issue about whether we accept his claim about the existence of false charges and the conviction.

4. We explored with the applicant how he learned about the criminal charges, the proceedings and the nature of his own involvement. His vague account, including about the documents and his lawyer’s role, raised concerns about whether the applicant did in fact engage a lawyer in connection with his defence of the criminal proceedings.

5. In summary, having examined the questions asked and the evidence given by the applicant in relation to the alleged criminal proceedings, we are of the view that there is no evidence that should be disregarded, either because it was not privileged or because it is not apparent that the applicant would be unfairly disadvantaged.

   ANALYSIS OF THE APPLICANT’S EVIDENCE AND CLAIMS

   Claims about his involvement with the BNP

6. The applicant gave oral evidence over two hearing dates. The first two hearings were directed to the applicant’s claims and both hearings were lengthy. Part of the second hearing was directed to understanding the applicant’s claims about the criminal proceedings. The third hearing was scheduled to give the applicant the opportunity to respond to our concerns about his claims relating to the criminal proceedings and to submit any further evidence (including the taking of oral evidence from [witness A] or others). An outline of this evidence and our analysis of the applicant’s claims about his involvement with the BNP is set out below.

7. The applicant is from [village] Upazila[8], in [redacted] district. He said that this is a large village of some 10,000 residents, some 13km from the capital Dhaka, or 90 minutes by road.

   [8] Subdistrict, previously referred to as Thana.

8. The applicant claims to have lived in [region], although in his protection visa application he wrote that he lived in [redacted], a suburb of Dhaka, from 2008 to 2011, and again from September to November 2016. At hearing, the applicant said that one of his brothers lives in [a neighbourhood in Dhaka], and he used to stay there when there was danger in the village (hence, only temporarily).

9. The applicant attended a local high school to 2001, where he completed Year 10. He produced academic certificates relating to this period, mainly in the context of demonstrating his year of birth ([year], as claimed, rather than 1975, as stated on his passport).

10. The applicant said that he then went on to [redacted] College and started Year 12 but withdrew partway during 2003. The applicant attributed this to his political activities, which had distracted him from his studies. He did not provide any enrolment or other documents relating to this period, commenting briefly at hearing that he did not sit the Year 12 examinations, and he did not think to obtain documents from so long ago.

11. The applicant mentioned on his application form that he worked in a family business from August to November 2016; he gave no other information about paid work. At hearing, the applicant said that he had never had paid employment in Bangladesh. Asked about the reference on his form to working in a family shop, he said that he used to help his brother in the family business, for a couple of hours a day. He described this as a large store in the village, with groceries, building supplies and other items. He also mentioned that in [a neighbourhood in Dhaka] (where he claims to have lived from August to November 2016), one of his brothers ran a fabric shop.

12. The applicant provided the names of his parents and eight siblings on his protection visa application form, but no further details. At hearing, he said that his father died many years ago. His oldest brother now operates the family business. The applicant is the youngest of the nine siblings. He guessed that his oldest brother, who lives in Australia, is about 20 years older than him. One brother runs the family store in the village; another has the fabric shop in Kural; and another is in [a South-East Asian country]. The applicant is in regular contact with his family. He did not ask the Tribunal to take evidence from his older brother in Australia.

13. The applicant’s first passport was issued on [date] 2002. A partial photocopy of it is on the Department file; and the applicant brought the passport to hearing. This passport contains stamps showing his travel to [a South-East Asian country] in 2007 and again in 2011. The applicant’s current Bangladesh passport was issued in Bangladesh on [date] 2016. The date of birth recorded on both passports is 11 September 1975.

14. The applicant claims that in 2002, he obtained his first passport with the incorrect date of birth in 1975, on the basis of an ‘agent’s’ advice that this would make it easier for him to obtain work permits abroad. Relevantly, if the applicant was born in [year], as claimed, he would have been [X] years old in 2002, but documents giving his birth year as 1975 would present him as a 27-year-old. While it is plausible that the applicant may have been advised to nominate an incorrect date of birth of [X] years earlier to obtain work permits, the fact that the applicant did not first depart Bangladesh until 2007 at the age of [X] somewhat undermines this claim. It suggests there was no urgency to his departure and raises questions why he went to the trouble of getting a passport with false information.

