1707800 (Refugee)

[2021] AATA 5138

1707800 (Refugee) [2021] AATA 5138 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707800

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:L. Symons

DATE:5 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2021 at 5:48pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – political violence – fear of torture – fear of killing – political activities in Australia – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, first arrived in Australia [in] October 2015 as the holder of a [temporary] visa that was valid until [October] 2016. On 18 October 2018, he was granted a Bridging A visa in association with his application for a Protection visa. On 9 February 2018, he was granted a Bridging B visa. He departed Australia [in] February 2018 and returned [in] March 2018. On 13 February 2020, he was granted a further Bridging B visa. He departed Australia [in] February 2020 and returned [in] March 2020.

3. On 14 October 2016, the applicant applied to the Department of Immigration (the Department) for a Protection visa. On 15 March 2017, the Department refused to grant him the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 13 April 2017, he applied to the Tribunal for review of that decision.

4. On 25 August 2021, the Tribunal wrote to the applicant and invited him to attend a video hearing on 14 September 2021 to give evidence and present arguments relating to the issues arising in his case. The hearing invitation was sent to his migration agent by email on 25 August 2021.

5. On 26 August 2021, the Tribunal received an email from the applicant’s migration agent indicating that the applicant requested a “face to face/physical” hearing. Due to the Covid-19 pandemic and a lockdown imposed through Public Health Orders the Tribunal was unable to offer the applicant an in-person hearing. However, a video hearing provided him with the opportunity to interact with the Tribunal “face to face” and to give evidence and present arguments from a safe environment. Accordingly, the Tribunal formed the view that he would not be disadvantaged by not attending an in-person hearing.

6. The Tribunal determined it was reasonable in the circumstances to hold a hearing by video. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. On 27 August 2021, the Tribunal wrote to the applicant and informed him that his request for a postponement of the hearing was carefully considered and denied.  

7. On 31 August 2021, the Tribunal received a letter dated 30 August 2021 from the applicant’s migration agent enclosing a letter dated 30 August 2021 from [Health Service 1], a Response to Hearing Invitation and a statement from the applicant dated 30 August 2021. In his letter, the applicant’s migration agent listed the enclosed documents and stated “the above documents have demonstrated that the applicant is intending to vacate this hearing date and is wishing to have a face to face hearing when situation will be permitted in NSW”. (sic)

8. The letter from [Health Service 1] indicates that the applicant is suffering from anxiety, depression and stress and his symptoms of illness are a lack of motivation, insomnia, tiredness and feeling depressed. He was referred to a Psychologist for counselling. There is no evidence to indicate whether the applicant was a patient of that medical practise, whether the writer had had any contact with him prior to 30 August 2021 and how long the consultation was for. The symptoms and diagnosis appear to be based on self-reporting by the applicant. The General Practitioner does not indicate that the applicant was unable to participate in a hearing. There is no evidence to indicate that the applicant has sought counselling from a Psychologist.

9. In his statement, the applicant stated that he is unable to attend a hearing because he believes that there may be connectivity problems and delays in transmission that may make it difficult to communicate and it will not give “pen picture of my hearing”. (sic) He has been without his parents, relative and others for a number of months and as such is mentally unwell and unable to return home. Thus, he become mentally ill. He requested that his hearing be adjourned so that he could attend a face to face hearing.  

10. Having carefully considered this evidence, the Tribunal noted that the applicant’s request and his migration agent’s request for a “face to face” hearing will be satisfied by a video hearing where he will be able to see and speak to the Tribunal “face to face”. In the absence of any independent evidence that there may be connectivity problems or delays in transmission, the Tribunal was not satisfied that the applicant would have technical difficulties communicating with the Tribunal. He had the services of a Bengali interpreter at the hearing.

11. The Tribunal notes that the applicant has been living in Australia since 2015 and has travelled overseas twice since then, the last time being in 2020. The Tribunal accepted that he may miss his family and friends. In the absence of any medical or psychological evidence that he was unable to participate in the hearing, the Tribunal was not satisfied that he was unable to participate fully and meaningfully in a video hearing. On 31 August 2021, the Tribunal wrote to the applicant and informed him that it had carefully considered his request for a postponement of the hearing and the supporting evidence and declined his request.

12. On 9 September 2021, an officer of the Tribunal contacted the applicant to check the equipment and whether there were any connectivity problems or delays in transmission. There were no such problems. 

13. The applicant appeared before the Tribunal via video on 14 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

14. The applicant was represented in relation to the review by his registered agent, [named], who attended the video hearing.

15. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CRITERIA FOR A PROTECTION VISA

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

17. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

18. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

19. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

20. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

22. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born on [date] in Bangladesh and is a citizen of Bangladesh. He has [specified family members]. His father is a businessman and his mother is a housewife.

    ·He undertook his [school level] at [a named college]. Whilst at this College he joined the Bangladesh Nationalist Party (BNP) Chatradal (Student Wing). In [year], he was elected as the [Official 1] of the College Committee Chatradal.

    ·After completing his [schooling] in [year], he enrolled in a [Degree 1 course] at [a named university]. At University, he met a number of student leaders who were in the Chatradal. They inspired him to get involved in student politics. Whilst at University between 2006 and 2011, he was “assimilated” into the Chatradal Committee. He later held the position of [Official 2] on the Committee.

    ·During the 2008 election, he worked for the BNP candidate, [Candidate A], who was defeated by his Awami League (AL) opponent, [Candidate B]. On [a day in] January 2009, when he was returning home from University, he was attacked by AL cadres at [Location 1]. They hit and beat him. A RAB Police car passed through the area and when they saw the car they fled leaving him unconscious on the road. “Roadside people” sent him to a local clinic where he was treated for four days. A protest was held at his University in relation to this incident.

