1709359 (Refugee)

1709359 (Refugee) [2022] AATA 2236 (16 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1709359/1923732
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:16 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 May 2022 at 2:23pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Jamaat e Islami (JI) party member or supporter – credibility concerns – inconsistent and contradictory evidence – memory difficulties – similarly worded letters of support – delay in applying for protection – perceived to be wealthy returnees from a Western country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 13 April 2017 and 2 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bangladesh applied for the visas on 9 January 2017 and 2 June 2017 respectively. The applicants were refused the visas on the basis that there is not a real chance or real risk that they would suffer serious or significant harm on return to Bangladesh on the basis of their affiliation with the political party Jamaat-e-Islami.
The first named applicant appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The second named applicant appeared before the Tribunal on 5 May 2022 to give evidence and present arguments. On 5 May 2022 the first named applicant was also present. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Bangladesh for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial ground for believing that as a necessary and foreseeable consequence of them being removed from Australia to Bangladesh there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Summary of claims
The first named applicant
A statement made by the first named applicant at the time of application includes the following information and claims:
He was born in Dhaka, Bangladesh. His two children (secondary applicants) were both born in Sydney, Australia.
He is afraid to return to Bangladesh because of his political opinion as a Jamaat e Islami (JI) party activist.
From the time of his birth his parents were involved with JI. By the time he reached college age, his father had become a [office bearer] for JI at [Neighbourhood 1], Dhaka and his mother became [specified rank] of the women’s wing of JI at [Neighbourhood 1]. As a [office bearer] his father was responsible for organising JI meetings, promoting their ideology by travelling to various areas and acting as the administrative contact between local political members and district level members.
In December 2008 the Awami League (AL) won the parliamentary election and the party is a rival of the Bangladesh National Party (BNP) and JI. In April 2009 he visited Bangladesh and at that time his parents advised him to stay at home because he had been a JI member and activist and a family member of JI activists and therefore vulnerable to revenge attacks by the AL. His parents forced him to return and settle in Australia. During the four weeks he stayed in Bangladesh the AL supporters searched for him to harm him though they did not find him. Since then he has not dared to return to Bangladesh.
By around 2011 tensions between the AL and JI intensified and JI was considered a party of religious extremists. This fostered a national animosity against JI supporters. However, his father and mother did not cease their involvement with JI. This caused great problems for his family. They were labelled as “Rajakar” (Bengali’s who assisted the Pakistan army during the Liberation War in 1971). They were seen as traitors and barred from purchasing or selling goods. They were also threatened with harm.
At this time the AL supporters attempted a method of extortion to coerce his father, mother and brothers to cease their support for JI. They would come to their home and demand rent for residing in AL dominated country. Though they did not physically harm his family they were aware they could operate with impunity as the police and other authorities supported them or overlooked their activities. They mentally tortured his younger brother and he cannot go to university anymore.
In 2013 a large crowd of AL supporters came to his parent’s home one night. His younger brother managed to run away but they kidnapped his older brother and demanded a huge ransom. His father said it was against his religious conviction to do so.
His parents tried to report the kidnapping to the police but they refused to help. Despite this incident his father refused to change his political ideology and continued to support JI whilst in hiding. His younger brother also went into hiding .
A few months later one of the kidnappers of his elder brother was killed. Straight after that a group of AL men came to their home. At the time his parents were not at home and they damaged all their equipment and threatened the caretaker to tell his father “your older son is with us now and he will see what we do…How long will you hide your younger son and the other one in Australia”. His father went to the police but they refused to make a report.
In 2014 his older brother managed to escape from the kidnappers. His parents found him very sick after being tortured physically and mentally and took him to the hospital. He is still recovering at a rehabilitation centre. His younger brother still cannot return home and therefore cannot finish his studies because he is trying to survive in another country. The AL supporters still come to their home and ask about him and his brothers and demand money.
Over the following few months AL supporters came to his family home on several occasions searching for his father, his brothers and other family members (including him). By this time all his brothers were targets and his parents are practically under house arrest.
In May 2015 AL supporters came again to his family home and said they had given ample time for his father to change his ideology. They said that if his father did not denounce JI in public they would hunt him down and kill his sons, and him, if he went back. By killing the male family members the AL supporters indicated that their family bloodline would be extinguished.
Around this time he came into contact with people who advised that he should not return to Bangladesh and considering his circumstances he could submit an application for protection in Australia.
He fears that if he returns to Bangladesh he and his wife will be beaten, abused and/or killed by AL authorities and their supporters. He also fears his daughter and son will be kidnapped and abused. He also considers he will likely fact false criminal charges. The reason for the harm will be his real or imputed political opinion and/or because he is a family member of JI supporters.
He also fears his children will be deprived of basic facilities required by any Australian born children.
The authorities in Bangladesh are ineffective, corrupt and generally unable to provide state protection to its citizens. Furthermore, the authorities are associated with the incumbent AL government and JI families are seen as social and political outcasts.
Attached to the application is what appears to be an excerpt from a submission made in another matter outlining links to various country information reports and summarising points from various news articles and reports about human rights abuses and mistreatment of BNP supporters in Bangladesh.
Also attached are various letters of support attesting to the good character of the primary applicant as well a letter from [Dr A] dated 30 March 2017 which indicates the primary applicant has been suffering from stress which could affect his ability to concentrate and recall clearly.
Second named applicant
According to information contained in her application for a protection visa, the applicant is a [age]-year-old citizen of Bangladesh. She was born in Barisal, Bangladesh. Before coming to Australia, she resided in Barisal between [year] and 1993, Dhaka between 1994 and 2004, Barisal between 2004 and 2005 and Dhaka between 2005 and 2009. She completed high school in Bangladesh and obtained [Qualification 1] and [Qualification 2] in Bangladesh. Her husband, daughter and son reside with her in Australia, her uncle in law resides in Australia, whilst her mother, father, biological brother and biological sister reside in Bangladesh.
The applicant arrived in Australia in September 2009 as a holder of a Partner (Provisional) (UF-309) visa granted until March 2012. In March 2012 she was granted a partner (BC 100) visa and in November 2012 the same visa was cancelled under s140 as a consequential cancellation. In December 2013 the applicant applied for review at the MRT. In [2014] the MRT ruled no jurisdiction on the case. In March 2014 the applicant applied to the Federal Court and the case was remitted back to the MRT in September 2014. In April 2015 the Tribunal affirmed the cancellation. In April 2015 the applicant appealed to the Federal Court and the decision was affirmed in September 2016. In October 2016 the applicant appealed to the Full Federal Court and in February 2017 the decision was affirmed. In March 2017 the case was appealed to the High Court and in May 2017 the decision was affirmed. The applicant applied for a protection visa in February 2017. On 2 August 2019 the delegate refused her protection visa application.
The applicant made the following claims on the statement attached to her visa application form:
The applicant states that her parents were involved with Jamaat-e-Islami (JI). The applicant married [the first-named applicant] in November 2005. The applicant became aware, following marriage, that her father-in-law was a [office bearer] for JI at [Neighbourhood 1], Dhaka and her mother-in-law was [specified rank in] its women’s wing in the same location. The applicant became aware after marriage that her husband was a JI activist. The applicant resided with her parents in law whilst in Bangladesh. Her father-in-law was responsible for organising JI meetings, and promoting their ideology in a travelling capacity, and acting as an administrative contact between constituent branches. The applicant assisted her mother-in-law to organise meetings for JI and collected donations from supporters and activists. As a JI activist herself, the applicant gave lectures.
In December 2008 the rival Awami League (AL) won the Bangladesh parliamentary elections by capturing two thirds of the vote, over rival Bangladesh Nationalist Party and the JI alliance. The applicant’s husband visited Bangladesh in April 2009 and was advised by the applicant’s father-in-law to return to Australia immediately, as he was a reputed member of the party and thus a target for the AL’s ‘revenge strategy’. The applicant states that during this post-election period she was targeted and questioned in public by AL supporters who asked after her husband. She stated that they abused her, tried taking off her head covering and threw rubbish, rotten eggs and stones at her. She states that she stopped going out in public and has not returned to Bangladesh after leaving for Australia out of fear for her safety.
The applicant states that by 2011 the AL had claimed that JI were harbouring former religious extremist war criminals during the 1971 Liberation War. She states that this created a national animosity toward JI supporters. She states that her parents remained loyal to the party out of religious duty and the AL began to label supporters the “JI family” and “Rajakar”. The applicant states that they could not purchase goods, sell goods and that they received threats of violence.