15. The applicant provided various documents to support his current claim to have been born in [year]. These included school certificates from his local high school, although, curiously, no documentation relating to [redacted] College. He also provided a copy of a birth certificate showing that he registered his birth online with the Bangladesh Office of Registrar of Birth and Death, on 31 January 2017. Given the recent nature of this registration, and the applicant’s own claim that his passport was based on false information that the Bangladesh authorities had accepted, we place no weight on the birth registration dated 31 January 2017 as independent corroboration of his date of birth.

16. Despite the inconsistencies in the applicant’s explanation for why he agreed to lodge false information to obtain a false passport, overall we accept the applicant may have been born in [year], as claimed, based on his account of his family composition and his siblings’ ages and his school certificate. It is plausible that the applicant obtained the passport in 2002 in the hope of obtaining employment abroad then (even though it did not eventuate until 2007) and that he simply relied on that document when he applied for a fresh passport in [month] 2016. Relevantly, the applicant’s acquisition and use of a passport based on false information, on the recommendation of an agent, are consistent with country information about the prevalence of documentary and migration fraud in Bangladesh.

17. At the Department interview, the applicant stated that he needed a passport with an incorrect date of birth to assist with getting a work permit and to reduce the risk of political opponents identifying him. At hearing, the applicant repeated this claim. We accept it is plausible that the passport records the incorrect date of birth to enhance the applicant’s prospects of working abroad, but for the  reasons set out below, we do not accept at face value that this was motivated by fear from political opponents.

18. The fact that the applicant was prepared to obtain false official documents, including a passport, raises concerns about other documents provided by him and his overall credibility. It is also relevant to note that the applicant’s claimed age affects the timeline of his claimed political career, and potentially his profile and influence.

19. At hearing, the applicant said that his family are BNP supporters, and he supports the key tenets of its ideology, such as democracy and nationalism. We accept the applicant’s evidence in this regard.

100.   General country information indicates that the BNP has been one of Bangladesh’s mainstream parties. For instance, the August 2019 DFAT report notes:

Bangladesh has long had a two-party political system dominated by the Awami League and the Bangladesh Nationalist Party (BNP). The Awami League 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.[9]

[9] DFAT Report, Country Information Report – Bangladesh, 22 August 2019 para 3.61

101.   The applicant claims that he first became involved in BNP politics at [redacted] College in 2001 (aged [X]) and was soon elected as Vice President of the BNP of the Jatiyatabadi Chhatra Dal branch (JCD).

102.   The JCD is the student wing of the BNP.[10] There is also a youth wing of the BNP which is called the Jatiyatabadi Jubo Dal, or Jubo Dal for short (JBD).[11] The student wing and youth wing are separate auxiliary organisations. The current leaders and activities of the JBD are mainly located in Dhaka.[12] The applicant claims that he has held positions in both organisations at various times.

[10] Immigration and Refugee Board of Canada 2001, Bangladesh: Bangladesh Nationalist Party (BNP) student wing called the “Jatiyatabadi Chattra (Chhatra) Dal (JCD)”; its current leaders and activities, mainly in Dhaka (1998-2001), BGD36671.E, 9 April

[11] Singh, N K.(ed) 2003, ‘Bangladesh Nationalist Parties (BNP): Origin and Development’ in Encyclopaedia of Bangladesh, Anmol Publications, New Delhi, pp.269–270

[12] (1998-2001), BGD36671.E, 9 April).

103.   The applicant claims that he held the position of Vice President of the JCD branch for two years. At hearing, he said that he was elected to the position. His evidence about this was vague and did not offer much insight into the process, apart from saying that there had not been many contenders.

104.   At the Department interview and hearing the applicant said that, as Vice President, he used to attend meetings every two to three months and participate in protests and similar activities. At hearing, he said that the JCD branch had some 50 to 100 members, He named the President of the JCD branch, giving only his nickname (he did not know his full name). The applicant said that local BNP leadership used to communicate and give instructions to the President, but not to the applicant directly.