    ·After he completed his degree in 2011, he joined the [District 1] branch of the BNP. In 2012, he became one of the executive members of the branch. At this time, Begum Zia called for the appointment of a caretaker government. However, Sheikh Hasina called an election (without appointing a caretaker government). On 5 January 2014, a “fake and voter less election” was held in Bangladesh. He led many demonstrations against this voter less election and was targeted by the AL cadres and administration.

    ·The AL won the 2014 election in a landslide victory and formed government. After the election, the AL government took revenge on the BNP and its allies. On [a day in] January 2014, at 7pm he was attacked at [Location 2] by a group of AL “goons”. They beat him, slapped him and ordered him to leave the city in front of a huge gathering. He cried and his whole body was bloodied and swelling. He was admitted to a local hospital and was discharged after 2 days.

    ·In early 2015, he was elected as the [Official 3] of the District Committee of the BNP. After obtaining this position, he showed his responsibility to the party and to the people. Therefore, he became an “eyesore” to the AL leaders and activists. Day by day he became their “serious target” and the situation became unpredictable. His mother suggested that he leave the country to “secure his life”. He obtained a [temporary] visa for Australia and left Bangladesh [in] October 2015.

    ·After his arrival in Australia [in] October 2015 he joined BNP Australia. In due course, he became one of the members of the organisation. If he returns to Bangladesh, he will be persecuted. His life will not be saved or protected in Bangladesh. He is seeking the status of a refugee.

23. The applicant filed with the Department copies of his Bangladeshi passport issued [in] 2015, a letter dated [in] February 2017 from [Leader A], [Official 4], [Group 1], two photographs of a group of people at a BNP celebration (in Australia) and country information on Bangladesh.

24. The letter dated [in] February 2017 from [Leader A] indicates that the applicant was an activist for the BNP in the Student wing of [District 1]. Since his arrival in Australia, he has been involved in the [specified section] of the BNP in Australia. He has regularly attended meetings and other activities arranged by the organisation. He told him that his life was in danger because he was involved in political activities. He left Bangladesh to avoid being killed or being abducted and tortured by the current government. The “top leaders” of the BNP and its associated wings have been victimised on countless occasions. Law enforcement agencies have abducted and murdered the BNP Organising Secretary, Ilias Ali, Commissioner Chowthury Alom and others. His life is in real danger if he returns to Bangladesh.

25. The applicant’s migration agent provided written submissions dated 25 February 2017 to the Department. In his submissions, he set out a chronology of the applicant’s claims, referred to the law and referred to country information.

26. The applicant attended an interview with the Department on 28 February 2017. During that interview, he reiterated and expanded on his written claims. He also made the following new claims:

    ·The main reason why he joined the BNP was because his father was involved in the BNP and his whole family supported the BNP. His family in Bangladesh have not had any problems because they are not active in the party.

    ·He was interviewed by the Bangladesh Ministry of Home Affairs and was selected to apply for a [temporary] visa for Australia following that interview. They supported him to apply for the [temporary] visa.  

27. The Department found that the applicant is not a person in respect of whom Australia has protection obligations. His application for a Protection visa was refused on 15 March 2017.

28. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 15 March 2017. He has also filed copies of a statement from him dated 10 April 2017, a Statutory Declaration from him dated 7 September 2021, four colour photographs and country information on Bangladesh.

29. In his statement dated 10 April 2017, the applicant stated that the delegate misunderstood and misjudged his case and he was seeking a review so that the decision made by the Department can be set aside. In his Statutory Declaration dated 7 September 2021, he stated that on 6 September 2021 his migration agent lodged a submission and documents to the Tribunal with his knowledge.

30. Three of the colour photographs are of a group of people in a room. Two of the photographs appear to have been taken at a celebration in 2017. The third photograph appears to have a banner with the BNP flag in the background. The fourth photograph appears to be of a demonstration on the side of a street at night.  

31. On 6 September 2021, the Tribunal received pre-hearing submissions from the applicant’s migration agent. In his submissions, he provided a chronology of events, the applicant’s claims and country information on Bangladesh. He submitted that if the Tribunal accepts that the applicant was actively involved with the BNP in Bangladesh, his claims that he will be targeted by the AL are consistent with the country information. He submitted that if the Tribunal accepts the applicant’s claims in relation to events that occurred to him in Bangladesh, it follows that he has a well founded fear of persecution if returned to Bangladesh. He submitted that the Tribunal should not make a finding against the applicant under s.5J(6) of the Act. He made a new claim that the applicant’s activities in Australia create a real chance of serious harm if he is returned to Bangladesh.

32. Following the hearing, the Tribunal received an email dated 15 September 2021 from the applicant’s migration agent enclosing a page of a passport with two stamps dated 2018. On 26 September 2021, the Tribunal received a post-hearing submission dated 25 September 2021 from the applicant’s migration agent and a Statutory Declaration dated 26 September 2021 from the applicant. In his Statutory Declaration, he stated that he had read the submission from his migration agent and they were sent to the Tribunal on his instructions and with his knowledge. 

    Receiving country

33. The applicant claims to be a citizen of Bangladesh and has provided a copy of his Bangladeshi passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Bangladesh. The Tribunal finds that Bangladesh is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third country protection

34. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.

    Assessment of claims

35. The applicant gave evidence that his application for a Protection visa was prepared by his migration agent based on his instructions which were true and correct. He was satisfied that his visa application was accurate and complete. There were no changes in his circumstances since he filed his visa application. 

36. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Bangladesh, his travel overseas in 2018 and 2020 and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, inconsistent, implausible and unconvincing. He made new claims during the hearing. The Tribunal formed the view that he was fabricating some of his evidence as he was giving it. His conduct in Bangladesh and in Australia was not consistent with his claims. The Tribunal finds that he is not a reliable witness for the following reasons:

37. First, in his Statement of Claims, the applicant claimed that when he was at College he joined the BNP Chatradal (Student Wing). He claimed that in [year] he was elected as the [Official 1] of the College Committee Chatradal. He claimed that when he was at University between 2006 and 2011 he got involved in student politics. He claimed that he was “assimilated” into the Chatradal Committee and later held the position of [Official 2] on the Committee. He claimed that after he completed his degree in 2011, he joined the [District 1] branch of the BNP and in 2012 he became one of the executive members of the branch.

1. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 15 March 2017. It indicates that during his interview with the Department on 28 February 2017 he made new claims that the main reason why he joined the BNP was because his father was involved in the BNP and his whole family supported the BNP. He claimed that his family in Bangladesh have not had any problems because they are not active in the party.

2. During the hearing, the applicant gave evidence that his father was involved with the BNP and donated money to the BNP. His [brothers] were also involved with the BNP but not to the extent of their father. His brothers were involved in politics as students but are now not actively involved.  When asked how he supported the BNP when at College, he responded that he participated in meetings and rallies and spoke to other students about joining the BNP. He was initially an ordinary member and in [year] became the [Official 1]. When asked about the duties of the [Official 1], he responded that he acted on behalf of the Secretary. He organised meetings with the other members of the College Committee and organised rallies. He organised meetings to welcome newcomers to the College to get them to join the BNP. He organised rallies to celebrate different events like Independence Day or other important national days.

3. The applicant gave evidence that he continued his interest in politics after he went to University. While a University student, he was appointed [Official 2] of the University Committee of the national Chatradal. When asked about the duties of the [Official 2], he responded that he used to work under the directions of the President. They had [number range] [Official 2s] on the University Committee. They coordinated with other University Committees of the Chatradal. They used to organise meetings and rallies to celebrate national events and days. When the Tribunal asked whether the duties were the same as the Secretary, he responded that there were added responsibilities such as contacting other University Committees.

4. The applicant gave evidence that after he completed University in 2011, he returned to his hometown in [District 1] and joined the main body of the BNP. He continued with BNP activities. He was an Executive Member between 2012 and 2015 and in 2015 he was the [Official 3] for the BNP. When asked how the role of an Executive Member differed from the roles of the [Official 1] and [Official 2] (he previously held), he responded that it was the same sort of activities. He had to organise some meetings.

5. The applicant gave evidence to the Tribunal that he lived in Dhaka whilst undertaking a [degree] at University between January 2006 and November 2011. He then obtained employment in [Occupation 1] which was related to his degree. He commenced this employment at [District 1] in 2012 and continued working until 2015. However, in his application for a Protection visa, which he said was accurate, he stated that he lived in Dhaka from January 2006 (when he commenced University) until October 2015 (when he left Bangladesh to travel to Australia).

6. If the applicant lived in Dhaka after he completed University in 2011 until he left Bangladesh in 2015, it is implausible that he would have been working in [District 1] which is [number] km driving distance away.[1] It is also implausible that he would have joined the [District 1] branch of the BNP in 2012, been an Executive Member and subsequently a [Official 3] whilst living in Dhaka.

   [1] [Details deleted.]

7. The Tribunal asked the applicant what he had to do to become a member of the (main body) of the BNP, [District 1] branch. He responded that he had to submit a membership form. When asked whether he had to pay a fee, he responded that he had to pay a “subscription fee” on a monthly basis. Every member had to pay an amount. When asked the amount of the subscription fee, he responded that it depends on the ability of the member. Sometimes it is 500 taka and sometimes it is 2000 taka. This evidence is not consistent with the Constitution of the BNP which indicates that there is a fixed subscription fee of 5 taka for primary membership and an annual subscription fee of 5 taka.[2]  This raises issues in relation to whether he was a member of the BNP let alone an office holder.

   [2] Constitution of the BNP. (Constitution of BNP (shujan.org))

8. The Tribunal asked the applicant some questions in relation to his knowledge of the BNP. He was able to correctly answer that a person had to be over 18 years to join [a specified BNP section] but was unable to correctly answer when the BNP was founded. When asked about the aims and objectives of the BNP, he appeared to be reading from a document. When asked what document he reading from, he denied doing so. When asked the policy differences between the BNP and the AL, he responded that the BNP wants to establish Islam and the AL wants to establish secularism. When asked what political parties the BNP had formed coalitions with, he responded at least twenty parties but was only able to name one of them being the Jamaat-E-Islami party.

9. The applicant’s knowledge of the BNP is not consistent with his claims that he has been a long term member and office holder in the BNP and has continued his involvement with the BNP since coming to Australia.

10. The applicant has not provided the Department or the Tribunal with any independent evidence from Bangladesh in relation to him being a member and office holder in the BNP Chatradal (Student wing) when he was at College and University in Bangladesh or being a member and office holder in the main body of the BNP [District 1] branch between 2012 and 2015. He has provided the Department with a letter dated [in] February 2017 from [Leader A], [Official 4] of [Group 1]. It stated that he was a BNP activist in the Chatradal (Student wing), [in District 1], Bangladesh. After coming to Australia, he has been actively involved in activities under his leadership. He has regularly attended meetings and other activities arranged by the organisation.

11. [Leader A] did not participate in the hearing so the Tribunal was unable to ascertain the source of his knowledge that the applicant was involved with the BNP in Bangladesh. His letter refers to the applicant being involved with the Chatradal in [District 1] but makes no mention of him being involved with the Chatradal in Dhaka where he attended University from 2006 and 2011. The applicant’s evidence is that his involvement with the Chatradal in [District 1] was when he attended College which he completed in [year]. The Tribunal is of the view that the above evidence from [Leader A] is unreliable and places little weight on his evidence.

12. The above issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

13. Second, in his Statement of Claims, the applicant claimed that during the 2008 election he worked for the BNP candidate, [Candidate A], who was defeated by his Awami League (AL) opponent, [Candidate B]. During the hearing, the Tribunal asked him numerous questions about his BNP related activities. He made no mention of working for the BNP candidate, [Candidate A], or anyone else during the 2008 election. Towards the end of the hearing he was again asked whether he was involved in any other BNP related activities he had not told the Tribunal about. He responded no. He had told the Tribunal everything.

