1710210 (Refugee)

[2021] AATA 5232

1710210 (Refugee) [2021] AATA 5232 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710210

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Luke Hardy

DATE:18 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 November 2021 at 2:59pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party (BNP) – family involvement in BNP – threats of harm by Awami League supporters – victim of false charges – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [named], who is a citizen of Bangladesh, has for the most part been in Australia for over ten years. He did not bring his protection claim to light until around six years after his first arrival here.

3. [The applicant] first arrived in Australia on a student visa [in] April 2011.  The visa was valid until 13 September 2012. [The applicant] departed Australia [in] April 2012, the passport submitted in this matter showing that he travelled back to Bangladesh where he stayed for four weeks, entering and departing that country legally. [The applicant] appears to have continued studies after returning to Australia [in] May 2012, applying for a further student visa which was granted on [date] December 2012.

4. On [date] December 2012, two days after being granted the further student visa, which would have allowed him to remain in Australia for the purposes of study until 5 November 2014, [the applicant] again flew to Bangladesh. His passport shows that he entered Bangladesh through Dhaka International Airport on [date] December 2012 and stayed for just over two months until formally departing on [date] February 2013. He arrived back in Sydney on [date] February 2013 and evidently continued with his studies.

5. On [date] February 2014, [the applicant] again departed Australia for Bangladesh, arriving at Dhaka airport on the same date. He stayed just over a month, departing by air on [date] March 2014. He arrived in Australia the next day and appears to have resumed his studies.

6. [The applicant] applied for a further student visa on 28 October 2014 but his was refused on 7 July 2015 due to a failure to meet financial requirements after a purported bank statement was reportedly found to be unreliable.

7. When [the applicant] was refused this further student visa, he sought review by the AAT, differently constituted, on 24 July 2015. The Tribunal affirmed the refusal on 7 April 2016.  

8. [The applicant] then commenced proceedings on 5 May 2016 in what was then the Federal Circuit Court but failed to appear or be represented on the day of the Court hearing, which was [date] February 2017, and his application for judicial review was dismissed with costs.

9. A month later, on 14 March 2017, [the applicant] lodged a protection visa application and a week later was granted a Bridging C (030) visa permitting him to work for remuneration.

10. As noted, the delegate refused to grant the visa on 4 May 2017. This was on the basis of a number of [the applicant]’s claims being found to lack credibility and other claims not meeting the “real chance test”. [The applicant] then sought review of the delegate’s decision and the matter was constituted to me. He remains on a bridging visa that permits him to work.

11. [The applicant] appeared before the Tribunal by telephone on 9 November 2021. The hearing was held during the COVID-19 pandemic in the early weeks following lockdown in NSW, but before the Tribunal had yet re-opened for in-person hearings. In the circumstances, I exercised the Tribunal’s discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, wishing to avoid undue delay to the matter, already more than four years since the review application was lodged, if the hearing were not to be conducted by telephone.

12. [The applicant]’s brother [Mr A] attended the hearing as a witness by telephone from Dhaka in Bangladesh. A Mr [B], who resides in Australia, also gave witness evidence by telephone.

13. [The applicant]’s adviser, a registered migration agent, also attended the hearing by telephone as did two witnesses. The adviser told me he would need to leave the hearing at 1:45pm to attend to another matter. The hearing ran its course from 10:30am to 1:40pm. Nothing was rushed as there was always the option of adjourning to another day if necessary.

14. The hearing was facilitated by an interpreter in the Bangla-English medium.

15. I checked with [the applicant] that he was happy to proceed by telephone. He stated that he had no objections to proceeding by telephone. There were no audio issues preventing clear communication. The hearing paused briefly about three times so that the interpreter could attend to the needs of her young child. I am confident that this was not to the detriment of [the applicant] being able to give evidence. Overall I am satisfied that [the applicant] was given a genuine opportunity to present evidence in this matter.

    CRITERIA FOR A PROTECTION VISA

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

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

18. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

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

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

    Mandatory considerations

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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 issues

22. The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. 

23. For the following reasons, I have concluded that the decision under review should be affirmed.

    Original claims to the former Immigration Department

24. [The applicant]’s original protection visa application includes his application form, a 26-page submission from his adviser discussing potentially relevant country information and legal issues, and a one-page statement of claims:

    I seek protection in Australia on the basis of my political profile and activities supporting the
    Bangladesh Nationalist Party. My family and close relatives are BNP supporters and members
    actively involve[d] in promoting the principles of the BNP. In my view BNP is the only party which promotes Bangladesh nationalism and implement policies for the betterment of the society. My father was [an official] for three times supported by the BNP from [Union 1]. He then contested for [an Upazila 1] post with the support from the BNP in 2009.

    Unfortunately due to the election rigging of the Awami League, my father lost the election. In
    1996, My cousin [named] contested under the [named] ticket for Member of Parliament
    My elder brother Mr [C] became [an official] of [Division 1] [Upazila 1] and still he is holding the position. My another brother named [Mr A] hold the posit[i]on of [position] of [Union 1] JCD when I was studying. Later I became [an official] and hold the position of my brother. During 2008 general election, my family and I actively involved in supporting the BNP candidate [Mr D] who contested from our electoral district [District 1]. Unfortunately, he lost the election and the Awami League candidate Mr [E] won the election. Mr [D] obtained [number] and Mr [E] obtaiuned [number] votes.