The applicant claimed that during this period the AL supporters demanded “chada” (rent) from her parents in law for residing in an AL dominated country. She claims they were not harmed, but that the AL were supported or tacitly ignored by law enforcement. The applicant claimed her brother-in-law could not finish his studies due to AL harassment.
The applicant claimed that in September 2013 her older brother-in-law was kidnapped by the AL and that an extortionate ransom was demanded. She states that the AL wanted all family members to stop promoting JI in the area, however the father-in-law said it was against his religious convictions to do so. The applicant claimed that local police refused to investigate citing lack of administrative resources, a reason that the applicant did not accept. She stated that her father-in-law indicated he would die for his religious beliefs and encouraged his sons to go into hiding, as he believed the AL were targeting able bodied males for harm. The applicant attempted contacting her brothers in law, without success, and was urged by her father-in-law to leave the country. She states that his house was targeted by the AL and they destroyed its contents.
The applicant claimed that a few months later one of her brother’s kidnappers was killed and AL came to the family home and threatened the lives of the captive son and the younger brother-in-law, to the attendant caretaker. She claims that an attempt to report this was rebuffed by local law enforcement. She claims that the older brother-in-law escaped and was found in a state of physical and mental debility, requiring hospitalisation and rehabilitation. She claims that the younger brother-in-law is still overseas, will not return home and cannot complete his studies. The applicant claims that her in laws are visited by AL and extorted for money, and that law enforcement does not assist the family. She claims that the family is ‘practically under house arrest’.
The applicant claims that in 2015 AL supporters visited her in laws and issued an ultimatum to convert their political ideology, under threats of death for all male family members. She claims that in 2017 AL member appeared at the residence again and demanded to know where her brothers in law were located, then ransacked the residence for remaining valuables. The applicant claims that the AL froze the bank accounts of her in law family members that they live off the charity of their neighbours. She claims that she has been advised by ‘people’ not to return to Bangladesh and to seek protection in Australia.
The applicant fears that she, her husband and her children will be beaten, abused or killed, and fears being harmed by AL and their supporters. The applicant fears being arrested, denied access to a fair trial, jailed and sentenced to death. She also fears her children will be kidnapped or killed and she is likely to face false criminal charges.
The applicant fears harm for the reason of her real and imputed political opinion and because of her familial association with the members of JI. Family members of JI supporters are targeted by AL supporters in order to compel the JI members to denounce their ideology.
The applicant also fears her children will be deprived of basic facilities required by any Australian born kids.
The applicant claims that the authorities in Bangladesh are ineffective, corrupt and generally unable to provide state protection to its citizens. Furthermore, the authorities are associated with the incumbent government whereas members of families associated with JI are seen as social and political outcasts and their human rights are not protected.
Documentation provided to the Tribunal
On 1 May 2017 the first named applicant wrote to Tribunal and made the following submissions:
He was born into a politically oriented middle-class family in Bangladesh. His parents have been politicians of JI.
Because of his political beliefs he was persecuted in Bangladesh. He is a JI activist, made donations to the party and took part in some large meetings and many demonstrations against the AL in Bangladesh.

Since his arrival in Australia his father told him that the police have come to his house asking for his whereabouts. If he returns there is every possibility he will be tortured and treated inhumanely, thrown into jail or subjected to enforced disappearance or even killed.
All their top leaders are hanged by the AL government by order of the International Crime Tribunal established and run to oppress the opposition.
He had to run for his life in Bangladesh and he was under mental distress. His life is under threat from AL activists and law enforcement agencies. His family have been attacked and his elder brother was kidnapped.
The primary decision maker only considered DFAT reports and did not consider other independent international reports. Reference is made to various international reports including Transparency International; Ireland’s Refugee Documentation Centre; Unites States Department of State 2013 Country Report on Human Rights Practices, Bangladesh and United Kingdom Home Office Country of Original Report Bangladesh; Human Rights Watch Global Report, 2016 Human Rights Report of Odhikar; Human Rights Manifesto of JI and JI’s report on Human Rights Violations; Amnesty International Report 2016/17
Although he did not hold any high position in JI he was a devoted member and had an active role in its student wing and was a target of AL supporters and their police. Because he is a member of a family of JI supporters he has been threatened and mistreated as are all members of his family.
The decision to de-register JI is politically motivated and the police and RAB have assured the government they will destroy JI supporters and their descendants.
Bangladesh is not an accountable democratic country. He was not charged formally in Bangladesh and therefore did not have a problem to obtain a passport and visa and leave the country. However, if he returns home after so many years it will give the notion to his political opponents that he has a lot of money and they will try their best to harm him either themselves or by involving the police.
On 4 March 2022 the Tribunal received a further submission from the first named applicant with various attachments including letters of support from BNP in Bangladesh; witness statements from neighbours; witness statements from the primary applicant’s parents; reference letter from the BNP Australia and [University 1] Professor [Dr B] and country information reports.
The letter dated 1 February 2022 from [Mr C], Chairperson of political party formerly known as Jamaat-e-Islami states that the primary applicant was an active member of the student wing from 1 January 2000 to 30 January 2004. The letter states that it is not safe for the applicant to return to Bangladesh as the government’s secret agents have harassed the primary applicant’s parents and threatened to have a warrant. The letter further states the primary applicant’s family and children will be subject to torture and harassment by the AL.
The letter dated 12 December 2021 from [Mr D], Imam and Khatib of [named] Mosque and person responsible for the Mawlana wing of JI, [Thana 1] Police Station Unit states that the primary applicant and his family were involved (merely as supporters) in the opposition party JI. The letter states that the applicant’s parent’s involvement in this party has been under surveillance by the current government to such an extent that it is suffice to say they are living under close observation under a microscope by the government since 2009. The letter further states that it is not safe for the primary applicant to return to Bangladesh as he might be killed or harmed by the government’s secret agents. The letter further states that the primary applicant’s parents have been harassed and threatened to have a warrant to ‘shoot on sight’ issued by the government. Further, his family and children will be subject to torture and harassment by the AL.
The letter dated 8 January 2022 from the primary applicant’s neighbour in Bangladesh, [Mr E], states that all of the family members are involved in the Jamaat-e-Islami party. It is stated that the applicant is an active and dedicated activist of the student wing. The police and AL activists constantly harass the family; one of the brothers was previously in jail and both brothers are currently hiding due to their fears of the government. In 2009 the primary applicant was harassed by the AL when he came to visit Bangladesh and after his departure his wife was harassed. The letter states that it is not safe the primary applicant to return to Bangladesh because like many other activists he may be killed, harmed or go missing.
An undated letter from the primary applicant’s neighbour in Bangladesh, [Mr F], states that since before the year 2000 he has known the family of the primary applicant to be very politically aware and active through their association with Jamaat-e-Islami. The letter states that the primary applicant and his parents and the rest of the family have been tortured just because they stand against the ruling party. The letter states that before the primary applicant left the country he was a target of elimination by the AL cadres as he was an active and very popular member of the student wing of Jamaat-e-Islami. It is further stated that the primary applicant’s parents have resigned from the party due to old age yet to date they are mentally harassed and asked about the primary applicant’s whereabouts. He witnessed the primary applicant’s mother being badly injured when the ruling party cadres found out he left the country in 2009. They also keep looking for the primary applicant’s two other brothers. The letter states that there is no doubt that if the primary applicant comes back to Dhaka he will be taken away by law enforcement entities.
An undated letter from the primary applicant’s father states he is a unit in charge of Jamaat-e-Islami in [Neighbourhood 1]. His sole duty is to supervise and maintain the unit members activities in regard to the party’s ideology. Since 1979 he has been an active member and a promoter of the party and has organised hundreds of party meetings and contribute to the growth of the party. He was responsible for collecting donations from members and maintaining on-going activities until the current government banished the party from parliament and declared it a terrorist organisation. He denies the party is a terrorist organisation. Like the applicant and his two brothers many of the followers of the party have fled the country, been arrested or are in hiding. Since 2009 his son cannot re-enter Bangladesh due to his involvement in the student wing of the party. The AL thugs made their vindictiveness clear when they forcefully entered his house and injured his wife. She has since been discharged of her duty from the party due to her inability to move with her broken right ankle. He has also retired from the party due to old age complications and due to the inactivity of the party.