14. The Tribunal is of the view that working in an election campaign is not something that the applicant would have forgotten if it had in fact happened. His failure to mention this claim raises issues in relation to his credibility and the veracity of this claim.

15. Third, in his Statement of Claims, the applicant claimed that [in] January 2009, when he was returning home from University, he was attacked by AL cadres at [Location 1] and was beaten by them. He claimed that a RAB Police car passed through the area and when his attackers saw the car, they fled leaving him unconscious on the road. He claimed that people on the road got him to a local clinic where he was treated for four days. During the hearing, the Tribunal discussed these claims with him. He gave a different version of events. He stated that he was attacked at [Location 1 variant] in Dhaka by “terrorists of the AL” when returning home. When asked how he knew they were associated with the AL, he responded that the country was in a bad situation at the time and no one, other than the AL, would have dared to attack. They became ferocious after the election and attacked the BNP.

16. The Tribunal asked the applicant why his attackers would have attacked him. He responded that he was at University and involved with the BNP. They asked him not to join politics at University and asked him why he was involved with the BNP. They threatened him and beat him causing injuries to his hand and leg. (He made no mention of being left unconscious). The RAB Police took him to a hospital in Dhaka. He was admitted to hospital and received treatment for four days.

17. The applicant stated that he reported this incident to the Police but they did not take the necessary actions. They did not believe him and thought his attackers were local youth who wanted to steal money from him. When they were unable to get money from him, they beat him. When asked if there was any reason why he had not made these new claims previously, he responded that maybe he forgot to mention this.

18. These inconsistencies between the applicant’s written and oral evidence in relation to whether or not he was rendered unconscious during the attack, whether he was taken to a local clinic or a hospital and whether it was passers-by or the RAB Police that took him to the local clinic or hospital raise issues in relation to his credibility and the veracity of these claims. Further, his failure to mention in his Statement of Claims that he had reported this incident to the Police and the response of the Police exacerbate these concerns. 

19. The Tribunal raised as issues with the applicant the inconsistencies in his evidence, the new claims he made during the hearing, his failure to mention working on the 2008 election campaign, his credibility and the veracity of his claims. He responded that he told the Tribunal about all the activities he was involved in. Maybe he made a mistake. These things were written in his visa application. The Tribunal does not accept this explanation for the reasons given herein. His response does not alleviate the Tribunal’s concerns in relation to his credibility and the veracity of his claims.

20. Fourth, in his Statement of Claims, the applicant claimed that the AL won the 2014 election in a landslide victory and formed government. He claimed that, after the election, the AL government took revenge on the BNP and its allies. He claimed that on [a day in] January 2014 at 7pm he was attacked at [Location 2] by a group of AL “goons”. He claimed that they beat him, slapped him and ordered him to leave the city in front of a huge gathering. He claimed that he cried and his whole body was bloodied and swelling. He claimed that he was admitted to a local hospital and was discharged after 2 days.

21. During the hearing, the Tribunal discussed these claims with him. He gave evidence that he was returning home [in] January 2014 when he was attacked by four or five people. He was punched in the face and his nose and teeth were bleeding. He then stated that he was hit on his body and had injuries everywhere. He was admitted to hospital where he received treatment and was discharged 2 days later. He had to rest at home for 2 weeks. After this he did not feel safe in Bangladesh and looked for an opportunity to leave Bangladesh. He subsequently got a [temporary] visa and left. His mother instructed him to leave in 2015. When he got the opportunity, he left. He made no mention of being slapped and ordered to leave the city in front of a huge gathering.

22. The Tribunal asked the applicant whether he had reported this incident to the Police. He responded that if he had filed a case (complaint) with the Police they would not have taken any action. When asked whether his answer was no, he responded that after he recovered from his injuries, he went to the Police to lodge a complaint but they did not accept it. When asked whether there was any reason why he had not mentioned this previously, he responded that he had provided this information in his visa application. His migration agent, [named], confirmed that he had not provided any information in his Statement of Claims in relation to reporting incidents to the Police. He then stated that he probably forgot to mention this. When the Tribunal pointed out that it would think that this was something important that he would mention, he responded that he was sorry for the mistake.

23. The inconsistencies between the applicant’s written and oral evidence and his failure to mention reporting the assault on him in 2014 and the response of the Police in his Statement of Claims raises further issues about his credibility and the veracity of his claims.

24. It has been over 4 ½ years since the Department refused the applicant’s application for a Protection visa. The Department’s Decision Record indicates that the delegate had issues in relation to his credibility. His credibility and the veracity of his claims were also raised as issues during the Tribunal hearing. He was given further time after the hearing to provide additional evidence. He has had the benefit of being represented by a migration agent and having access to immigration advice throughout the application process. He has had ample time to obtain corroborating documents from Bangladesh, such as records from the local clinic and/or hospital where he claims to have received medical treatment following assaults on him in 2009 and 2014 and provide them to the Tribunal but has not done so.   

25. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

26. Fifth, in his Statement of Claims, the applicant claimed that in early 2015 he was elected as the [Official 3] of the District Committee of the BNP. He claimed that after obtaining this position he showed his responsibility to the party and to the people. He claimed that he thereafter became an “eyesore” to the AL leaders and activists. He claimed that, day by day, he became their “serious target” and the situation became unpredictable. He claimed that his mother suggested that he leave the country to “secure his life”. He claimed that he obtained a [temporary] visa for Australia and left Bangladesh [in] October 2015.

27. During the hearing, the Tribunal discussed these claims with the applicant. When asked about his duties as the [Official 3], he responded that it was his responsibility to organise [specified] activities in his village. In 2015, he organised [Event 1] in [District 1]. Most of the participants were BNP members/supporters. When asked whether he was involved in any other political activities he had not mentioned, he answered no.