    I came to Australia [in] April 2011 on a student visa. I completed Diploma in [Discipline 1] in
    2012 and then enrolled for Advanced Diploma in [Discipline 1]. I completed that course in 2013. I then enrolled for Bachelor in [Discipline 1] at [named] Institute and completed that
    course in 2015. My intention was to complete my studies and apply for permanent resident visa
    under the Skilled or work related category. In the meantime, I applied for a further student as I
    wanted to do Masters in [Discipline 1]. However, DIBP refused my student visa on
    15 July 2015 and I applied to the Tribunal. Some time in April 2016, AAT affirmed the decision
    and I then sought Judicial review. On 15 February 2017, I could not attend the hearing and the
    FCC dismissed my application. In the mean time, I inquired from my family whether it is safe me to return to Bangladesh. My family advised not to come because of the case against me which was a false politically motivated case filed in 2014.

    In 2014, I went to Bangladesh and during my time I was threatened by the Awami League local
    leaders [named]. After some time of my returned to Australia, my family
    informed me that the police was looking for me as they understand that the Awami League
    activist has lodged a false case against me. I was told that I was accused in involvement in anti-government activities.

    In Australia, I continue to support and involve with the BNP activities with the BNP Australia
    chapter.

    I fear due following reasons, I would face serious harm if I returned to Bangladesh.

    a. Due to my political opinion supporting the BNP.
    b. Due to my political activities supporting and promoting the BNP.
    c. Due to my family’s profile as a BNP activists.

    I fear it would be impossible for me to get effective protection from the police because the RAB
    and the police act with on the instruction of the Awami league. I fear that BNP activist face harm throughout Bangladesh and the harm is nationwide.

    Accordingly I seek protection in Australia.

25. [The applicant] told the Department that he was born on [date] in [Upazila 1], a sub-district of [District 1], in the environs of Dhaka.

26. I note that around 2011, the [Upazila 1] [sub-district] of [District 1] was divided into [named] Municipality and [number] “union parishads” including [Union 1]. The union parishads are subdivided into [number] mauzas and [number] villages.[1] Evidence in this case indicates that [the applicant]’s home village sits within the [Union 1] parishad of the [Upazila 1] sub-district of [District 1].

    [1] [Source deleted]

27. [The applicant] said he was the youngest of several brothers. He mentioned having [number] sisters. He said he lived in the same house in [Upazila 1] from [birth] to August 2002. The address of the house was given as care of [named] post office. [The applicant] said he spent the period August 2002 to July 2004 residing in another part of Dhaka: this period coincides with when he changed colleges after completing secondary school. He claims he returned to live in [District 1] in 2004 and stayed there until he came to Australia in 2011.

28. In his protection visa application form, [the applicant] said he ceased being a student in February 2010, when he graduated from college with a bachelor degree in [Discipline 2], just over a year before he came to Australia.

29. Also in his protection visa application form, [the applicant] said he visited Bangladesh in April 2012 for the funeral of his mother. He did not provide reasons in that form for his two further visits. He later indicated that he visited in late 2012 to attend his father’s funeral. He claimed to have been threatened by Awami League (AL) members during his visit in February-March 2014. However, he did not apply for protection on or soon after returning to Australia. He took more than another year to do this.     

30. Included in [the applicant]’s protection visa application are six pages of a purported 30 November 2014 complaint to, or by, police about [the applicant]. These pages, translated into English, apparently comprise the “false case” described in by [the applicant] in the statement of claims, cited above. The purported allegations made to the police are that [the applicant] and around 60 other named individuals are connected to a haul of unexploded illegal incendiary devices, other illegal weapons and other material purportedly confiscated at a demonstration in a specifically named location in Dhaka on “[date]/11/2013,” i.e. a year before the report of complaint was purportedly made. I note, meanwhile, that [the applicant] was not in Bangladesh in November 2013 and would likely be able to prove that to a Bangladesh court and/or other authorities with his passport.

31. As noted, [the applicant] claimed that his family told him of the allegations or charges around the date of the purported police document. I note that 30 November 2014 fell eight months after [the applicant]’s last departure from Bangladesh, and also around the time he lodged the defective student visa application. Still, this was more than six months before [the applicant] lodged the protection visa application.  

32. The primary application in this matter also comprises a number of supporting letters. One is a 12 April 2017 letter attesting to his having been [an official] of the “[Union 1]” chapter of the JCD from November, 2009 to March, 2011” and, interestingly, asserting that he has continued “holding the post till [the] present [day].” This letter is purportedly signed by someone identifying as [an official] of the [District 1] chapter of the JCD. I note that this is not a letter from the actual chapter in which [the applicant] claims to have served.

33. A number of letters, all dated April 2017, respectively assert that [the applicant]’s brothers and late father were [office bearers] of BNP support body at other times.

34. There is another letter, dated [in] April 2017 and signed by [an office bearer] of the Bangladesh Jatiotabadi Dal (BNP) Australia:

    This is to certify that [the applicant] … is personally known to me since 25th March 2015 and now he is working as an executive member of BNP convening committee; Our organization (BNP) has been
    working under the umbrella of the mainstream community. One of its main objectives is to
    foster Bengali culture within the mainstream community for Bengali native speakers in
    Australia.