An undated letter from the primary applicant’s mother states she was an active member of Jamaat-e-Islami (for women) in [Neighbourhood 1], Dhaka until she was no longer able to move on her own following a physical dispute with local cadres of the current government. These individuals have targeted her son from a very early time in his political career due to his leadership. She states that cadres of the ruling party have threatened them for information about her son’s whereabouts and later when they discovered he had left the country they asked for ransom. These threats have been made to them for the better half of the last decade. The severity of these threats reached a high point when the primary applicant’s elder brother was arrested in the first term of the ruling party’s government and he has never returned home since then. This also resulted in her younger son going into hiding. She states that before the party was banned a weekly sitting used to take place at her house which was no secret. Unknown to them some informants from the ruling party took part in those sittings.
A letter dated 30 December 2021 from [Mr G], [office bearer], Islamic [Organisation 1], states that the primary applicant is an active community member in Sydney. He and his wife often lead various activities of charitable interest and volunteerism.
An undated letter from [Mr H], Teacher, Educator and Trainer, Department of Education NSW, states the primary applicant and his wife are community minded people who have contributed to various community and charitable events in Sydney.
A letter dated 10 January 2022 from Professor [Dr B], [University 1], similarly attests to the contributions made by the primary applicant and his wife to the local community.
A letter dated 1 March 2022 from the primary applicant’s GP [Dr I], states he suffers from stress and depression due to the political climate in Bangladesh in which his parents and other family live. He states the applicant reports having trouble recalling things and has difficulty concentrating. He asks that the issues be resolved with care.
On 14 March 2022 the applicant appeared before the Tribunal but due to ill-health the hearing was adjourned. On that day he produced a further submission consisting of country information reports, five letters of support from various persons attesting to his good character, evidence of an ongoing charitable donation made by the primary applicant and a further written statement. In his statement the primary applicant restates his belief that he is at risk of serious harm in Bangladesh on account of his affiliation with JI. He asserts that the previous evidence he has provided to the Tribunal support his claims. He provides the following additional information in respect of his claims:
He visited Bangladesh in 2009 because his mother was sick. He claims the AL was busy with the internal management of the party in the first half of 2009 having regained power. Therefore, they were unable to find out that he had entered the country at that time. The fact that he entered and exited the country without intervention by the government does not eliminate the risk he faces during another re-entry to the country.
He has not been assessed by ASIO and there is no ground for the Minister to consider him a danger to Australia’s security.
Even though he has been inactive in Australia if he returns to Bangladesh the AL government will believe that he will contribute substantially to the rising up of the JI party once again. The motto of the AL is to eliminate each and every JI activist thus he does not need to be a high-profile activist to be persecuted. The disappearances, kidnapping or murder of low-profile activities are not highlighted or reported.
He refutes he knowingly provided forged documents as part of his application for a Skilled Migration Visa.
His former hearing before the Tribunal was related to his Skilled Migration Visa rather than his Protection Visa application. Therefore, the information related to the possibility of persecution by the AL was completely irrelevant and unnecessary.
The Delegate considered his travel history to Bangladesh but failed to consider that the political environment keeps changing.
It was unnecessary for him to make a Protection visa earlier because he was pursuing other Visa applications and legal remedies relating to those applications.
He did not leave Bangladesh in 2004 with a fear of persecution. The fear of persecution arose when the political environment in Bangladesh changed in 2009 and the AL started pursing BNP-Jamaat activists.
On 30 August 2019 the second named applicant wrote to the Tribunal and provided further evidence in support of her claims including a further statement, a signed petition, letters of references and copies of reports on various reports about the political and human rights environment in Bangladesh.
In her statement she reiterates her claimed fears of persecution and maintains the delegate did not appropriately consider her evidence. She provides the following additional information:
The self-admission of her political activities in her application for protection is sufficient to prove that she is in danger of being prosecuted and put on trial or killed by the ruling government.
Her parents and her parents-in-law were politicians of JI. She herself is one of the popular activists of JI, having attended party meetings and democratic processions against the ruling party and made donations to the party in [Neighbourhood 1], Dhaka.
Since her arrival in Australia, her father-in-law told them that the police have come to their house asking for her and her husband’s whereabouts.
She had run for her life from Bangladesh and was in mental stress. Thugs of the AL not only attacked her in-law’s family members and kidnapped her elder brother-in-law but also her parent’s home.
She didn’t provide specific details in her statement about her parent’s activities as she was married and living in her husband’s family home. However, her father was abused, harassed and also physically assaulted by AL supporters. Currently her parents live far away in a relative’s home in hiding. Her only brother was badly hit by AL supporters. Both her brother and father were under treatment in her relative’s home.
In Bangladesh the ruling party always targets the low-profile politician more than the high-profile politician via torture, unlawful imprisonment and unjust killings with a view to exterminate the support base of the opposition party. Although she did not hold any high position in JI she was a member of JI and had an active role in its student wing and was a target of AL supporters and their police.
Bangladesh is not an accountable democratic country and it is therefore not easy to check out a person’s credentials. She was not charged formally in Bangladesh and therefore did not have a problem to obtain a passport and leave the country. However, returning home after so many years will give the notion to her political opponents that she has money and the police and/or AL supporters will do their best to harm her.
On 4 March 2022 the applicant provided to the Tribunal a further submission with various attachments including a written statement, a public petition, 3 neighbour witness statements, 2 family witness statements, 10 reference letters from various community personages and 278 (-126 blank pages) pages of country information regarding the political and human rights environment in Bangladesh.
A letter dated 1 February 2022 from [Mr C], Chairperson of political party formerly known as Jamaat-e-Islami states that the applicant’s husband was an active member of the student wing from 1 January 2000 to 30 January 2004. The letter states that it is not safe for the applicant and her husband to return to Bangladesh as the government’s secret agents have harassed her husband’s parents and threatened to be in possession of a warrant. The letter further states the applicant, her husband and children will be subject to torture and harassment by the AL.
A letter dated 12 December 2021 from [Mr D], Imam and Khatib of [named] Mosque and person responsible for the Mawlana wing of JI, [Thana 1] Police Station Unit states that applicant’s husband and his family were involved (merely as supporters) in the opposition party JI. The letter states that the applicant’s husband’s parent’s involvement in this party has been under surveillance by the current government to such an extent that it is suffice to say they are living under close observation under a microscope by the government since 2009. The letter further states that it is not safe for the applicant’s husband to return to Bangladesh as he might be killed or harmed by the government’s secret agents. The letter further states that the applicant’s husband’s parents have been harassed and threatened to have a warrant to ‘shoot on sight’ issued by the government. Further, her husband, she and the children will be subject to torture and harassment by the AL.
A letter dated 8 January 2022 from the applicant’s husband’s neighbour in Bangladesh, [Mr E], states that all of his family members are involved in the Jamaat-e-Islami party. It is stated that the applicant’s husband is an active and dedicated activist of the student wing. The police and AL activists constantly harass the family; one of the brothers was previously in jail and both brothers are currently hiding due to their fears of the government. In 2009 the applicant’s husband was harassed by the AL when he came to visit Bangladesh and after his departure the applicant was harassed. The letter states that it is not safe the applicant’s husband to return to Bangladesh because like many other activists he may be killed, harmed or go missing.
An undated letter from the applicant’s husband’s neighbour in Bangladesh, [Mr F], states that since before the year 2000 he has known the family of the applicant’s husband to be very politically aware and active through their association with Jamaat-e-Islami. The letter states that the applicant’s husband and his parents and the rest of the family have been tortured just because they stand against the ruling party. The letter states that before the applicant’s husband left the country he was a target of elimination by the AL cadres as he was an active and very popular member of the student wing of Jamaat-e-Islami. It is further stated that the applicant’s husband’s parents have resigned from the party due to old age yet to date they are mentally harassed and asked about the applicant’s husband’s whereabouts. He witnessed the applicant’s husband’s mother being badly injured when the ruling party cadres found out he left the country in 2009. They also keep looking for the applicant’s husband’s two other brothers. The letter states that there is no doubt that if the applicant’s husband comes back to Dhaka he will be taken away by law enforcement entities.