28. The Tribunal finds it implausible that the applicant would have organised [Event 1] single handed. Even if the Tribunal accepts that he did, it is implausible that organising [such an event] for mostly BNP members/supporters would have made him an “eyesore” to the AL leaders and activists, made him their “serious target” and created an unpredictable situation for him.

29. Further, in his application for a Protection visa, which he told the Tribunal was accurate, he stated that he lived in Dhaka from January 2006 (when he commenced his University studies) until October 2015 (when he departed Bangladesh to travel to Australia). Dhaka is   [number] km driving distance away from [District 1].[3]  It is implausible that he would have joined the [District 1] branch of the BNP if he was living in Dhaka. It is also implausible that he would have been elected as the [Official 3] of the [District 1] branch of the BNP and organised [Event 1] in [District 1] if he was not living there and lived a considerable distance away.

    [3] [Details deleted.]

30. Therefore, the applicant’s claims that his activities as the [Official 3] of the [District 1] branch of the BNP made him an “eyesore” to the AL leaders and activists, made him their “serious target” and created an unpredictable situation for him are implausible.  

31. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

32. Sixth, if the applicant was an “eyesore” to the AL leaders and their “serious target” as claimed in his Statement of Claims, it is implausible that the AL government would have supported him to apply for [an extended temporary] visa for Australia. The records of the Department indicate that during his interview with the Department he stated that applying for the [temporary] visa in Bangladesh was a competitive process. He was interviewed by the Bangladesh Ministry of Home Affairs and selected to apply for the [temporary] visa to come to Australia. Only a limited number of applicants were selected by the Bangladeshi government. The Ministry of Home Affairs gave him a letter of support to provide with his application for a [temporary] visa.

33. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this was not consistent with his claims that he was targeted by the AL from 2014 and was considered to be a “serious threat” in 2015. The Tribunal noted that, in these circumstances, it was implausible that the AL government would have supported him to get a visa for Australia. The Tribunal noted that the AL government selected him despite his claims that he was a BNP member, held positions in the BNP and was being targeted by AL cadres. The Tribunal also noted that his conduct indicates that he did not have any concerns about approaching the AL government despite his claims that he was a “strong target”. The Tribunal raised issues in relation to his credibility and the veracity of his claims.

34. The applicant responded that he needed time to comment on or respond to this information. He requested and was granted 2 weeks to provide written comments or a response. At the end of the hearing, he stated that there was an agreement between the Australian government and the Bangladesh government (in relation to the [temporary] visas). There was no corruption in this process. The Australian government participated actively and was directly involved in every step of the process. That is why he was selected for the program. Otherwise he would not have been selected for the program.

35. The Tribunal expressed its doubts that the Australian government would have been involved in the interview and selection process (undertaken by the Ministry of Home Affairs in Bangladesh). He responded that there was probably some Embassy involvement in the interviews conducted by the Ministry of Home Affairs and (Australian) Embassy personnel may have observed how things were going. [Number] people were selected after the interviews and this information had to be shared with (the Australian) Embassy. When asked how he knows this, he responded that if there was corruption, he would not have been given the visa. He believes that the Australian Embassy was involved in the process and that is why he got the opportunity. When asked whether he was speculating, he responded “probably that is correct”.

36. Following the hearing, the Tribunal received written submissions dated 25 September 2021 from the applicant’s migration agent. In his submissions, he stated that the applicant applied for the [temporary] visa on the Home Ministry website in April 2014. It was a long process and took 10 months to finalise his application. The [temporary] visa was approved by the Home Ministry of Bangladesh subject to the approval of the Department through the Australian Embassy. There was no chance of corruption in the visa processing and the applicant obtained the visa without discrimination. “There was no relation about the past of the applicant in obtaining this visa”. There was no issue for the visa giver whether the applicant was targeted by the AL. There were no outstanding cases against the applicant which prevented him from leaving the country. He obtained the visa on merit and fulfilled the requirements for the visa.  

1. These submissions do not address the issues raised with the applicant. The Tribunal accepts that there was no corruption on the part of the Department in processing the applicant’s visa application and that he obtained the visa without discrimination. The Tribunal accepts that the applicant’s political affiliations or history were not a relevant consideration for the Department when assessing his visa application and, as he was able to fulfil the requirements for the visa, it was granted to him “on merit”.

2. The fact that the applicant responded to a notice on the website of the Bangladesh Ministry of Home Affairs, expressed his interest in applying for the [temporary] visa to them, attended an interview conducted by the Bangladesh Ministry of Home Affairs, was selected by them to apply for the visa and was then given a letter of support to attach to his application for a [temporary] visa, tends to indicate that this first stage of the process was undertaken by the Bangladeshi government, independent of the Australian government. It is highly unlikely that the Australian government would have involved the Bangladeshi government in the second stage of the process which was assessing the application for the [temporary] visa. This second stage of the process would have been undertaken by the Department independent of the Bangladeshi government.

3. The Tribunal does not accept that the Australian Embassy was directly involved and actively participated in every step of the process at the first stage. The Tribunal is of the view that the applicant’s ability to be selected in the first stage of the process and obtain a letter of support from the Bangladeshi (AL) government to assist him with his application for the [temporary] visa is not consistent with his claims.

4. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

5. Seventh, in his Statement of Claims, the applicant claimed that because of the work he did for the BNP he became an “eyesore” to the AL leaders and activists, became their “serious target” and the situation became unpredictable for him. He claimed that his mother suggested that he leave the country to “secure his life”. He claimed that he obtained a [temporary] visa for Australia and left Bangladesh [in] October 2015. During the hearing, he gave evidence that after he was assaulted in 2014, he did not feel safe in Bangladesh and looked for an opportunity to leave Bangladesh. He decided to leave Bangladesh and come to Australia because his life was not safe in Bangladesh.