    I am aware [the applicant] has lodged an application for a protection visa with the
    Department of Immigration and Citizenship of Australia, while observing that violence has
    been endemic in Bangladesh’s political culture and in my experience has given rise to many
    claims for protection. As an opposition activist [the applicant] and his family participated
    in various antigovernment rallies and demonstrations to protest against undemocratic and
    inhuman torture on political leaders and activists including reporters and editors by the
    current ruling government in Bangladesh: To the best my knowledge he and has family
    suffered severe violent acts by the ruling party activists and I also believe if he returns back
    to Bangladesh his life could be in jeopardy like other members of the opposition party.

    He has been involved with political and community activities since his arrival in Australia and is now familiar with the Australian culture. To the best of my knowledge [the applicant] is a hardworking, punctual and sincere social worker. He has displayed his honesty and integrity towards his responsibilities who can be a potential asset for Australian multicultural society …

    Evidence to the delegate

35. The following is a summary of oral evidence that appears in the delegate’s decision record, which I present here as background:

    [The applicant] has never worked in Bangladesh. In Australia he has worked as a [occupation] in a few places. He has worked continuously since arriving in Australia in April 2011. He stopped work in February 2017. He is living off his savings and his family sends him money.

    • His main reason for leaving Bangladesh was to study more and apply for permanent
    residence. The main reason he wishes to stay in Australia now is because his brother told him
    that he was involved in a politically motivated case. At the end of 2014 his elder brother told him that there was case against him. The police went to his brother’s home in [District 1] and told him there was a politically motivated charge against the applicant. There is a case against him but he is not sure what the charge is as he has been away from Bangladesh. He recently asked for a copy of the charge.

    • He returned to Bangladesh twice - in April 2012 when his mother passed away and in
    December 2012 he returned again when his father fell ill and passed away. On both
    occasions he had no problems as he was staying in Dhaka. From February - March 2014 he
    visited his family in [District 1]. When he was there he was involved in organising activities
    with BNP local committee. The leaders in the area were threatening him because of his
    involvement.

    • When he left the position [of] the [Union 1] JCD, he was not replaced.
    Currently [another officer] runs the activities of the organisation. His name still appears as
    [an official] on paper. When he was [an official] of JCD he tried to recruit other students to join
    and supported local BNP candidate, [Mr D]’s campaign. There were 57 members in
    JCD branch, its objectives were economic improvement, democracy and faith in Allah. New
    members had to be Bangladeshi nationals and over 18 years of age. Main difference between
    the BNP and Awami League is the BNP has supports freedom, reducing the population and
    economic improvement. The Awami League is corrupt, its services are involved in corruption,
    they are killing BNP leaders and there is no development.

    • When he was [an official] of JCD he was threatened by government supporters. One night he
    was on a motorbike when some men tried to stop him; he quickly passed through them when
    he realised they may have been armed. He will be physically harmed and arrested if he
    returns to Bangladesh, furthermore he cannot get a job and will have to pay money to local
    leaders. As there is a case against him, even if he moves to different area, the police will find
    him.

    • In Australia he made contact with Mr [B], [an office bearer] of BNP Australia which is based in
    [location]. He goes there once a month, sometimes 2-3 times a month.

    • Originally he planned to study and apply for Skills migration but his Student visa was
    cancelled as some documents (bank statements) were assessed as not genuine. After the
    end of the judicial review his family said it was dangerous as there was a case against him
    and that he should remain in Australia. His brothers are still active in BNP. They have had no

    problems.

    The applicant also claimed that he cannot return to Bangladesh because his brother advised him that he was involved in a politically motivated case. He provided copies of police reports in support of this claim. At interview the applicant stated, when questioned about the case against him, that he was not sure what the case involved as he has been away from Bangladesh ...

1. In reaching my findings below, I have taken care not to rely on any information recorded by the delegate in his decision, as [the applicant]’s adviser did not follow the Tribunal’s direction to submit the decision record with the review application. I did ask [the applicant] to tell me, in two particular instances, what he might have recalled telling the delegate and noted his replies.

   Independent country information

2. The Department of Foreign Affairs and Trade (DFAT) makes the following observations[2] about the political situation in Bangladesh:

   3.16   Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists ...

   3.79   Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.

   3.80   BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.

   3.81   Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.

   3.82   DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.

   [2] DFAT, Country Information Report Bangladesh (22 August 2019)

3. DFAT makes the following observations[3] about returnees to Bangladesh who may have had some involvement with BNP or other opposition political associations in foreign countries:

   5.29   Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted ... DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.

   5.30   DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.

   [3] Ibid.

4. DFAT[4] has also provided a report on the prevalence of document fraud in Bangladesh:

   5.39   The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.

   5.40   It is common for Bangladeshis to acquire documents through an agent, or ‘middleman’. This individual will make an application for documents on behalf of the person that has requested them, a process which may be subject to fraud. It is therefore possible that the person seeking the document does not know that their documents are fraudulent. The risk involved with the use of middlemen may be unavoidable, as some sources report that it is not possible to get documents without the use of such an agent.

   5.41   Passport fraud is a particularly common type of fraud, given many Bangladeshis travel or are trafficked abroad in order to get work. DFAT is aware of Rohingya obtaining genuine Bangladeshi passports by fraudulent means, such as paying bribes. Once these passports expire they cannot be renewed, which has led to some high profile cases of stateless people abroad unable to return, or being arrested or detained by Bangladeshi authorities upon return. Some Bangladeshis reportedly try to leave on fraudulent passports via India, where the bona fides of the passport are more difficult to check. These travellers may be detected by Indian immigration at inward or outward borders. Bangladeshi immigration officers at the border may lack the skills and expertise to identify fraudulent documents on entry or exit. Attempting to obtain a genuine passport without corruption can be difficult as each step of obtaining documents may require bribes. For example, obtaining a passport might require a police certificate, which could require a bribe. A fraudulent document can be more easily detected than a fraudulently obtained genuine document.