An undated letter from the applicant’s husband’s father states he is a unit in charge of Jamaat-e-Islami in [Neighbourhood 1]. His sole duty is to supervise and maintain the unit members activities in regard to the party’s ideology. Since 1979 he has been an active member and a promoter of the party and has organised hundreds of party meetings and contribute to the growth of the party. He was responsible for collecting donations from members and maintaining on-going activities until the current government banished the party from parliament and declared it a terrorist organisation. He denies the party is a terrorist organisation. Like the applicant’s husband and his two brothers many of the followers of the party have fled the country, been arrested or are in hiding. Since 2009 the applicant’s husband cannot re-enter Bangladesh due to his involvement in the student wing of the party. The AL thugs made their vindictiveness clear when they forcefully entered his house and injured his mother. She has since been discharged of her duty from the party due to her inability to move with her broken right ankle. He has also retired from the party due to old age complications and due to the inactivity of the party.
An undated letter from the applicant’s husband’s mother states she was an active member of Jamaat-e-Islami (for women) in [Neighbourhood 1], Dhaka until she was no longer able to move on her own following a physical dispute with local cadres of the current government. She states that these individuals have targeted her son from a very early time in his political career due to his leadership. She states that cadres of the ruling party have threatened them for information about her son’s whereabouts and later when they discovered he had left the country they asked for ransom. These threats have been made to them for the better half of the last decade. The severity of these threats reached a high point when the applicant’s husband’s elder brother was arrested in the first term of the ruling party’s government and he has never returned home since then. This also resulted in his younger brother going into hiding. She states that before the party was banned a weekly sitting used to take place at her house which was no secret. Unknown to them some informants from the ruling party took part in those sittings.

A letter dated 30 December 2021 from [Mr G], [office bearer], Islamic [Organisation 1], states that the applicant’s husband is an active community member in Sydney. He and his wife often lead various activities of charitable interest and volunteerism.
An undated letter from [Mr H], Teacher, Educator and Trainer, Department of Education NSW, states the applicant and her husband are community minded people who have contributed to various community and charitable events in Sydney.
A letter dated 10 January 2022 from Professor [Dr B], [University 1], similarly attests to the contributions made by the applicant and her husband to the local community.
A letter dated 1 March 2022 from the applicants GP, [Dr I], states the applicant has been going through a lot of stress and depression for years and suffers from high blood pressure which is currently under control by medication but does become aggravated by stress. Recently, she found her hearing in the [specified] ear worsened significantly and she needs to be spoken to loudly and can become irritated easily by repetitive questioning due to her hearing issue. He asks that consideration be given to these medical conditions when conducting the hearing.
On 28 April 2022 the applicant provided a further submission in which she restates her claims for protection on the basis of her and her husbands, and their respective families, support for Jamaat-e-Islami. She also refutes the findings of the delegates.
Attached to the submission is a letter dated 1 February 2022 from [Mr C], In-Charge (Chairperson), of the Political Party formerly known as Jamaat-e-Islami in Bangladesh. The letter states that the applicant was an active member of the women’s wing and was a collector of Bayt Al-mal (donations) for JI from 1 December 2005 to 31 August 2009 in [Neighbourhood 1], Dhaka. It is stated that she attended and organised many programs for the young women, delivered lectures and collected party members. It is stated that it is not safe for the applicant to return to Bangladesh because she may be harmed by secret agents of the government who have harassed her husband’s parents.
Also attached are excerpts from the Migration Act 1958 and the Refugee Convention 1951.
Tribunal hearings
The first named applicant appeared before the Tribunal on 3 May 2022. His testimony and responses to the Tribunal’s concerns is summarised as follows:
He was born in Dhaka, Bangladesh as was his wife. His two children were both born in Australia. All family members are citizens of Bangladesh.
His parents, [number of] brothers and one sister all reside in Dhaka. Prior to his departure from Bangladesh the applicant resided with his family. He is not in direct communication with his brothers as they are living in hiding to avoid being harmed by AL supporters.

100. He completed one year of University in Bangladesh. His wife completed a bachelor’s degree. He never worked in Bangladesh but his wife once worked as a [Occupation 1].
101. He fears he and his family members will be harmed in Bangladesh on account of their association with JI.
102. Prior to his arrival in Australia he was involved with the student wing of JI from 2000 until 2004. He was first a preliminary member of JI and then progressed to being an associate member of the student wing. He was given a secretarial position with responsibility for publicity and inviting people to join the party. His parents were also actively involved in JI and both held leadership positions in their local area. He also assisted his parents with their political activities by inviting people to join their meetings and sometimes collecting donations.
103. Prior to his departure from Bangladesh in 2004 he did not personally experience any problems on account of his political activity. This is because the BNP and JI were ruling the country at that time. The Tribunal pointed out that his evidence appears to differ from the testimony of his neighbour, [Mr F], which states that before leaving the country he was a target of elimination by the AL, now the ruling party, because he was an active and very popular member of the student wing of JI. He responded that he thinks [Mr F] intended to say that he was targeted from 2009.
104. The reason he returned to Bangladesh in 2009 was because his mother was very sick and he feared she might die. He said he took a risk going back at that time because the AL was in power then. He said he was attacked on that occasion and his father told him to return to Australia immediately. When questioned further about this he said that on the day of the incident his father called him and told him not to come home as trouble was brewing in the area. Regardless, he went to see what was happening and a group of people recognised him and chased after him. He was able to jump onto a moving bus and he avoided being caught. That night after the attack he went to stay at a relative’s home and from there he went straight to the airport and flew back to Australia.
105. When asked why he was targeted in 2009, given he had been absent from the country for five years, he said that his father was a party leader and he was supporting him. He said that he was busy meeting with old colleagues and people from the opposition saw him and must have assumed he would become the next JI leader in the area.
106. The Tribunal put it to the applicant that a statement he provided to the Tribunal states that at the time of his return visit to Bangladesh in 2009 the AL was busy establishing themselves in government and were unable to find out that he had entered the country. The Tribunal noted his assertion that him entering and exiting the country without intervention doesn’t mean he won’t be at risk of harm if he returns in future. The Tribunal put it to the applicant that this testimony suggests that nothing occurred in 2009. The applicant responded that what he meant in his statement to the Tribunal is that it was not known at a government level that he was in the country. He said that the incident which took place in 2009 occurred at the local level.
107. The applicant was asked whether anything else happened to him or any other of his family members in connection with his visit in 2009. He replied that his family didn’t tell him what happened after he returned to Australia. He said his father only said he should stay in Australia and never come back to Bangladesh. The Tribunal pointed out to the applicant that the letter from [Mr E] says his wife was harassed following his visit in 2009 and it could be assumed that he would be aware of this.   He replied that after he flew back to Australia his wife was living with her relatives but whenever she went to see his parents or to collect any of her belongings she was harassed and heckled and there was verbal abuse and pulling of her clothes. He said this behaviour was clearly politically motivated. When asked why he did not mention this to the Tribunal when asked he said it happened after he returned to Australia and not while he was there.
108. When asked about his parent’s daily experiences now he said that people are always coming to heckle them. He said that in the last couple of months people have come and ransacked their home and asked them where he and his brothers are and when he will return to Bangladesh. He said his father tried to make a video of the ransacking but they snatched his phone and therefore he doesn’t have any proof to give to the authorities about this sort of harassment.
109. When asked why the AL would be interested in him now given he has not lived in Bangladesh since 2004 and only had a relatively brief involvement with the student wing before that he said the general custom in Bangladesh is that political rank passes from generation to generation. He said that AL people think that if he returns he will assume his father’s role in JI. He said his father was the local [office bearer] of JI but now he has retired and is not directly involved in politics. He added that the party’s registration has been cancelled and JI has effectively been dismantled. Despite this he said that JI still has a support base and remain a significant opposition to the AL. He said for this reason JI supporters are still being harassed and penalised.
110. When asked why his parents have remained living in the area when confronted with so much harassment he said they have their own home and neighbours who can help them if they are sick or have problems. He said his parents are local identities and if something happens to them the people in the area will protest. He said that wherever they went they would continue to be harassed because their political ideology will never change.
111. He said that his mother was physically attacked in 2019 and she suffered an injury to her lower back. He said he was only told about this quite some time after the incident occurred. He was told that people came with the intention of killing his father and when his mother tried to intervene she was injured. He said his father was hurt as well.
112. He said his father never mentioned to him that they were ever detained, interrogated, or charged by the police or security forces for their political involvement.