105.   The applicant said that at [redacted] College, the student wings of the major parties were active, on campus and off-site. When asked about any violence between the rival student wings, he replied briefly that there were no major issues.

106.   The applicant provided no evidence of his attendance at [redacted] College despite submitting high school and similar records to support his claimed age and he said that he has no records or correspondence about his political activities in the college.

107.   The applicant claims that from September 2001, he helped the BNP candidate [named], in the national election campaign. According to his other evidence, the applicant was [X]years old at the time and studying at college. The applicant said that he was ‘very active’ during the campaign, particularly towards the end.

108.   The applicant travelled to [a South-East Asian country] in March 2007 and returned to Bangladesh in November 2008. He claims that on his return, he campaigned for BNP candidate, Shah Mozzem Hossain, in December 2008. We accept that as a supporter of the BNP the applicant may have campaigned for BNP candidates from time to time.

109.   The applicant’s written claim is that on 2 June 2009, Awami League cadres attacked him at the local market, striking him with rods and kicking him. Local people took him to a clinic, where he received treatment for three days.

110.   At the Department interview and at hearing, the applicant said that it was around dusk (8:00pm) when seven or eight Awami League cadres attacked him. He expanded on this at hearing, saying he was walking home from a meeting in the village BNP office, when Awami League workers, local men whom he knew by name, attacked him on side of the road. They proceeded to hit him with rods. They warned him to stop his work for the BNP and proceeded to beat him. There were some passers-by at the time, but not much traffic. The applicant lost consciousness. Some local people came to his help and took him to a village clinic.

111.   The applicant said that he suffered injuries from blows to his head, back, shoulders and arms. He did not identify any specific injuries, other than to confirm there were no broken bones. He said that, as the attack occurred some time ago, he does not have any evidence of his treatment, such as a discharge certificate or receipts. When asked about any long-term effects from the attack, the applicant referred to ‘some pain’. He remained in the clinic for three or four days. His mother and some of his siblings visited him there; one brother was already in Australia, and another one was working in [a South-East Asian country] at the time. The applicant claimed to have lodged a report with the police. At hearing, the applicant said that he gave details to the police, including the names of the attackers. He said the police wrote up a report and gave him a copy, which he no longer has. In any event, he believed that the police were just going through the motions. There was no follow up to the complaint. In reply to questions, the applicant said that he also informed BNP colleagues about the attack, but they were powerless as the Awami League was in power.

112.   According to the applicant’s protection visa application, he was living in Dhaka ([suburb]) from 2008 to 2011, and not in the village. When asked whether he took any added precautions following the attack in 2009, the applicant replied that he moved away for two or three weeks, but later resumed his political work in [Sub-district].

113.   The applicant claims that in 2010, the BNP youth wing of the BNP (the JBD) set up a new [Sub-district] Upazila committee[13]. He initially worked for this as a member and claims that he was then elected as its General Secretary. Given the applicant’s claimed date of birth, it appears he was [X] years old at the time. To put this in context, it is relevant to note that an Upazila is an administrative unit within a District. There are 64 Districts and 492 Upazila in Bangladesh and the [redacted] Upazila is an administrative unit within the [redacted] District.

[13] The applicant’s statement of claims refers to his membership of the [Sub-district] branch of the BNP itself, rather than the youth wing. This appears to have been a clerical (or similar) error in the preparation of the statement.

114.   In his written claims, the applicant wrote that as General Secretary he organised meetings, liaised with other members and conducted meetings. At hearing, he said that, as General Secretary, he used to organise and conduct meetings for the Jubodol in [redacted] Upazila. He named the local Jubodol president, and said he is still in Bangladesh and active in the party. The applicant’s description of his role as General Secretary was vague and seemed to be largely administrative. Nonetheless, at face value it would appear to involve interaction with other BNP members, and this may have given the applicant some local profile.

115.   We asked about any photographs, letters or other contemporaneous evidence from this period of political work, from his own collection or from political colleagues. He replied briefly that he does not have any such material.