   5.42   Fraudulent NICs are harder to produce as they contain a plastic chip with biometric information embedded. A genuine, but fraudulently obtained document may contain some correct biometric information. Authorities can also check NICs on a national database, which may provide some protection against fraud.

   5.43   Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.

   5.44   Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents, can often be difficult to verify through formal channels. This is for a variety of reasons, including expectations by some officials of facilitation payments, or genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh.

   [4] Ibid.

   Material submitted to the Tribunal prior to the hearing

5. [The applicant] submitted a copy of a 30 October 2021 letter from his brother [Mr A], who is his the youngest of his [elder] brothers. This letter says the [applicant’s] family is well known as a family that actively supports the BNP. It discusses the local constituency and campaign activities of their late father. It says that [the applicant] was [an office bearer] of the local [Upazila 1] chapter of the BNP’s Jatiyatobadi Chhatra Dal (Youth Wing; JCD) from 2009 until 2011, which was when [the applicant] came to Australia. The letter states that when [the applicant] returned to Bangladesh in February-March 2014, the police there filed a false case against him. It says [the applicant] joined a protest in Australia against Bangladesh Prime Minister Sheikh Hasina’s visit here in 2018, and adds that the protest was described on Facebook. It says that he is involved in a BNP association in Australia. It says that their older brother was arrested and held by police for two days before being released (no conditions mentioned) in 2018.

6. Another letter also dated 30 October 2021 asserts that [the applicant]’s brother [Mr A] has been [an official] of the local BNP chapter.

7. A third 30 October 2021 letter purports to be from the BNP’s “[Upazila 1] Branch” [official], and contains passages of text that are almost identical to the text of brother [Mr A]’s letter discussed above, give or take a few changes to reflect the fact that the authors are different people.

8. [The applicant] submitted some screen capture evidence of his attendance at zoom-style meetings with members of the BNP Australian chapter. He also submitted some photographs of his participation in a small group protesting the state visit in Australia by Bangladesh’s Prime Minister Sheikh Hasina in April 2018.

9. There is a 76-page submission from [the applicant]’s adviser which includes some media reporting of the political scene in Bangladesh, particularly relating to the enmity between the Awami League, in government, and the BNP, in opposition. Some of the articles refer to mass arrests of BNP activists in connection with events such as arson attacks. There are also some recent human rights reports including one from Human Rights Watch discussing authoritarian behaviour on the part of the AL government.

10. There is a more recent letter from the BNP Australian chapter. This one asserts that [the applicant] is its [deleted position] and is actively engaged in its political activities such as joining all meetings convened by the association. The author of the letter, its [official] Mr [B], says he checked with a named BNP office bearer in [Upazila 1] to confirm [the applicant]’s “political involvement.”

    Evidence at the Tribunal hearing

11. I asked [the applicant] about the evident delay in his having brought his protection claims to light. He first arrived in Australia in 2011. He had voluntarily returned to Bangladesh three times and had not been prevented from departing legally. He was notified of a student visa refusal in 2015. His protection visa application was based on information he claimed to have received in later 2014, and yet he did not lodge his protection visa application until 2017 after his judicial review application, arising from the refusal of his student visa, was thrown out.

12. In response to this question, [the applicant] said that he was minded at the time to pursue his studies and apply to migrate on skilled grounds.

13. I asked [the applicant] if he could recall whether, in the course of giving evidence in support of the present protection visa application, he had ever told an officer of the Department that his last student visa application had been refused because of a finding that he had provided false information in the form of a falsified bank statement.

14. In reply, [the applicant] said he had mentioned this to a Department officer. I asked him how he had come to provide false information in support of his student visa application, and he said that he had received the document from Bangladesh and had not himself detected that the document was fake. He said he thought it was his brother’s bank statement. He said he did not know that the document was a fake. I asked him if someone might have falsified the information perhaps in order to help him obtain the student visa, and he said he did not wish to comment.

15. I asked [the applicant] about the 12 April 2021 letter from [an official] of the JCD [District 1] chapter attesting to his [named position] of a different chapter of the same organisation. In particular I asked him when he ceased to be a student in Bangladesh and he said he did so in 2011 when he first came to Australia. I put to him that in his protection visa application form he said he ceased to be a student in 2010 and he said that the information in the form was incorrect. Proceeding on the basis that [the applicant] ceased to be a student in Bangladesh when he left that country in 2011, I asked how a non-student could remain [an official] of a campus-based student organisation for or more years after leaving the institution where it was based. In reply, he said that elections for JCD office bearers are held “every three to five years.” He said that the AL did not know that he had left Bangladesh because he was still nominally [an official] of his former campus chapter of the JCD. He indicated that this erroneous understanding on the part of the AL was why they had lodged a false claim against him in 2014. Meanwhile, there is no suggestion in [the applicant]’s evidence that any of the purported NBP/JCD office bearers who wrote letters in his support, whilst evidently in office when they did so, have suffered any potentially significant harm, let alone due to their official positions in the BNP/JCD. 

16. I considered this explanation closely, but it struck me as being quite problematic. If BNP’s JCD elections for office bearers are held every “three to five years,” as [the applicant] claimed at the Tribunal hearing, then the post of [deleted] of his campus chapter of the JCD would have ended and been up for election between 2013 and 2015. This means it would have been impossible, or at least unlikely, that [the applicant] would have been able to hold the post until 2017, due to the position not having yet been thrown open to a vote, as 2017 was already eight years after 2009.