113. The Tribunal referred to the references in his supporting documentation to there being a warrant for arrest in place with shoot to kill orders and asked the applicant what he knows about this. The applicant appeared unaware of this and said that if local people have said this it could be an act of harassment by people doing the dirty work for the government. He said he has not been told first-hand about such a threat and his parents might have kept it from him. However, he said that if it is mentioned in the letters then its likely there is such an order in place. When the Tribunal expressed surprise that he seems not to be aware of this fact given the information is contained in letters which he provided to the Tribunal he said that he cannot negate what is said in the letters but as he is not in Bangladesh he cannot say with certainty what has occurred there. He said he assumes the shoot to order must be directed at him.
114. The Tribunal put it to the applicant that it is difficult to accept that he is being targeted in this way given his long absence from the country. He replied that there are numerous examples on YouTube and other social media of the political harassment which is going on in Bangladesh. He said this is occurring from the grassroots level to higher levels of politics.
115. The applicant stated that in addition it will be assumed that he has amassed great wealth living in a western country and his political opponents will think he will use that wealth to work against them. He said that when people go to heckle his parents they tell them to get money from their son to make them go away.   The Tribunal discussed with the applicant country information which indicates that tens of thousands of Bangladeshi’s exit and enter the country from various locations each year without hindrance.   The applicant responded that those people are not politically involved or do not have families which are politically involved.
116. The Tribunal put it to the applicant that his evidence suggests that his parents had more prominent profiles as JI activists than he ever did and asked how they have managed to avoid being arrested and to remain living in their area. He replied that his father and all his family members are scrupulously honest and the ruling party cannot find anything to hold against them. He added that his parents are quite aged and due to their reputation if something was to happen to them the local people would protest about it. He said the AL does not want the younger generation of JI supporters to step up and take over from their elders and that is why they will be targeted.
117. The applicant stated that JI does not have a presence in Australia and so he is not currently engaged in any political activities. He said he is attached to a charitable Islamic organisation and he works with that organisation to help people in Australia. He said he has not attempted to contact JI figures in Bangladesh but if he is required to return to Bangladesh he will contact party members.
118. The applicant stated that prior to her migration to Australia his wife was also attached to JI. When asked what role she played in the party in Bangladesh he became flustered and said he couldn’t remember what position she held. He referred the Tribunal to previous statements for that information. When pressed he said he recalls she was a donations [office bearer] and said she also gave explanations about the Koran to those who were interested and was active in the women’s wing. He said that prior to 2009 she experienced no problems whatsoever on account of her political activities. He again referred to the heckling she received whenever she went to visit his parents in 2009.
119. As to his wife’s parent’s political activities he said that his father-in-law died in 2020 of [cancer]. He said that before that his father-in-law, who was a JI member in Barisal, was heckled and harassed and couldn’t continue living in his ancestral place and moved house. He said his mother-in-law supported her husband but was not involved in any political activity.
120. The applicant said that he fears he and his wife will be arrested at the airport if they return to Bangladesh and because of that his children will suffer. He repeated that the reason for their arrest will be to ensure that the whole family is rendered politically inactive. The Tribunal put it to the applicant that if his evidence is to be believed it appears his parents ought to have been arrested years ago. He again said that the authorities are unable to find a shred of evidence to hold against them and any attempt to arrest them will result in local protests.
121. The Tribunal pointed out that the available evidence indicates the applicant is also afraid that false legal charges will be levelled against him and noted that if this is true then surely the authorities could level false charges at his parents as well. The applicant claimed not to be aware of this claim.
122. The Tribunal discussed with the applicant country information which indicates that the authorities have particularly targeted for arrest JI’s senior leadership and prominent leaders, Chhatra Shibir members and in some cases family members. The Tribunal noted that lower-level JI members have reportedly been able to avoid the attention of the authorities either by paying bribes to the AL or physically relocating.   The applicant responded that he has submitted country information to the Tribunal which reveals that 15,000-20,000 low level JI supporters have been harassed and tortured by the ruling party. He said that attacks on JI are not widely reported because the incumbent government controls the press.
123. The Tribunal discussed its concern with the applicant that his evidence about the attack on his mother in 2019 appears to be at odds with the statement of his neighbour, [Mr F] which states he witnessed how badly your mother was injured when the ruling party cadres found out you had left the country in the year 2009. The Tribunal stated that it is difficult to accept that AL would have waited 10 years to exact revenge on his parents. Also, the Tribunal pointed out that in his written claims made in 2017 he wrote that his family were not physically harmed due to their political involvement. The applicant replied that the last incident was in 2019 but there were recurring incidents. He confirmed it was in 2019 when his mother got hurt but extortion, heckling, ransacking was going on all the time.
124. The Tribunal put it to the applicant that he claims a long history of family association with JI, a party which is now de-registered and effectively banned in Bangladesh; that his mother other states that he was targeted for reason of political activity from early on in his political career and that he was a target of elimination even before he left the country.   The Tribunal noted that he has also stated that he was threatened and mistreated and fears harm because he is from a prominent JI family yet he arrived in Australia in 2004 and only sought protection in 2017 even after stating he encountered problems from ruling party cadres on his return visit in 2009. The Tribunal indicated that his migration history strongly suggests his application for a Protection Visa could be a last effort to obtain a migration outcome after some unsuccessful attempts to gain permanent residency through other visa pathways. The applicant responded that nobody wants to leave their country forever and gaining a Protection Visa means he won’t be able to ever go back. He said he applied so late because being here and being able to go back is one thing and being here and never being able to return is another thing.
125. The applicant also advised the Tribunal about the difficulties he encountered in respect of the cancellation of his permanent visa. He said that the representative he used at the time advised him that he could win an appeal to the court but around that time the representative closed his business and he also had to move residence a few times. Due to all that he said he couldn’t file his case in the court on time. He said that in 2017 when he realised he could never go back to Bangladesh he applied for a Protection visa. He also said that in 2013 when he received a negative result from his appeal to the AAT he went to Parish Patients for advice and was told that the outcome of that review is not related to his political issues.   The Tribunal stated that the firm Parish Patients brings numerous protection cases involving Bangladeshi applicants before this Tribunal and it is difficult to accept they would have advised him against lodging a Protection Visa application given his claims.   He reiterated that he was advised that his appeal against the cancellation of his permanent visa would be successful.
126. The Tribunal also discussed with the applicant the fact that the delegates decision indicates that in his former proceedings before a differently constituted Tribunal during the review of the decision to cancel his Skilled Independent visa he made only broad claims about corruption and lack of security in Bangladesh and failed to mention any of the specifics of his political claims at that time. The applicant stated at that time his parents hadn’t yet told him about his brother’s kidnapping. He said that his lawyer at that point said the migration case was separate to security issues and therefore he didn’t go into that detail.
127. The Tribunal also put it to the applicant that in his written claims and oral evidence to the department he stated that his elder brother was kidnapped from the home in 2013 and his family were demanded to pay a ransom. The Tribunal further noted he stated that in 2014 his brother escaped his kidnappers and his parents found him sick and tortured and he was recovering in a rehabilitation centre. The Tribunal pointed out that his mother’s statement indicates that his elder brother was arrested during the AL’s first term, not kidnapped, and has never come back home even to this day and they have no idea what has happened to him. Similarly the Tribunal noted that one of the neighbour statements indicates his brother was arrested, not kidnapped and the other statements which talk about how his family was harassed make no mention of his brother being either kidnapped or arrested.
128. The applicant responded that his mother’s statement is correct. He said that after his brother went out from their house he didn’t come back. He said his father doesn’t share everything with his mother. He said that if his mother was told where her son is she will want to go to him and if she does that she will be followed and his brother will be compromised. He said he doesn’t what his neighbour saw and what he has written is his point of view. He said it is possible that somebody could say arrested when it was in fact a kidnapping. He said the main point to note is that his brother was taken away and hasn’t come back.

129. The Tribunal also noted its concern that one of the statements of support he produced from a person responsible for the Mawlana wing of JI ([Mr D]) makes the point that his family were involved with JI “merely as supporters”. The Tribunal pointed out that this appears entirely different to the level of involvement with JI he has claimed.   The applicant responded that this letter was presented to the Tribunal a few months back and he is talking about the present situation. He added that [Mr D] is new to JI.
130. The Tribunal indicated that it is also concerned that the wording in the various letters of support, particularly about the treatment he is likely to face on return to Bangladesh, is very similar. The Tribunal stated that this could indicate these statements were written by the same person. The Tribunal indicated it would need to think about what weight to afford this and the other evidence from JI particularly as there is country information to support that   fraudulent documentation is easy to obtain in Bangladesh. The applicant responded that the letters were all given to him by his father who had them translated in Bangladesh. He said it is possible they were all translated by the same organisation and this could account for why the language sounds the same.