6. The applicant provided the Department with a letter dated [in] February 2017 from [Leader A], [Official 4], [Group 1]. In his letter, he stated that the applicant told him that his life was in danger in Bangladesh because of his involvement in political activities. He left Bangladesh to avoid the “high chance” of being killed or being abducted and tortured by the current ruling party. His life is in real danger in Bangladesh.

7. The applicant’s conduct in Bangladesh is not consistent with his written claims or the above letter. The records of the Department indicate that he was granted a [temporary] visa [in] June 2015. However, he did not arrive in Australia until [October] 2015. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in arriving in Australia after he was granted the [temporary] visa is not consistent with his claims and raises concerns in relation to his credibility and the veracity of his claims.

8. The applicant responded that he needed more time to respond in writing. He was given further time after the hearing to provide additional evidence. Following the hearing, the Tribunal received a Statutory Declaration from him dated 26 September 2021. He did not address this issue in his Statutory Declaration. The Tribunal also received written submissions dated 25 September 2021 from his migration agent. He did not address this issue in his submissions.

9. The applicant’s delay of over 4 months to depart Bangladesh after he was granted an Australian visa is not consistent with his claims that he left Bangladesh because his life was in danger there. This issue raises concerns in relation to his credibility and the veracity of his claims.

10. Eighth, the applicant’s conduct in Australia is also not consistent with his claims. The records of the Department indicate that he arrived in Australia [in] October 2015 on a [temporary] visa that was valid until [October] 2016. He lodged an application for a Protection visa on 14 October 2016. The Tribunal put this information to him, pursuant to s.424AA of the Act, noted that [the visa he arrived on] is a temporary visa and would expect that if his life was at risk in Bangladesh he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia.

11. The Tribunal noted his evidence that he did not seek immigration advice until October 2016 and his delay until 14 October 2016 to apply for protection raised concerns in relation to his credibility and the veracity of his claims. The Tribunal noted that it may find that he applied for a Protection visa to extend his stay in Australia and not because he is in need of protection.

12. The applicant responded that there was no reason. He did not have an idea (intention) to apply for protection and that is why he waited. He got an idea that he could submit his visa application before his visa expired. He only knew he could submit an application for a Protection visa before his ([temporary]) visa expired. When the Tribunal noted that that was because he did not seek immigration advice until a year after his arrival in Australia. He responded that he took that time. He did not know he had to submit his claims as soon as he arrived in Australia.

13. Following the hearing, the Tribunal received written submissions dated 25 September 2021 from his migration agent. In his submissions, he stated that when the applicant came to Australia, he visited some beautiful places and complied with his visa conditions. He thought that, when the situation in Bangladesh “would be normal”, he would return to Bangladesh before his visa expired. The situation in Bangladesh became worse and he did not know the immigration laws in Australia. He did not consult a migration agent or lawyer. The situation became worse just before his visa was about to expire. Leaders and activists in the BNP were being persecuted and he had no choice but to lodge an application for a Protection visa.  Since arriving in Australia he has participated in BNP Australia, maintained his connection with the party and raised his voice against persecution and this is an “issue of persecution” against him. 

14. These submissions fail to address the issues raised with the applicant. His claims are that he is a target of AL leaders, he was attacked in 2009 and 2014, he came to Australia in 2015 because his life was at risk in Bangladesh and he will be persecuted if he returns to Bangladesh. He came to Australia on a temporary visa that was valid for [an extended period]. He was required to depart Australia before that visa expired. His claims for protection are based on incidents that happened when he was in Bangladesh and the circumstances at the time he departed Bangladesh. These circumstances existed at the time of his arrival in Australia in October 2015. 

15. The AL has been in power in Bangladesh since 2008, won the Parliamentary Election in 2014 in a landslide victory and the next Parliamentary Election was not due until 2018. In these circumstances, the submission that the applicant was waiting for the situation in Bangladesh to return to “normal” so he could return to Bangladesh before his visa expired is nonsensical. Further, if the reason for the delay in applying for protection was because the applicant was motivated to apply for a Protection visa only after there was a worsening of  circumstances in Bangladesh for BNP leaders and activists after he came to Australia as submitted, the Tribunal would expect him to have mentioned this in his Statement of Claims but he did not do so.  

16. The Tribunal does not accept that the reason for the applicant’s delay in applying for a Protection visa was because the political situation in Bangladesh worsened just before his [temporary] visa was due to expire. These submissions do not alleviate the Tribunal’s concerns.

17. The applicant’s delay in applying for a Protection visa raises concerns in relation to his credibility and the veracity of his claims.

18. Ninth, in his Statement of Claims, the applicant claimed that after his arrival in Australia [in] October 2015 he joined BNP Australia. He claimed that, in due course, he became one of the members of the organisation. He claimed that if he returns to Bangladesh he will be persecuted. He claimed that his life will not be saved or protected in Bangladesh.

19. The applicant provided the Department with a letter dated [in] February 2017 from [Leader A], [Official 4] of the [Group 1]. In his letter, [Leader A] stated that the applicant had been actively involved in the activities of this organisation since his arrival in Australia. He regularly attended meetings and activities arranged by this organisation. He did not indicate what date he became involved with this organisation or what activities he was involved in. [Leader A] did not participate in the hearing.

20. The applicant also provided the Department with two photographs of the applicant with a group of people. Handwritten notes state that those people are leaders of BNP Australia.

21. During the hearing, the applicant gave evidence that he joined BNP Australia in 2016. This is not consistent with [Leader A’s] evidence that he had been actively involved in the activities of this organisation since his arrival in Australia (in 2015). When asked what activities he has been involved in with this organisation, he responded that he attended political programs organised by the BNP. He observed the programs held on [two specified annual events]. He also took part in the observation of Ziaur Rahman’s death anniversary. In 2018, when the Prime Minister Sheik Hasina visited Australia, he took part in a rally at [Location 3]. In the last 2 years he has participated in virtual activities via Zoom because of the Covid 19 pandemic.