17. I asked [the applicant] if someone else had at least since 2017 been elected replaced him as the nominal [official] of the “[Union 1]” chapter of the JCD and he said, “Yes.”

18. I asked [the applicant] if he knew the author of the 12 April 2017 JCD letter personally and he said he did. He said they had been acquainted while he was still at college in Dhaka.

19. [The applicant] told me that he spent time staying in his family home in [Upazila 1] during all three visits back to Bangladesh (2012, 2012-13 and 2014). Although this appears to contradict earlier claims about not having stayed in [Upazila 1] but, rather, having stayed in Dhaka during the first two visits, it seems to me that that the real significance of the information is that [the applicant], according to his evidence at the hearing, was able to spend more than two months residing in his family home in [Upazila 1] without facing any potentially relevant problems. I asked him what contact or involvement he had with the BNP during his third visit home. In reply, he said he went to “internal” meetings and also visited campuses along with other BNP supporters for “internal” talks with JCD members about increasing recruitment into the JCD. He indicated that this activity might have alerted the AL to his presence in Bangladesh.

20. I asked [the applicant] what if any problem encounters he might have had with any socio-political adversaries during his visit to Bangladesh in 2014. In response, he said he said he was walking alone on the street, not involved in any political activities, when some AL people stopped him and spoke to him menacingly. At the hearing he gave two conflicting versions of what he did next: one, he said he fled his home district for Dhaka and then left the country; and, two, he said he continued performing activities with the BNP locally. When he said he fled to Dhaka, he told me he stayed with his sister at her home there, before flying back to Australia. I asked him if he had any other reason for staying with his sister during his return visit to Bangladesh, such as a desire to spend some time with her, being closer to the city and closer to his point of transit, the airport. In reply, he said he did not. He said he only stayed with his sister to avoid contact with AL supporters. However, he also said he had stayed with his sister for a few days upon arrival in Bangladesh in 2014. Stays at her house thus bookended the visit, as it were, on arrival and departure. Overall, I did not get the sense that [the applicant] gave a detailed, consistent, plausible or otherwise credible account of his time in Bangladesh in 2014.

21. I invited [the applicant] to discuss the purported police allegations, as laid out in the document purportedly dated 30 November 2014. Taking up the opportunity, [the applicant] said that the police report accused him and others of having vandalised some cars by “breaking” them, although I note that the document submitted does not say anything like this. I asked him how many others were charged along with him and he said, “Thirty.” This was incorrect, as the purported charges indict about 60 persons. I asked [the applicant] if he knew any of the other people named in the purported police document, and he said he did not. I asked him if he had paid attention over time to the progress of the “false case’ against him. In response, he said, “As far as I know it is pending … As this is a political case, it is pending for years and only moved [forward] when there is an election.” He said that if the BNP were to win government the case would be dismissed. I put to [the applicant] that he did not appear to have paid much attention to the charges against him, however false he said they were. In reply, he said he did not take the allegations seriously because (as I have also noted) he was not in Bangladesh at the time of the alleged offences and would be able to prove that. I put to him that I was concerned that he had nevertheless portrayed the charges in his original protection visa application as though he did take them seriously, at least at that time. In response, he changed his position somewhat and said he still takes the charges seriously because he will be detained at the time of entry into Bangladesh and held until he can demonstrate with his passport, as he expects to do, that he was not even in Bangladesh on [date] November 2013.

22. I put to [the applicant] a concern that he did not have an accurate knowledge of what the police document actually contained. I went through the details in which his claimed recollection of its content differed from what was actually there. In reply, he said that lately he had become depressed about his future prospects and that this affected his mind. I asked him if he had also been unable to tell the delegate what was in the purported police document and he said, “Possibly.”

23. I asked [the applicant] how the document reached him in the first place. He said he had heard from his brother that there was a case lodged against him with the police. He said the police came to the family home looking for him, [the applicant]. Asked if the police could easily have established that he was not in Bangladesh, [the applicant] said that, because he had been in the country earlier, the AL might have told the police he was still there. He said his brother then sent the police document to him. He said it originally came from a police station.

24. I put to [the applicant] that according to DFAT it is common and easy for people to obtain fraudulent police reports in Bangladesh. I told him that I had not at this stage concluded that this document was a fake and that I was open to considering his comments. In response he said he had no comment. He then said he did not want to comment because, as far as he knew, this was a genuine document.

1. I asked [the applicant] if he had said to the delegate that no relevant harm had ever come to his family. In reply to me he confirmed that at the time of his protection visa interview, the members of his family had suffered no relevant harm. He said however, that his eldest brother had been arrested one evening in 2018, the year following his protection visa interview. He said his eldest brother, [Mr C], had been detained by police for two days and then released without conditions. He said he did not know why his brother was released. He indicated that this was the only instance of a family member having been mistreated. He said his brother was walking outdoors at night when he was arrested. He said he was involved in anything political at the time but had been campaigning (at some unspecified stage) prior to the incident and continued to campaign for the BNP afterwards, apparently without attracting any negative treatment.

2. [The applicant] identified his eldest brother, [Mr C], at one stage of the hearing as the brother who obtained and sent the purported police report. [Mr C] himself did not give any evidence in this matter. The brother who wrote the supporting letter for [the applicant] and who gave evidence by telephone at the hearing was another brother, [Mr A], the youngest before [the applicant] himself.