116.   The applicant claims that on 12 January 2011, he was leading a procession against the Awami League government, to protest corruption and the torture of BNP workers and leaders. At hearing, he said that the protest took place in the morning and attracted 100 or more supporters of the BNP student wing. The applicant says he was asked to lead but did not provide any detail as to how this came about. He says that he was attacked by Awami League supporters during the protest.

117.   At hearing, he said that some 20 to 25 Awami League supporters came towards the BNP protestors with sticks, and he suffered injuries to his right hand, his back and other parts of his body. When asked for more detail, the applicant explained that he had injuries on his right hand and forearm, with considerable swelling. He said that he also had injuries on other parts of his body but did not specify where. The applicant said that he received treatment in the clinic for five days, during which he was in pain, unable to walk and confined to bed. He received medication while in hospital; his right arm was in a sling, and staff took x-rays, which took several days to process. The x-rays did not reveal any broken bones.

118.   The applicant produced a medical certificate from [Medical centre], dated 16 January 2011. This document states that the applicant was admitted at 11:30am on 12 January 2011 and discharged on 16 January 2011. The certificate refers to a ‘hand injury’. The applicant said he obtained the certificate following the Department interview after the delegate expressed interest in any supporting documentation. We raised concerns about the contents of the medical certificate; the applicant’s claimed need for five days in hospital with a hand injury; and his account of how he obtained the certificate. The applicant said that his evidence about this was true and said that it was possible that the certificate only referred to a hand injury because that would have been the most distinctive injury. The applicant’s evidence about the protests in 2011 and his injuries after an alleged attack evidence was vague and unconvincing.

165.   The letter from [witness D] ‘certifies’ that he knows the applicant personally and notes that his family have been involved in the politics of the BNP. We take this to mean that the applicant and his family are supporters of the BNP, which we accept. [witness D] then refers to the applicant’s claimed role when he was in the student wing of the party in 2001, including his role in campaigning for a BNP candidate during that year. He refers to the applicant being a member of the executive council of the [village] Union Nationalist Party the BNP in 2005 and refers to the applicant’s role in campaigning for [witness D] in the December 2008 elections. His letter refers to the attack claimed by the applicant in June 2009, but the terms of the letter suggest this is based on information he was told by the applicant. Thereafter, [witness D] mentions incidents claimed by the applicant, being the attack alleged in 2011, his hospitalisation and the fact that he was ‘forced to go abroad to save his life’. [Witness D] states that the applicant returned to Bangladesh in March 2016, at which time he met the applicant. From this we infer that [witness D] has no personal knowledge of any of the matters referred to prior to this date. He refers to the election in March 2016 and the violence that erupted on the day of voting involving the Awami League. He also refers to the false case against the applicant and, notably, refers to the case number. It is evident that this information was provided to [witness D] by the applicant, or on his behalf, and given that we have rejected the credibility of these claims, we place no weight on his statement about the claimed false charges. It is notable that [witness D] does not mention the applicant’s claimed role as Vice President of the Bangladesh Nationalist Jubodol [redacted] Upazila Committee.

166.   The document dated 22 April 2016 headed ‘Bangladesh Nationalist Jubodol [Sub-district] Upazila Committee’ is purported to be approved by [witness C], President, [redacted] District Jubodol. The document is a represented to be a list of the Committee members as at 22 April 2016 and the applicant is named as Vice President. However, this document is not probative because its provenance is not verified, [witness C] did not provide a statement verifying these details and there is no other probative corroborative evidence that the applicant was appointed to this role, other than a brief mention of this in the updated statement from [witness B]. As already noted, we did not find [witness B’s] evidence to be persuasive and the applicant’s evidence in relation to this appointment and his role was vague and unconvincing.

167.   In light of the applicant’s claim that his ‘lawyer’ and nephew arranged fraudulent police and court documents, we place no weight on the statements submitted under the names [lawyer A] and [lawyer B].