131. The second named applicant appeared before the Tribunal on 5 May 2022 to present arguments in support of her case.   Her testimony and responses to concerns put to her by the Tribunal are summarised as follows:
132. She was born in Barisal, Bangladesh. She married the first named applicant in November 2004 in Dhaka, Bangladesh. They have two children together aged [age] and [age].
133. Before leaving Bangladesh in 2009 she lived with her in-laws. From around end May 2009 she moved between her in-law’s home and the home of a relative of her fathers because she had experienced some harassment from AL cadres. She said they teased her and pulled her clothes because she is a supporter of JI. She said they also asked her about her husband’s whereabouts. She said at first she gave them no information but they later came to know he was no longer in Bangladesh.
134. Her parents, one brother and one sister reside in Bangladesh. Her mother sometimes lives in Barisal and sometimes stays with other relatives because she doesn’t feel safe alone in Barisal. Her husband passed away in 2020. She does not have contact with her sister because she and her husband’s family don’t approve of their JI activities. The last thing she heard about her brother was that he was in a rehabilitation centre because around 2011 or 2012 he was badly beaten by AL cadres. Her father was a JI member but her mother was not. Her brother assisted his father and supported him in his political activities.
135. She is in contact with her mother every few months only. Her family are reluctant to talk with her because they are afraid that their calls can be traced and they will be located and extorted for money because they know she is in Australia and they think she has wealth.
136. Her in-laws live in Dhaka. Her brothers in law are in hiding somewhere since around 2015.
137. She departed Bangladesh for Australia in 2009 to join her husband and to save her life. From April 2009 onwards she was always afraid of being harassed and getting killed by AL cadres. Prior to that she experienced no problems in Bangladesh.
138. As far as she knows her husband experienced no problems on account of his political activity prior to 2004 when he first left for Australia. He has returned to Bangladesh several times and for the first two or three visits he had no problems. During the visit in 2009, she and her husband were out when some people came to the house of her in-laws asking for her husband. Her father-in-law called them and said he was feeling scared that perhaps those people would try to attack them. They did not return home immediately but her husband said that he wanted to see his mother who was sick at the time. When they went home AL cadres tried to capture him but he managed to run away and flee on a bus. He then went to a relative’s house and from there he was sent back to Australia.
139. As to how she personally got involved with JI in Bangladesh she said that her father was a JI member and she learned from him. After getting married she joined JI activities with her mother-in-law who was with the women’s wing. She started to work with her as a normal member and later joined the wing which is concerned with collecting money for JI activities. She was also involved in arranging meetings and giving lectures. Before her marriage she was not actively working for JI. She just helped her father with paperwork and went with him to visit people in their homes and invite them to join the party. She helped to put together lists of prospective members. She was not a member of JI herself and that was the extent of her involvement before she was married.
140. The Tribunal put it to her that her previous submissions indicate she was a member and active member of the student wing. She responded that this was after she got married. She confirmed she was no longer a student when she married and the Tribunal questioned why she would become a member of the student wing at that time. She then said that she started working with the student wing after she got married. She said she needed to start as an intern, working with young people. She said that was at the beginning of her active involvement and she gradually worked her way up from there.
141. She has not maintained any contact with JI in Bangladesh out of fear. When the Tribunal pointed out that it seems unlikely any harm would come to her for this reason in Australia she said that she cannot do anything that is required of her from here.
142. Her father was an associate member and then became a member of JI. He only worked as a member; he did not hold a position in the party. His activities included attending meetings, attending lectures, securing donations and solving problems with other upper-level leaders.   He suffered no harm on account of his political activities until after 2009. From then on he was harassed and abused by AL cadres and sometimes their house in Barisal was ransacked and their possessions destroyed. One day they also beat her brother.
143. Her parents remained living in their home in Barisal despite the harassment because they had no other home to go to. Sometimes if the situation was very bad they went to hide in some relatives’ homes until it was safe to go back.
144. Her father died of [cancer]. That said he was living in a virtual state of house arrest and he couldn’t receive proper medical treatment.
145. The Tribunal asked the applicant why her claims and submissions concentrate purely on her in-law’s political activities and make little mention of her own family’s political engagement. She replied that after marriage everything became about her in-law’s family as she was living with them. Therefore she thought it more important to focus on their activities.
146. She said her father-in-law was a long-time, active member and [office bearer] of JI. He arranged meetings, convinced people to join the party, collected donations and implemented whatever improvements were needed. Her other-in-law worked in the house with women. Often groups of 10-15 women would gather at their home and study the Koran.
147. The applicant was asked what harm came to her husband’s family on account of them being JI activists. She said that from about 2013 AL people came to their home. One day they came and broke everything in the house. Her younger brother-in-law escaped but they caught her older brother-in-law and took him away. She said the people that came and took him said they were police and her father-in-law went to the local police station but didn’t find his son there. A few days later the family were asked for ransom money and her brother in laws kidnappers said they would kill him if they didn’t pay. Her father-in-law was retired by then and he didn’t have enough money. Every few weeks those people came to the house and broke things. She heard that in 2014 by brother-in-law escaped and when her father-in-law found him he was in a bad situation mentally and physically and they admitted him to hospital. Now he is somewhere in a safe place but her father-in-law didn’t say where.
148. The Tribunal put it to the applicant that this is the first time in the proceedings that it has been said that the people who took her brother-in-law claimed to be police. She replied that she doesn’t know why she didn’t say that before.
149. When asked if her parents in law have been physically harmed on account of their political activities she replied that they are old. She said though that one time when AL people came to their home her mother-in-law tried to protect her husband from being attacked and she was pushed and she injured her back and ankle. When asked when this occurred she said it happened in 2017.
150. When asked if her in-laws are continuing to experience such problems she said that AL cadres visit them every two months or so and ask about the whereabouts of her sons and ask for money and try to snatch things from the home. She said this always leaves her in-laws in a state of fear.
151. The applicant confirmed that her parents-in-law are both retired from their political roles. The Tribunal asked why this harassment of your in-laws keeps going on given they have retired from politics. She said she believes that the AL think that she and husband and brothers-in-law will go there and resume their political activities.
152. The Tribunal put it to the applicant that based on her evidence her husband and brothers-in-law have been absent for years and it seems unlikely their opponents would continue to look for them for years on end. She stated that in Bangladesh political power is generational and the AL fear they will return and take up political positions and oppose them.
153. When asked why her in-laws have not moved away from the area given the ongoing harassment they have to endure she said that they only own the one home and they have good neighbours which they wouldn’t find in another area.
154. Noting her claims that she and her husband fear arrest on return to Bangladesh the applicant was asked how it is possible that in-laws have evaded arrest given the profile they allegedly have.    She replied that they are old and have resigned from political activities. She said she doesn’t know if they were ever arrested as her in-laws usually don’t tell them everything immediately to avoid stressing them.
155. She fears that she and her family will be killed if they return to Bangladesh because of their political ideology.
156. The applicant was asked if she is aware there is supposedly a warrant in place for her husband’s arrest in Bangladesh, with a shoot to kill order. She replied that she isn’t aware of this. The Tribunal pointed out that this information is provided in various of the letters she herself has submitted to the Tribunal in support of her claims.   She said that she thought the Tribunal was asking whether she had written something like that. She said that whatever the witnesses have written is the present reality. She said they are not in Bangladesh so do not know what is going on. She said that the person who provided that information is an active member of a JI police station unit and possibly has some informers working with him. She said the AL don’t know that they can’t go back to Bangladesh and possibly they prepared the warrant so that they can catch them whenever they return.
157. She also fears her political opponents will assume they have a lot of money having lived abroad and they will target them for this reason. The Tribunal discussed with the applicant country information which indicates that tens of thousands of people come and go from Bangladesh each year after spending time abroad for various reasons and do not generally encounter such problems. She replied that people are targeted for this reason but the government controls the media and so it is not widely reported.
158. The Tribunal put it to the applicant that her expressed fear that her children will not have access to the basic rights available to Australian born children doesn’t appear to fall within refugee criteria.   She said that if the children’s parents are killed the children might also be killed and/or grow up and want to avenge their deaths.