3. [Mr A] described his occupation and living circumstances, in particular the fact that he still lives in the family home in [Upazila 1]. He said that all but one of the siblings still live nearby, one of them, presumably one of the [sisters], living in Dhaka, [number] kilometres away. [Mr A] said he is not currently working having returned from [country] where he stayed form 2017 to 2019 [working]. He said his other brothers are all working. He acknowledged tat the family is just getting on with life.

4. [Mr A]’s evidence was frequently confused. When I asked him about how the family became aware of the police report, he spoke of the time the eldest brother was arrested in 2018. He said there was a case against [the applicant] at the time that he came home in February-March 2014, repeating what he had said in writing, but not appearing to agree with [the applicant]’s own evidence about the charges not being made until November 2014. He also said at one stage that it was he himself who obtained the police report that has been submitted in evidence, but later said that he was not sure and that it could have been BNP leaders who might have obtained it and sent it here. He said he was not at home when the police came to arrest [the applicant] (in 2014). He indicated that the police arrested the eldest brother [Mr C] at home in 2018, although it is noted that he also explained that he was out of Bangladesh at the time.

5. I asked [Mr A] if he himself is involved in BNP activities, and he said he is. Asked why he seems not to suffer harassment, he said that the difference between [the applicant] and himself is that [the applicant] has the false charges against him. This did not seem to make much sense, however, since the “false” charges are supposedly a form of harassment for being involved in BNP activities in Bangladesh. I asked him of anything else had happened besides the 2-day detention of [Mr C] and he said, “No. We are concerned for [the applicant] because [the AL] are serious against him. [They want to] kill or jail him.”

6. Generally, [Mr A]’s oral evidence was confused and unhelpful. He did not appear to indicate that he was an eyewitness to anything of much significance in this matter. It seemed very hard for me to give his oral evidence much weight either way, whereas his written evidence contradicts [the applicant]’s account of when the charges came into existence, apparently having nothing to do with the period of February-March 2014 when he was back in Bangladesh.

7. [Mr A] did stress that his family is well-known in the area as a family of active BNP supporters.

8. I asked [the applicant] if he agreed with his brother’s evidence, and he said that his brother might not have understood some of my questions. He reiterated that the purported police documents were sent to him by his eldest brother, [Mr C].

9. I then called the witness Mr [B]. He said that [the applicant] had been with the Australian chapter of the BNP since 2015 and was currently [in a certain role] of the association in charge of a [specified] group in the association. He said that [the applicant] organises events like the anniversary celebration commemorating the founding of the Jubodal (another BNP youth wing) and inviting members to attend zoom meetings, such as one at which a BNP leader spoke about the founding of the Jubodal and calling for members abroad to support members in Bangladesh.

10. Mr [B] told me he believed that members of [the applicant]’s family have been tortured. When I asked for more specific information, he merely said that there was a police case filed against [the applicant]. I asked him for examples of what he called torture and he said “harassing.” I put to him that harassing is a term for treatment that falls much short of torture. Then he said that at election times the (AL) government harasses people. He said that [the applicant] had told him about one brother but was unable to recall detail. 

11. [The applicant]’s adviser asked me to ask Mr [B] what he thought [the applicant]’s future in Bangladesh would be like, given his profile as an active BNP member in Australia, and I did so. Mr [B] said that if democracy prevails [the applicant] will be a leader in Bangladesh. He said that it will be well known in Bangladesh that he is involved with the BNP in Australia and that this will lead to his being arrested on arrival in Bangladesh. I note that by contrast, [the applicant] himself said that the false charges will lead to his arrest and detention until such time as he can prove that he was never in Bangladesh at the time of the alleged offending.

12. I asked [the applicant] if he agreed with the evidence given by Mr [B] and he offered no significant comments. I noted that Mr [B]’s oral evidence was more or less the same as what he had said in his letter.

13. Towards the close of the hearing, [the applicant]’s adviser asked me to consider [the applicant]’s profile as at the time of decision, and assess whether it might give rise to a real chance of his being persecuted in Bangladesh. Here he seemed to be emphasising the importance of assessing the potential implications of [the applicant]’s activities since arriving in Australia. He also asked me to consider [the applicant]’s family profile.

    S.5J(6) of the Act

14. Because [the applicant] has engaged in potentially relevant activities in Australia, I am required to have regard to s.5J(6) of the Act:

    (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.

15. Given that I have no difficulty accepting that [the applicant]’s family has a history of supporting the BNP, and given that there is evidently a social aspect to joining the BNP chapter in Australia, I conclude that [the applicant] has engaged in the conduct of joining that chapter in this country for reasons other than merely for the purpose of strengthening his claim to be a refugee. Accordingly I do not disregard that conduct for the purposes of assessing whether he has well founded fear of being persecuted for one or more of the five reasons mentioned in s.5J(1)(a).

    Post-hearing submission

16. The Tribunal received an email from [the applicant]’s adviser just after the hearing concluded on 9 November 2021. In that email, the adviser informed the Tribunal that he intended to lodge further submissions by 23 November 2021. His came as somewhat of a surprise to the Tribunal as a request for additional time had not been made at the hearing, let alone reasons given as to why it might be needed. The Tribunal contacted the adviser’s office to express concern about the form of all this, nevertheless granting until 17 November for further submissions.