168.   The applicant also presented two statements from [witness A], General Secretary of the Bangladesh Nationalist Party (BNP) Australia Inc. which is one of several groups in Australia claiming an association with the BNP. A letter dated 17 January 2017 states that the applicant was involved in [witness A’s] group since his arrival in Australia (late 2016) and refers in broad terms to the applicant’s fear of persecution on political grounds. A letter dated 2 November 2020 states that the applicant became a ‘dedicated member’ of the BNP Australia in 2018. We note [witness A’s] willingness to provide oral evidence. The hearing scheduled for 10 June 2021 would have provided an opportunity to clarify and confirm with [witness A] the timing and nature of the applicant’s involvement with the BNP, and explore what if any profile this particular group has in the eyes of the Bangladesh authorities. In sum, we accept [witness A’s] statements as further evidence of the applicant’s contact with BNP Australia and participation in some activities but place limited weight on them as an objective measure of the applicant’s profile or dedication.

FINDINGS OF FACT

169.   We do not accept the applicant’s claim about the false charges allegedly filed against him in March 2016 nor his evidence about the conviction on 7 February 2017.

170.   First, we found the applicant’s account of dealing with his lawyers and the court processes to be vague, even after allowing for his obvious limited knowledge of criminal procedure. Moreover, some aspects of his account are anomalous. For example, despite the applicant's claim that he managed to flee on the day of the alleged offences, the seriousness of the charges and the apparent speed with which they came before the court, there is no suggestion that the police came looking for him, questioned him or issued an arrest warrant prior to the (purported November 2016 arrest warrant). In this context, the applicant's claimed attendance at court without having to enter to courtroom are difficult to reconcile with his claims that the authorities are pursuing him on serious charges (irrespective of whether they are politically motivated false charges).

171.   Secondly, these claims are not corroborated by any other cogent evidence and the documentary evidence which was provided by the applicant was fabricated. Witness statements provided to the Tribunal from late 2020 (such as [witness B] and Shah Mozzem Hossain in Bangladesh) refer to ‘false charges’ in general terms, with no mention of any actual criminal proceedings, conviction or sentencing. These statements appear to be hearsay and lack relevant detail, suggesting the witness relied on information they were told by the applicant. Notably, none of these witnesses outlined the grounds on which they knew the information to be correct. The only other witnesses who corroborated the applicant’s claim were the lawyers, [lawyer A] and [lawyer B]. The information said to have been provided by [lawyer A] has been discredited and there is doubt as to whether this person actually sent the communication to the Tribunal and whether he acted for the applicant in any criminal proceedings.

172.   Given the efforts made to fabricate evidence in response to various requests by the Tribunal, there is also doubt whether [lawyer B] exists. The applicant did not ask us to contact these witnesses, and we consider that it would be inappropriate for us to initiate contact with the applicant’s (nominated) lawyers, given the nature of the applicant’s relationship with them and their location in Bangladesh, the country of claimed persecution.

173.   It is also notable that the letter from [lawyer B], dated 20 December 2020, indicates that he is acting on the applicant's behalf although we do not have before us any evidence relating to his legal practice or any professional relationship with the applicant. lawyer B’s] letter refers to the complexity of the applicant's case and that preparations are underway to file another case against the applicant. It is also notable that [lawyer B] repeats the claims made in the police and court documents that have been discredited. There is no detail provided about the source of the information about the pending new charges and the applicant did not previously mention this in his statement of November 2020 or in his evidence to the Tribunal at the first hearing. When asked about this at the second hearing, the applicant’s evidence was vague and unconvincing. It is also difficult to understand why new charges would be filed in relation to the applicant when he has been outside Bangladesh for over five years. We are thus not satisfied on the available material that this is a genuine letter from a lawyer informing his client about a legal matter. Rather, we are concerned that this letter was prepared for the purposes of bolstering the applicant's protection claims.

174.   It is plausible that politically motivated false charges may be laid against applicants who are being persecuted. It is also plausible that those applicants may not have documentary evidence to corroborate such claims because they had to flee the country in question or are unable to get access to the relevant court records. However, this is not such a case. We do not accept that the applicant was a high-profile BNP supporter or activist and, as such, do not accept he was targeted with false charges. Moreover, the fact that documents have been fabricated fundamentally undermines the applicant’s credibility in relation to this claim and his claims more generally. We therefore reject the applicant’s claim that he was falsely charged and convicted in his absence. Our finding in this regard is reinforced by the fact that the applicant provided little detail about this claim at the time he made his application for protection, none of the witnesses referred to this claim in their various letters of support provided to the Department and there are anomalies in his account, which was generally lacking in detail and unconvincing.