22. The applicant provided the Tribunal with four photographs. During the hearing, he gave evidence that they depicted him participating in BNP activities. He has other photographs on his telephone but cannot provide them to the Tribunal because of issues with his telephone. When asked about the photographs, he stated that one photograph was in relation to observing Independence Day, another was in relation to observing the leader’s death anniversary and one was in relation to him participating in a protest at [Location 4] in 2017 against the visit of an AL government Minister. The fourth photograph appeared to be [another specified] celebration he referred to.  

23. The applicant stated that there were photographs in some newspapers. He also collected photographs from Facebook. He did not provide any photographs of him participating in the protest against the Prime Minister at [Location 3] in 2018. Other than for the photograph taken at [Location 4] which appears to have been taken in 2017, there is no indication as to when the other photographs were taken. There is no independent evidence before the Tribunal that the applicant has participated in any BNP related activities since 2017. The Tribunal accepts that he could not participate in any BNP related activities in person in 2020 and 2021 due to the Covid 19 pandemic.

24. The applicant arrived in Australia [in] October 2015. He lodged his application for a Protection visa on 14 October 2016. He joined BNP Australia in 2016. The Tribunal has concerns in relation to his motivation for joining BNP Australia and that it was for the purpose of strengthening his claims to be a refugee. The Tribunal explained the provisions of s.5J(6) of the Act to him and raised this as an issue with him. He responded that this was not true. He supported the BNP and continued to support the BNP with his friends. He participated continuously. In the last 1 ½ years he could not attend in person and programs were held virtually. This is why he could not provide evidence of participating in BNP activities in person.

25. The applicant’s response does not alleviate the Tribunal’s concerns. However, based on the photographic evidence, the Tribunal is persuaded that he may have also participated in activities organised by BNP Australia for the social aspects and interactions with his countrymen and women.

26. Tenth, in his Statement of Claims, the applicant did not make any claims that he feared persecution in Bangladesh because of his BNP related activities in Australia. He filed with the Tribunal a written statement dated 10 April 2017, a Statutory Declaration dated 7 September 2021 and a Statutory Declaration dated 26 September 2021. He made no new claims in any of these documents in relation to fearing persecution in Bangladesh because of his BNP related activities in Australia. He has had the benefit of being represented by a migration agent throughout the process of his application for a Protection visa.

100.   During the hearing, the applicant referred to obtaining copies of photographs from Facebook and to there being articles with photographs in newspapers. He did not claim that he was in any of the photographs in newspapers. He did not claim to be in any leadership position in BNP Australia or to fear harm because of his activities in Australia despite being given many opportunities to do so. In written submissions to the Tribunal, his migration agent submitted that his activities in Australia create a real chance of serious harm if he is returned to Bangladesh. The Tribunal has considered this to be a claim lodged on behalf of the applicant.

101.   The Tribunal gave the applicant further time after the hearing to provide additional evidence. However, he did not provide any evidence from Facebook or from newspapers or from the internet referring to him or containing his photograph. Three of the photographs he provided the Tribunal depict groups of people in a room posing in front of banners. They are consistent with his evidence that he attended functions celebrating [specified annual events] and observing the leader’s death anniversary. The fourth photograph depicts a group of people standing on the side of the street holding banners. It was taken at night from a distance in poor lighting. It is difficult to see the features of the people in the photograph let alone identify them. This photograph is consistent with his evidence that he attended a protest at [Location 4].

102.   The applicant has also provided the Department with two photographs of him with a group of people. Handwritten notes with the photographs indicate that they are leaders in BNP Australia. He has not claimed that any of these photographs were published. The Tribunal is not satisfied that leaders, members or supporters of the AL are aware of the applicant’s BNP related activities in Australia or that he is at risk of persecution for this reason.

103.   Eleventh, during the hearing, the Tribunal asked the applicant whether any of his family members in Bangladesh had any problems with the AL. He responded, “not much”. He then stated that they had some issues with the AL but had to “maintain and carry on”. When asked about these issues, he responded that his family own land and businesses. AL activists try “to grab” some land. They have to pay them toll money on a monthly basis or they will “grab the land”. When asked whether there was any reason why he had not mentioned this until the hearing, he responded that he forgot to mention these things. Some incidents took place very recently so he could not mention it in his application for a Protection visa. When the Tribunal noted that he had filed a Statutory Declaration with the Tribunal a week before the hearing and could have mentioned it then, he responded that he made a mistake.

104.   The Tribunal does not find this evidence from the applicant to be convincing. His evidence to the Department was that his [brothers] had no problems. His initial evidence to the Tribunal was that his [brothers] did not have much problems with the AL. He then changed his evidence to claim that AL activists were extorting money from them. His evidence that this extortion only happened recently is also unconvincing considering that the AL has been in government since the 2008 Parliamentary Election. Even if the extortion started more recently, he filed with the Tribunal a Statutory Declaration dated 7 September 2021 which was a week prior to the hearing. The Tribunal would expect that he would have wanted all his claims to be before the Tribunal prior to the hearing. The Tribunal would also expect that his migration agent would have complied with the Tribunal’s Practice Directions in relation to hearings.

105.   The Tribunal does not accept that AL activists have recently started extorting money from the applicant’s [brothers]. This new claim raises concerns in relation to his credibility and the veracity of his claims.

106.   The applicant provided the Department and the Tribunal with country information on Bangladesh. The country information provided to the Department dates back to 2010 in relation to the leader of the BNP being evicted from her house, people being killed in political violence in Bangladesh in 2013 as a result of clashes between security forces and opposition protesters, a statement from the US State Department on the 2014 Parliamentary Election in Bangladesh and most of the seats not being contested by the Opposition parties, a blog in relation to violence, including deaths, arrests and cases being filed against leaders and activists in the twenty Opposition parties in the aftermath of the Parliamentary Election in 2014 and a newspaper article on the uncontested Parliamentary Election in 2014 and the impact of this on democracy in Bangladesh.