17. The Tribunal received a submission from [the applicant] through his adviser on 17 November 2021, comprising a short letter from a general medical practitioner and a one-page statement from [the applicant] himself.

18. [The applicant], in his own statement, said he was affected by depression and stress that had a significant effect on his ability to give evidence at the hearing. He asked that inconsistencies in his evidence be treated as minor ones. He said he should not be expected to remember 100% of the facts relevant to his case. He said, for example, that when I asked him to tell me approximately how many others were charged with him, according to the police report, I did not ask him for the precise number, and that when he said “thirty,” he was giving what he considered to be an approximate number just as he had been asked to give. I have considered this explanation and give it very little weight, as thirty is half of sixty, making it irrational to present thirty as an approximation of sixty, unlike, say for example, fifty-eight or sixty-one.

19. [The applicant] went on to say that he may never have an opportunity to have the charges against him dropped as he fears the police will never bring the matter to court and will never drop the charges themselves. This he indicated he might be detained indefinitely.

20. [The applicant] said in his statement that I did not ask “relevant and related questions” about his activities in Australia, but this is not true. He referred to photographs of protests he attended in Sydney and said these have been widely circulated on the Internet and in Bangladeshi newspapers. He said that there are AL informers in Australia passing on information about BNP activities here and that he, being [an official] of the local BNP support group here is bound to be known to AL leaders who will have him killed in the event of return to Bangladesh.

21. [The applicant] said that Mr [B] had obtained, from “BNP leaders” in Bangladesh, confirmation of his current profile there. I recall Mr [B] saying in his 2017 letter that he had himself ascertained members of [the applicant]’s family “suffered severe violent acts by the ruling party activists,” something that [the applicant]’s own evidence showed not to be at all true, since the arrest of his eldest brother did not occur until 2018. I recall Mr [B] telling me that he considered mere harassing to be “torture.” I also recall Mr [B] being unable to recall what was said to have happened to [the applicant]’s brother, presumably [Mr C].

22. The doctor’s letter is dated 10 November 2021, which was the day after the hearing. In the letter, the doctor says that [the applicant] presented on that day claiming “stress, depression, [and] lower back strain” that had become worse since 8 November 2021, the day before the hearing. The doctor also said that in his opinion [the applicant] was indeed suffering from these symptoms and that this meant that he was “unfit to continue his usual Occupation Wednesday, 10 November 2021 TO Sunday, 14 November 2021 INCLUSIVE.”

23. I have considered whether the information in this letter means that [the applicant] was prevented from giving meaningful and credible evidence at the hearing on 9 November 2021 due to circumstances beyond his control. In considering this, I recall that [the applicant] said he was happy to proceed with the hearing, when I asked him, and did not ask for it to be paused or adjourned at any time. Meanwhile, as noted, the doctor’s letter was written after the date of the hearing and does not address the hearing process at all, instead dealing only with whether [the applicant] should be expected to work. Overall, I give the letter very little weight. I am not satisfied that [the applicant]’s evidence-giving at the Tribunal hearing was negatively affected by mental or physical health issues or by circumstances outside of his control.

    Findings in relation to s.36(2)(a) of the Act

24. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.

25. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]

    [5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [6] Sun v MIBP [2016] FCAFC 52 at [69].

26. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[8]

    [7] MIMA v Rajalingam (1999) 93 FCR 220.

    [8] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

27. In the present case, I accept that [the applicant] comes from a family of BNP supporters, both past and present.

28. I accept that [the applicant]’s late father held posts in local administration on behalf of the BNP.

29. I accept that [the applicant]’s eldest brother [Mr C] became [an official] of [Division 1] for [Upazila 1] and was still holding that position at the time [the applicant] lodged his protection visa application. I accept that [Mr A] was formerly [an official] of the [Union 1] parishad JCD. Notwithstanding these public BNP profiles, and notwithstanding the acrimonious relations between the AL and the BNP at various levels of Bangladeshi society, [the applicant]’s evidence indicates that there has been very little adverse treatment of any members of his family until very recently. He was able to finish his secondary education and, according to his protection visa application, he completed a bachelor degree before coming to Australia, and whereas he more recently denies the second claim, he still had an evidently stable existence throughout his life in Bangladesh up to when he came to Australia in 2011 for the purposes, he said, of studying and during most if not all of his three voluntary visits back to that county between 2012 and 2014. 

30. I give some weight to the fact that, although various family members have given active and/or vocal support for the BNP, there is not, according to [the applicant], a long history of politically-motivated harm suffered by any member of the family, with the purported exception of what happened to [the applicant] in 2014, with the verbal threats and the police report, and to his brother [Mr C] over two days back in 2018. Suggestions in the evidence before me about a history of “torture” suffered by family members did not stand up to close examination at the hearing, and I give those suggestions no weight. Noting that [the applicant]’s father was three times elected to the [Union 1] local council as a BNP candidate, and later stood as a candidate for [District 1], I infer that the area in which [the applicant] lived has been more or less of a BNP-leaning constituency for many years.

31. I give no weight to the alleged incident in which [the applicant] says he encountered some people on motorcycles on some occasion in his past and thought they might be armed with weapons and also thought that they might be AL supporters. All of these observations appear to have been merely speculative apprehensions and, in any event, it was a completely isolated event in which nothing evidently ended up happening.   