175.   The fact that the applicant referred to the conviction at the time of the Department interview, when the conviction was not recorded until five days later, leads us to the conclusion that the applicant made this up during the interview. There is no other obvious explanation for why the applicant was able to tell the delegate about the conviction when, according to all of the fabricated documents, this did not occur until 7 February 2017. The only other possible explanation is that false charges were filed, and the applicant was not convicted but decided to embellish and fabricate evidence to convince the delegate about the seriousness of his fears of persecution. An alternative explanation may be that there were no false charges but the applicant still feared he may be persecuted on his return because of his previous connections with the BNP and made this claim and fabricated documents to convince the Tribunal about what were in fact legitimate fears of persecution. However, this is speculative because at no stage did the applicant explain his actions or make such an assertion to the Tribunal, notwithstanding that he was given the opportunity to do so on a number of occasions, including at the scheduled hearing. If the applicant had raised any explanation, the Tribunal would have been able to test its credibility.

176.   In this regard, an applicant should not be given the benefit of the doubt or an advantage by providing a blanket denial or professing ignorance in writing but failing to appear at a hearing, and thereby subject themselves to questioning. To do so would create an unfortunate precedent which would undermine the integrity of the merits review and hearing process. Accordingly, there is simply no evidence to explain the fabrication of the police and court documents and in the absence of evidence we not only reject his claims but find that the applicant’s credibility as a witness of truth in other respects is seriously compromised.

177.   In our view, the applicant's past reliance on document fraud to obtain migration outcomes is significant in assessing his current claims. It is clear, for instance, that to obtain the 2002 passport with a false date and year of birth, the applicant or an agent acting on his behalf would have had to provide false documents relating to his birth. We have similar doubts as to the genuineness of the purported [South-East Asian country] visit pass.

178.   For the reasons previously outlined, we are not satisfied that the applicant was an active member of the BNP while he was in [a South-East Asian country]. We accept that he may have had limited and relatively low-level roles with the BNP prior to his departure for [a South-East Asian country] in 2011 but do not accept that he was a high-profile BNP activist such that he was forced to flee. While we accept that the applicant may have been involved in assisting the BNP at polling booths on the day of the election in March 2016 and that there were protests by the Awami League, we do not accept that the applicant was persecuted because of this or that false charges were filed against him.

179.   The applicant claims to have been elected as the Vice President of the Jubodal's [Sub-district] Branch in April 2016 and to have engaged in a wide range of public activities, including acting in the President's absence. We do not accept this claim. As previously outlined, the evidence proffered as independent corroboration of this claims carries little weight. Moreover, it does not overcome our significant, unresolved concerns about how the applicant could possibly have been assigned such a position and responsibilities after an absence of some five years in [a South-East Asian country]; how he would expected to hold such a position if, as claimed, he was subject to police investigations, just days after the 22 March 2016 elections and how he can be believed about this when his evidence about this role was vague and lacking in detail and his credibility as a witness of truth is compromised.

180.   Finally, the applicant's return travel to India and [South Asian country] for five days in September 2016 adds to our doubts about his claims that he was persecuted or that he feared harm from persecution because of his role with the BNP. The applicant claimed that he undertook this travel for his safety, as he had to find somewhere safe to stay. When pressed for details, the applicant said someone had given him the telephone number of a contact in India, who he spoke to briefly. In our view, the brevity of the applicant's visit to India, the inclusion of [South Asian country] and the lack of detail of any efforts to seek protection in India indicate that his trip was for other purposes. It reinforces our concerns that the applicant did not fear harm on his return to Bangladesh and, more broadly, that his evidence is unreliable.