107.   The applicant provided the Tribunal with country information including articles about attacks on the freedom of the press, freedom of expression, misuse of The Digital Security Act 2018 and an article about Mr Shoebridge, Greens leader, introducing a motion in the NSW State Parliament calling on the federal government to take steps to support democracy and human rights in Bangladesh. The Tribunal accepts that the country information indicates that the failure of the BNP and other opposition parties to contest the Parliamentary Elections in Bangladesh in 2014 resulted in there being no effective Opposition in Parliament and a deterioration in democratic processes. The country information also indicates that The Digital Security Act 2018 has been misused in some cases leading to a decline in certain human rights in Bangladesh.

108.   The Tribunal has had regard to the applicant’s migration agent’s submissions to the Department and the Tribunal. In view of the many problems in the applicant’s evidence and the concerns in relation to the credibility of his claims, the Tribunal is not persuaded by these submissions.

Other considerations

109.   The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

Findings

110.   Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated some of his material claims for the purpose of obtaining a Protection visa.

111.   The Tribunal accepts that the applicant was born on [date] [in District 1] in Bangladesh. The Tribunal accepts that he has [specified family members]. The Tribunal accepts that his father passed away in 2009. The Tribunal accepts that his mother and siblings live in [District 1]. The Tribunal accepts that his [brothers] run the businesses previously owned by their father. The Tribunal accepts that he attended College in [District 1] between [specified years]. The Tribunal accepts that he attended University at Dhaka between January 2006 and November 2011 and completed [Degree 1].

112.   The Tribunal accepts that the applicant obtained employment in the field of [Occupation 1] and was employed between 2012 and 2015. The Tribunal does not accept that he did this job at [District 1]. The Tribunal accepts that he lived in Dhaka from January 2006 to October 2015. The Tribunal accepts that he responded to a notice on the website of the Bangladesh Ministry of Home Affairs in 2014 to apply for an opportunity to be considered for a [temporary] visa for Australia. The Tribunal accepts that he attended an interview conducted by the Bangladesh Ministry of Home Affairs and was chosen to apply for the [temporary] visa. The Tribunal accepts that the Bangladesh Ministry of Home Affairs provided him with a letter of support to assist him with his application to the Department for a [temporary] visa.

113.   The Tribunal accepts that the applicant’s father was a BNP supporter and provided donations to the BNP prior to his death in 2009. The Tribunal accepts that his [brothers] are also BNP supporters, were involved in student politics whilst at University and have not been involved in politics since leaving University. The Tribunal accepts that his family have not had any problems. The Tribunal does not accept that the AL has recently started extorting money from his [brothers]. The Tribunal does not accept that they have had any problems with AL leaders, members or supporters because they are BNP supporters. The Tribunal has considered whether the applicant would be at risk of serious harm or significant harm because his father was a BNP supporter and/or his [brothers] are BNP supporters. The Tribunal is not satisfied that he would be at risk of serious harm or significant harm for any of these reasons. 

114.   The Tribunal accepts that the applicant also became a BNP supporter as his father and [brothers] were BNP supporters. The Tribunal accepts that when he was at College, he became interested in student politics. The Tribunal does not accept that he became a member of the Chatradal (Student wing of the BNP) in [District 1] and was subsequently appointed [an Official 1]. The Tribunal accepts that when he was at University in Dhaka, he again became involved in student politics. The Tribunal does not accept that he joined the Chatradal and was subsequently appointed [an Official 2] of the University Committee. The Tribunal does not accept that he worked for a BNP candidate in 2008.

115.   The Tribunal does not accept that [in] January 2009, when he was returning home from University, the applicant was attacked by AL members or supporters and was injured. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he joined the [District 1] branch of the BNP after completing his degree in 2011. It follows that the Tribunal does not accept any of his claims that flow from that including that he was appointed [Official 3] and was attacked and injured by AL members or supporters [in] January 2014. The Tribunal does not accept that he continued his involvement in politics or was involved in BNP politics after he left University in 2011.

116.   The Tribunal does not accept that the applicant left Bangladesh because his life was at risk. The Tribunal does not accept any of the reasons given by him or his migration agent for his delay in applying for a Protection visa. The Tribunal is of the view that he applied for a Protection visa because he wanted to extend his stay in Australia. The Tribunal accepts that he joined BNP Australia in 2016. The Tribunal accepts that he has attended activities organised by BNP Australia such as a celebration of [specified annual events] and a commemoration of the death anniversary of Ziaur Rahman. The Tribunal accepts that he attended a protest at [Location 4] in 2017 to protest against the visit of a Bangladeshi Minister. The Tribunal is not satisfied, on the evidence before it, that he continued his involvement with BNP Australia after 2017. The Tribunal finds that he does not hold a leadership role in BNP Australia.

117.   On the evidence before it, the Tribunal is not satisfied that the applicant has been involved in any other political activism, including on social media, whilst in Australia. The Tribunal is not satisfied that AL leaders, members or supporters are aware of his involvement with BNP Australia or have any interest in him. The Tribunal does not accept that he was or is of adverse interest to AL leaders, members or supporters or the Bangladeshi authorities.

118.   The Tribunal has considered whether the applicant would get involved in BNP politics or have any desire to do so if he returns to Bangladesh now or in the foreseeable future. On the evidence before it, the Tribunal is not satisfied that he will.

119.   In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future. 

Does Australia have protection obligations to the applicant under the refugee criterion?

120.   Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his actual or implied political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary      protection criterion?

121.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

122.   Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.    

123.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

CONCLUSION

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

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

DECISION

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

L. Symons

Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…