159. The Tribunal discussed with the applicant information contained in the latest DFAT report which indicates that JI leaders and high-level activists are likely to be more at risk of serious harm than ordinary JI sympathisers. She responded that reports differentiate between different levels of activity. She said that the newspapers don’t focus on the experiences of lower-level activists.
160. The Tribunal put it to the applicant that her written claims state that her brother-in-law was kidnapped from the home in 2013 and the family were demanded to pay a ransom. The Tribunal pointed out that she further states that he escaped his kidnappers and her in-laws found him sick and tortured and he was sent to a rehabilitation centre. The Tribunal pointed out that her mother in law’s statement indicates that her brother-in-law was arrested during the AL’s first term, not kidnapped, and has never returned home even to this day and the family has no idea what has happened to him. The Tribunal pointed out that similarly one of the neighbour statements indicates her brother-in-law was arrested and not kidnapped. The Tribunal put it to the applicant that her evidence presented by her for the first time today is that the people who came and took her brother-in-law away said they were from the police and that her father-in-law went to the police station to search for him. The Tribunal put it to both applicants (her husband was present for this stage of the hearing on 5 May 2022) that it is concerned that her mother in laws statement doesn’t support what is claimed and that the new evidence has been introduced in a bid to try to overcome the differing accounts of whether her brother-in-law was kidnapped or in fact arrested.
161. The applicant stated that they were not always informed immediately of events which occurred while they were in Australia. Whatever we got is after delays. She said that her mother-in-law suffers from chronic diseases and it is possible that her husband didn’t tell her the truth about what happened to her elder son. That is why he might have said he was arrested. She said that when her brother-in-law came back and was sent to a rehabilitation centre her father-in-law didn’t tell his wife where he was because she would want to go to his side and this could have alerted their opponents to his whereabouts.
162. The Tribunal put it to the applicant that the letter of support from a person responsible for the Mawlana wing of JI ([Mr D]) makes the point that her in-laws were involved with JI but “merely as supporters”. The Tribunal stated that this implies an entirely different level of involvement with JI to what she has claimed. She replied that [Mr D] is referring to the present situation now that her in-laws have retired. She said that if he had stated they were deeply involved with JI it might be found out and they might get tortured.
163. The Tribunal discussed with the applicant its concern that several of the supporting letters provided in submissions are very similarly worded when describing the treatment that she and her family are likely to face on return to Bangladesh. The Tribunal advised that this gives it the impression that they might have been written by the same person. The Tribunal also discussed with the applicant country information which indicates that fraudulent documentation is easily obtained in Bangladesh.
164. The applicant responded that the supporting letters are not bogus. She said that it is possible the similarities can be put done to the way the letters were interpreted. She said she doesn’t know how this occurred because she hasn’t spoken to her father-in-law about it.
165. The Tribunal put it to the applicant that she and her husband claim a long history of family association with a political party which is now effectively banned in Bangladesh. The Tribunal noted that she claims to have been harmed in the past because of her and her husbands and his family’s past political involvement and that she fears she will be arrested or even killed on return and that her children might also be killed if she returns to Bangladesh. The Tribunal indicated that these are very serious claims which she appears to have had since 2009. The Tribunal noted that despite these fears, she arrived in Australia in 2009 but only sought protection in 2017. The Tribunal indicated that her migration history strongly suggests her application for a Protection visa could be a last effort to obtain a migration outcome after some unsuccessful attempts to gain permanent residency through other visa pathways.   The Tribunal acknowledged she once held a permanent visa but pointed out that it was cancelled years ago and that this ought to have alerted her to the possibility that she might be required to return to Bangladesh. The Tribunal put it to the applicant that the delay in applying for protection could cause it to conclude that her claims are not genuine.
166. The applicant responded that she obtained residency two years after her arrival in Australia but it was cancelled six months later for reasons connected to the cancellation of her husband’s permanent visa. She said that at that time they hired a lawyer who advised them they would win the case. She said that at the time she still hoped she would get back her residency visa. The Tribunal pointed out that she failed several times thereafter in her appeals to various levels of the court system and despite this she still did not apply for a protection visa until much later.   She stated that her lawyer kept telling her that they were different cases and she had to continue to finalise one issue before starting another.
167. The first named applicant stated that by the time his wife lost her case in the Federal Circuit Court the lawyer they had engaged had passed away and the replacement lawyer told her she had a good chance of winning the appeal. He added that they thought they would be able to return to Bangladesh when the AL was removed from power.   His wife stated that when she appeared before the Migration and Refugee Tribunal previously she spoke about the poor living environment and poor education system in Bangladesh and how that would not be good for their children. She said she didn’t mention the political situation in Bangladesh because her lawyer advised her it was not relevant.
168. The Tribunal put it to the applicants, pursuant to the requirements at s.424AA of the Act, that information the second named applicant gave to the Tribunal in oral evidence about the events which occurred during the visit of her husband to Bangladesh in 2009 appears to be inconsistent with his oral evidence provided to the Tribunal on 3 May 2022. That is, she said that in 2009 when her husband had returned to Bangladesh, there was an incident which happened when they were not at home. She said some people came to her in-law’s house and asked for her husband and that her father-in-law then called them and said that he feared some people might want to harm them. Despite that she said that her husband wanted to see his sick mother so they went home anyway and then ended up being chased and having to flee the area by bus. On the other hand, the first named applicant stated in oral evidence provided on 3 May 2022 that while he was out his father called him and said that some trouble was brewing in the area and he should not return. He said he went anyway to see what was going on and then was recognised and chased and had to flee on a bus.    The Tribunal pointed out that the first named applicant did not state that people came to his house asking for him directly.

200. The Tribunal has also had regard to DFATs advice in respect of the treatment of members and supporters of JI in Bangladesh and notes that senior leadership and prominent leaders are assessed to be at risk of harm from the AL and their supporters. When this was discussed with the applicant’s they did not refute this assessment but referred to country information which they contend supports that JI supporters at every level of the organisation are targeted by the AL. Regardless of this, the Tribunal is satisfied, based on DFAT’s assessment, and country information sources submitted by the applicants, that JI persons in senior leadership and prominent leaders are indeed likely to be targeted for adverse treatment by the AL. Given this and noting the claimed political profiles of the first named applicant’s parents the Tribunal finds it difficult to accept that they evaded adverse treatment, such as arrest and the levelling of false charges, from the authorities, situations which the applicant’s themselves fear. When this was discussed with them during the hearings they put it down to their age and relatively recent retirement from politics but the Tribunal was not persuaded by this given the AL’s reported targeting of JI members and the claimed length of their involvement as office holders and activists for JI.
201. The Tribunal also finds it significant that the second named applicant also claims her own family, in particular her father and brother, were also actively engaged with JI and yet she has provided no evidence to support this, unlike the extensive efforts made to substantiate her in-laws claimed political credentials. The Tribunal does not accept her response that this is because she was living with her in-laws in Bangladesh and focusing on her life with them. The Tribunal considers she would have made similar efforts to support this claim if indeed it was true.   The Tribunal considers it more likely she has made the claim that her own family are also JI activists to strengthen her claims for protection.
202. The Tribunal also has concerns about the supporting documentation produced by the applicants which it discussed with them during the hearings. In the Tribunal’s view the wording of the numerous letters of support is almost identical in the description of what is feared will happen to the applicants and their family if they return to Bangladesh. This causes the Tribunal to think they may have been written by the same person in a bid to bolster support for their claims and are not a genuine reflection of the situation from a variety of perspectives. The Tribunal also put it to the applicants during the hearings that it is concerned that documentation of the type they have produced, including the letters of support from JI, are reportedly easily fraudulently obtained in Bangladesh. Both applicants maintained the letters are not bogus and again both offered near identical explanations as to why the wording of the letters from their neighbours are so similar, namely that it could be due to all the letters being translated by the same company.
203. Again, the Tribunal is concerned that their responses appear to have been corroborated in the time between the hearings of the first and second named applicants. In any event, the Tribunal is not persuaded that interpretation methods account for the similarly worded testimony which appears throughout the evidence. The Tribunal remains of the view, for these reasons and because of the credibility concerns expressed throughout this decision that it is likely the letters were written, either by the applicants or a member of their family and provided to a variety of people to sign and witness in support of their claims. The Tribunal considers this further reason to question the credibility of the applicants.   Similarly given the proliferation of fraudulent documentation in Bangladesh the Tribunal affords the letters of support from former JI leaders no weight.