181.   The letter of support from other witnesses provides limited corroboration of the applicant’s claims. As already noted, a number of the statements made in the letters appear to be based on hearsay or information provided by the applicant, not based on their own knowledge. Insofar as these letters express opinions about whether the applicant will face harm if he returns to Bangladesh, these expressions of opinion do not set out the basis for the opinion in respect of the applicant and generally make broad statements which are not supported by evidence. In addition, it is relevant to note that the statements made in the letters about the false charges, which we reject, tend to show that the witnesses are prepared to make statements in support of the applicant without necessarily having a factual basis on which to make these statements. In other words, the statements provided advocate for the applicant as opposed to providing cogent objective evidence in support of the applicant’s claims. In general, the letters of support are well-intentioned, but they propound a certain position and, to this extent, we consider them to be of limited probative value and not entirely reliable. In short, they do not displace the significant concerns we have about the credibility of the applicant’s claims.

182.   In summary, we do not accept the applicant’s claims that he was falsely charged and or that he was targeted by the government or the BNP while he was living in Bangladesh. While we accept that the applicant is, and may be a supporter of the BNP and that he may have been involved in the student wing at his College many years ago, we do not accept that the applicant held the position of Vice President of the Bangladesh Nationalist Jubodol [Sub-district] Upazila Committee in April 2016 or at all. As such, we do not accept that the applicant held an official position in the BNP or that he had a long-term sustained and active involvement with the BNP as claimed. Nor do we accept that the applicant had an adverse or high profile as a local leader or activist in Bangladesh, or that he was perceived as such. We do not accept that the applicant was persecuted by the filing of false charges because of his profile. It also follows that we do not accept the applicant will be prosecuted in relation to these charges or the claimed conviction if he returns to Bangladesh.

183.   The applicant has provided a written statement from [witness A], Acting President of the Bangladesh Jatiotabadi Jubo Dal Australia, photographs showing his attendance at BNP functions and other evidence of his involvement in BNP activities in Australia. The hearing on 10 June 2021 would have provided an opportunity for the applicant to present further evidence relating to these activities, including oral evidence from [witness A] or others. On the limited available evidence, and given the above findings about his political leaning in Bangladesh, we are satisfied that he engaged in this conduct other than for the purpose of strengthening his claims to be a refugee, and that it does not fall within the scope of s.5J(6) of the Act. We form this view because we accept that, as a BNP supporter, the applicant may have an interest in meeting and networking with likeminded countrymen in Sydney; even though he may also have been motivated by a wish to bolster his protection claims.

CONSIDERATION

184.   The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or, in the alternative, under the complementary provisions.

185.   A person will be a refugee if he or she has a well-founded fear of persecution and is unable or unwilling to avail himself or herself of protection in the country of their nationality. The fear of persecution must have the relevant nexus with the matters enumerated in s.5J of the Act to be a well-founded fear of persecution within the meaning of the section. Those matters are based on the grounds set out in the Refugee Convention, which has now been codified under the Act. A person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and there is a real chance the person would be persecuted for one or more of those reasons if they return to their country of origin and the real chance relates to all areas of that country. The reason must be the essential and significant reason (or reasons) for the persecution and the persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm may include significant physical harassment or threats. Systematic and discriminatory conduct includes conduct which is deliberate and is directed towards a person because of something perceived about the person or attributed to them by their persecutors. A person may be persecuted by the State and its agents as well as non-state actors, when the State is unwilling or powerless to prevent the persecution.[18]

[18] Applicant A v MIEA [1997] HCA 4 and MIMA v Respondents S152/2003 [2004] HCA 18.

186.   The applicant claims to fear serious harm if he returns to Bangladesh, at the hands of the Bangladesh authorities (including the police and prison authorities), and the Awami League politicians and cadres acting in concert with them. He fears, among other things, arrest, the enforcement of the ten-year prison sentence (on politically motivated false charge) and associated mistreatment.

187.   In this case, we accept that the applicant prefers the BNP and is a low-level supporter. However, we have found the applicant has fabricated claims and, at best, has embellished or exaggerated his role in the BNP. We do not accept the claims made about his past political profile and activities, his alleged persecution (including his conviction, and the various incidents of physical violence and intimidation), or that he is of ongoing interest to the Bangladesh authorities as a result of any past activities or his contacts in Australia.

188.   Based on the material before us, and subject to the observation that the hearing on 10 June 2021 would have provided an opportunity to explore this in further detail, we find that the applicant does not have the political opinion or motivation to engage in BNP politics if he returns to Bangladesh in the future. As noted above, the applicant’s activities in Bangladesh and his prolonged periods outside the country lead us to conclude that his priorities and interests lie outside politics, including BNP politics. As such, we are not satisfied that he would engage in political activities, demonstrations or the like, if he returns to Bangladesh. We are also not satisfied that he would be motivated to do so, but feel he has to refrain from such conduct, or alter or conceal his political beliefs, to avoid persecution.

189.   We accept as plausible that the applicant is apprehensive about returning to Bangladesh, in part due to his prolonged absence from the country, and also the continued political and economic instability there. These generalised concerns do not engage the refugee criterion.

190.   However, we are not satisfied that he genuinely fears persecution on the basis of his protection claims, as required by s.5J(1)(a) of the Act.

191.   We must also be satisfied that the applicant’s fear is ‘well-founded’ for the purposes of the definition in s.5J of the Act. Relevantly, the question is whether there is a real chance the applicant will be persecuted for one or more of the reasons enumerated in the refugee criterion if he returns to Bangladesh and, if so, whether this relates to all areas of Bangladesh. As already noted, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility and must be assessed into the reasonably foreseeable future, not simply at the time of the decision.[19] While it is relevant to consider past events in determining what may happen in the future, making an informed determination about these matters is inevitably difficult, particularly when the security situation in a country is volatile.

[19] AIE15 v Minister for Immigration and Anor [2018] FCA 610 per Perry J at [26] to [28] referring to SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.

192.   Having regard to the country information on our findings in relation to the applicant’s claims, we are not satisfied that there is a real chance the applicant will be persecuted on his return to Bangladesh. The most recent DFAT report of August 2019 states, among other things, that politics in Bangladesh is volatile and often violent. It notes that the current Awami League government has pursued opposition groups: ‘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 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.’[20] Specifically, in relation to BNP figures, DFAT opines that allegations of violence are credible, and 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 submission of 5 March 2021 invites us to consider recent Tribunal decisions which have found that BNP activists’ intent on being politically active on their return to Bangladesh have a well-founded fear of persecution.

[20] DFAT report, paragraph 3.70.

193.   The DFAT report focuses on activists and those who participate in demonstrations. Having found that the applicant is not an activist and will not engage in political activities if he returns to Bangladesh, but is only a low-level supporter, we do not consider that the DFAT directly addresses his situation. We note that the DFAT report is now several years old, and that we should exercise caution in drawing inferences from the absence of reports. However, there are no claims or evidence, including no country information, to suggest that the Awami League government or its agents have the motivation or resources to pursue low-level BNP supporters, or that they in fact doing so. We are not satisfied that the applicant’s support for the BNP, without more, gives rise to a real chance of serious harm amounting to persecution. 

194.   We have accepted that the applicant has contacted a BNP group in [Australia], and participated in some activities, and that his activity does not fall within the scope of s.5J(6) of the Act. However, there are unresolved questions about the timing of his involvement, his role and prominence, and his level of commitment. These are matters that we could have explored further at hearing on 10 June 2021. On the available material, we find that such activities have been limited, and we are not satisfied that the Bangladesh authorities or others have any adverse interest in the applicant as a result of them.

195.   We have considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, we are not satisfied that the applicant has a well-founded fear of persecution and we are therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

196.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, we have considered the alternative criterion in s.36(2)(aa) of the Act for complementary protection.

197.   Protection obligations will arise under s. 36(2)(aa) of the Act if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

198.   The applicant did not present any claims or evidence that he feared significant harm for reasons other than his political profile, and no claims are evident on the material before us. Having regard to our findings of fact and analysis about whether the applicant will face a real chance of serious harm from the BNP or government authorities if he returns to Bangladesh, it follows that we are not satisfied he will face a real risk of significant harm from the BNP or government authorities on his return to Bangladesh. As such, we are not satisfied that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his return to Bangladesh.

199.   We are therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

DECISION

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

J.L Redfern PSM, Deputy President
James Silva, 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.

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36     Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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