204. Also, of great concern to the Tribunal is the evidence which has been presented in respect of the claimed kidnapping of the first named applicant’s brother in 2013. In their written claims the applicants state that the first named applicant’s brother was kidnapped in 2013 and that after his escape he was found in a poor physical and mental state and he was recovering in a rehabilitation centre. In their oral evidence the applicants state that both the first named applicants brothers are now living in hiding. However, the witness statement from the first named applicant’s mother states that her eldest son was arrested during the AL’s first term and has never come back home even to this day and they have no idea what has happened to him. When this was discussed with the applicants during the hearings the applicants argued that the first named applicant’s father has not told his wife the whereabouts of her son because if he did she would rush to be with him and that would alert the AL to his location.   The second named applicant also provided evidence that the people who took her brother-in-law away said they were from the police and this could also have contributed to her mother-in-law thinking he was arrested.
205. The Tribunal has considered the applicant’s responses and even if it is accepted, which it is not, that there could be some mix up in terminology between the words “kidnap” and “arrest”, as was also suggested by the first named applicant, the mother’s evidence is that she has no idea what has happened to her eldest son. The Tribunal does not accept that the first named applicant’s father would keep his wife in a perpetual state of grief by not informing her at the very least that her son is in a safe place. The Tribunal also does not accept the second named applicant’s explanation for this confusion, namely that the people who took her brother-in-law away were police. As discussed with her during the hearing it is concerning that this new evidence was only introduced at this late stage in the proceedings and this also causes the Tribunal to doubt the truthfulness of this claim.
206. In view of the above the Tribunal does not accept that the first named applicant’s brother was kidnapped by political opponents or anybody else in 2013 or is living in hiding. In light of the credibility concerns expressed herein the Tribunal also does not accept that the first named applicant’s younger brother is also living in hiding in Bangladesh.
207. According to the letters of support provided by [Mr D] of the Mawlana wing of JI (12/12/21) and [Mr C], a former Chairperson of JI (1/2/22) the first named applicant’s parents have been threatened that there is a warrant, with a shoot on sight order, in place. The first named applicant informed the Tribunal that it can be assumed that warrant is for him. When the matter of the warrant was brought up by the Tribunal neither applicant appeared to be aware of this fact despite them producing these letters in support of their claims. The first named applicant merely maintained that it must be true if it is written in the letters. The second named applicant stated that they are out of the country and so do not know what is going on. She said it is possible that the AL have issued the warrant in order to catch them when they return to the country.
208. The Tribunal has considered their responses but finds it remarkable that the applicants have shown no interest in enquiring about the existence of a warrant particularly as it is claimed there is a shoot on sight order attached to it. Their lack of interest and inaction over such a serious matter further causes the Tribunal to believe that the letters of support which have been produced as evidence of their claims cannot be relied upon.   Accordingly, the Tribunal does not accept that there is a warrant or shoot on sight order in place for the first named applicant.
209. Lastly, as discussed with the applicants during the hearings the Tribunal is very concerned about the fact that they delayed making their applications for protection in Australia until many years after their arrival, particularly as they both claim to have known since 2009 that it was unsafe for either of them to return to Bangladesh. The Tribunal acknowledges that they were granted permanent visas some years after their arrival to Australia but their permanent visas were subsequently cancelled some five years prior to them lodging their applications for Protection visas. The applicants claim they experienced a myriad of problems around this time, including that their migration agent died and their new agent may not have given them the best advice and they had reason to believe that their chances of success on appeal were strong. However, as discussed with them during the last hearing their permanent visas had been cancelled and they were therefore on notice that they might face the possibility of having to return to Bangladesh. Given their long-held fears for their safety in Bangladesh the Tribunal considers it revealing that they did not make any attempts to apply for the protection visas until 2017 when they had seemingly exhausted all other avenues of appeal.   The Tribunal considers the delay in lodgement is significant and it raises serious concerns for the Tribunal about the credibility of the applicant’s evidence.
210. While the Tribunal acknowledges that it would not have rejected the applicant’s claims for the above reason alone, it nevertheless finds it to be a further indication that they have not provided an honest and accurate account of their situation in Bangladesh or their fears of returning to Bangladesh.
211. Having carefully considered all the available evidence the Tribunal finds the applicants have not been truthful about their circumstances in Bangladesh, the problems they faced there and their reasons for seeking protection in Australia. In view of the numerous credibility concerns expressed herein the Tribunal is not prepared to accept that the applicants, their parents or any of their immediate family members were or are members or supporters or office holders of JI. The Tribunal does not accept that the applicants or their family members were harmed in the past on account of their affiliation with JI. The Tribunal does not accept that the applicants left Bangladesh because they feared for their safety in their country for reason of their political opinions.   The Tribunal considers they have fabricated these claims to support their claims for protection in Australia. It follows that the Tribunal does not accept the applicants will become involved with JI in the future or that they will suffer serious harm on return to Bangladesh for reason of their current or future political opinions and/or activities or because of their family members political opinions and/or activities, in the past, at present or in the future.
Fear of being perceived to be wealthy returnees from a Western country
212. The applicants claim that if they return to Bangladesh they will be viewed by their political opponents as having amassed wealth abroad and it will be assumed they will then use that wealth to work against them. They claim therefore that AL people will target them for this reason.
213. As can be seen above, the Tribunal does not accept the applicants have a political profile which is likely to be of adverse interest to the AL for any reason or that they will engage in any oppositional political activity on return home. Therefore the Tribunal cannot see why the AL would be interested in them returning or concerned about their financial status on return to Bangladesh.
214. The Tribunal has also had regard to DFAT’s latest advice[8] which is that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high profile individuals who have engaged in political activities outside of Bangladesh. This is unlikely, however, for returnees without such a profile.
215. In view of the above the Tribunal is not satisfied that there is a real chance that the applicants will suffer serious harm on return to Bangladesh for reason that they will be perceived to be wealthy returnees and targeted by AL, the authorities or anybody else for this reason.
Fear of harm to children
216. The applicants also claim that their son and daughter might be kidnapped, abused, killed and/or that they will grow up and avenge the certain deaths of their parents by the AL because of their support for JI. For the reasons outlined above, the Tribunal rejects the applicant’s political claims outrightly and is therefore not satisfied that their children will encounter harm on return to Bangladesh in connection with their parents or other family members political opinions and/or activities.
217. It is also claimed that the applicants’ children will be deprived of basic facilities which are guaranteed to Australian born children if they are required to return to Bangladesh.
218. The Tribunal considers it likely that the children may well not have access to the same level of services or opportunities in Bangladesh as they enjoy in Australia. However, based on the available evidence the Tribunal does not accept that they will be deprived of basic facilities on account of discriminatory treatment for a refugee reason or that they would be intentionally deprived of basic facilities and services by the authorities for any reason.   The Tribunal considers any deficiencies in the level of services available to them in Bangladesh will be due to the prevailing economic conditions in the country and that their experience would not be dissimilar to other children in Bangladesh.
219. The Tribunal considers it was also implied in discussions that the children might encounter some difficulties adjusting to life in Bangladesh after living in Australia. Relevantly, the Tribunal notes the children are still young and would be returning to Bangladesh in the care of their parents who would be able to smooth their transition into the different cultural and living environment. While it is submitted that they do not speak Bengali fluently the evidence is that they nevertheless understand the language and the Tribunal considers it could be reasonably assumed that they could quickly learn to speak Bengali upon being immersed in the language. The Tribunal is not satisfied that any adjustment problems the children may experience would amount to serious or significant harm.
220. Having considered the available evidence the Tribunal is not satisfied that there is a real chance or a real risk the applicant children will suffer serious or significant harm if they are required to return to Bangladesh for the reasons claimed.
[8] DFAT Country Information Report, Bangladesh, 22 August 2019
CONCLUDING PARAGRAPHS
221. For the reasons given above the Tribunal is not satisfied that any of the applicants faces a real chance of serious harm on return to Bangladesh. Therefore they do not satisfy the criterion set out in s36(2)(a) for a protection visa.

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Ghana there is a real risk that they will suffer significant harm. Therefore, they do not satisfy the criterion set out in s 36(2)(aa) for a protection visa.

223. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
224. The Tribunal affirms the decision not to grant the applicants protection visas.
Tania Flood
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.
…

[2022] AATA 2236

16 May 2022

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