32. I accept that [the applicant] was [an official] of the BNP’s JCD [Union 1] parishad chapter. However, I do not give this fact much weight in this case overall, given that the body over which [the applicant] presided was merely a group for students in a small local council administration area, and given that [the applicant] ceased to be its [official] when he ceased to be a student there, before coming to Australia. As to the suggestion that his name was left on letterheads, etc., as [an official] and was still there in 2017, causing the AL to assume he was still in control and needed to be stopped, I do not accept that this claim is truthful, notwithstanding that a person [the applicant] calls a friend and former fellow student (the then [office bearer] of the [District 1] BNP chapter) supported it in his 2017 letter. As discussed, I disbelieve the claim because [the applicant] suggested his name would not have been replaced until new elections were held “three or five” years after the previous ones. Just leaving aside how vague [the applicant] was about the election cycle for a body in which he stood for office, this all seems a strange way to run a student body, as it is in the nature of tertiary education institutions the world over that students come and go, as [the applicant] did in 2011. More significantly, though, since [the applicant] was elected in 2009, the next elections, according to him, would have been in 2012 or 2014, making it impossible for him to remain nominal [official] up to 2017, unless he were re-elected in absentia, which is certainly not what he claims.

33. I give weight to the fact that, for the whole time [the applicant] was [an official] of the local JCD up to 2011, there are no claims of potentially relevant harm. This was a period when [the applicant] was visibly present in the role he claims to have held and yet nothing of note happened to him.

34. I also give weight to the fact [the applicant] did not seek asylum in Australia after arriving here in 2011, 2012 or 2013, or even soon after 2014. I give weight to his claim to the effect that his purpose in coming to Australia (and continuing to be here) was “to complete my studies and apply for permanent resident visa under the Skilled or work related category.” I give weight to the fact that [the applicant] voluntarily returned to Bangladesh three times after his time as a local JCD [official] (up until 2011) and was able to depart the country legally after all three visits. Even after the alleged 2014 confrontation in his home village, [the applicant], on return to Australia, pursued the career of a student seeking to migrate here on the basis of skills. He did not bring any protection claims to light until 2017 after a somewhat exhaustive and arguably expensive effort to have his student status restored. I give some negative weight in this matter to the fact that [the applicant] delayed lodging a protection visa application until over three years after his last arrival here from Bangladesh and around six years since his first.   

1. Generally, I find it very hard to believe that the local AL, as described, would not have noticed when [the applicant] was in [Upazila 1] and when he was not. In this light, it strikes me as odd that they did not mount a strike against him until years after he had first left Bangladesh.

2. [The applicant]’s central claim is that, believing him still to be [an official] of the [Union 1] JCD, and to have been in Bangladesh all along, and after some of its members encountered him on the street in early 2014, the AL, around nine months later lodged a false report to the police implicating him in criminal behaviour that would see him arrested, detained and possibly convicted in the event that he is ever located in Bangladesh, which would easily happen upon his next entry into the country.    

3. The alleged creation of false charges against [the applicant] in 2014, seen in the context of his and his family’s history of involvement in local BNP politics overall, strikes me as being at odds with how he and the rest of his family were treated in the decades, or decade at least, before 2014. It also strike me as being at odds with how [the applicant] was left to study and support the BNP when he was actually living and moving about in Bangladesh up until 2011. He claims the false report was precipitated by the AL believing that he was still present and active in Bangladesh in 2014, based on an encounter with him in the street at night. I have already noted that I do not accept the claim about the AL assuming that [the applicant] had never left Bangladesh or the post of local JCD [official]. I shall return to the claim about the nocturnal encounter in 2014 shortly, after giving my findings about what weight to give to the alleged police report. 

4. With regard to this document, [the applicant] says it obviously contains false charges because it refers to a date on which he was not actually resent in Bangladesh. That does not of itself mean that the document is a real police document that has actually been logged for action by the authorities in Bangladesh. DFAT information about the ready availability of fabricated documents in Bangladesh supports a cautious approach to this material.

5. After due consideration, I have given some negative weight to [the applicant]’s apparent lack of attention to, or interest in, ascertaining the nature and gravity of the charges that are supposed to have been made against him: at the Tribunal hearing he showed that he did not know what crime he was alleged to have committed. I find this incongruous with the circumstances of a person who fears jail and even death on return to Bangladesh.

6. Whereas there were over sixty persons named in the police charges document, all with fathers’ names and addresses, [the applicant] said there were only about thirty. He later claimed that he said “thirty” because he regarded this as an approximation of sixty. He also claimed that stress and depression may have prevented him from giving accurate factual information at all times during the hearing. I dismiss these explanations, the one about rationally regarding thirty to be an approximation of sixty being particularly far-fetched. [The applicant]’s evidence regarding what he knew to be the content of the document shows that, while he is very interested in its potential to support his protection visa application, he has not evidently taken any genuine interest in ascertaining, say for the sake of rebuttal in a Bangladeshi court, what it purports to hold against him, except for the obvious error of the alleged date of the alleged offences. I give this incongruous stance regarding the content of the document some negative weight.

100.   [The applicant] told me he did not know any of the purportedly charged people personally. I have checked to the document and have noticed that some of the names have addresses as far-flung as Chittagong, so I would not expect [the applicant] to know many, if any, of them. The names could well have been added to the document arbitrarily, as [the applicant] broadly suggests. Therefore I find it does not weight against [the applicant] when he says he does not know any of the persons named alongside him.

101.   I do give some negative weight, however, to the fact that [the applicant] did not bring this document to light until 2017, after a court threw out his appeal against the MRT affirming the Department’s decision to refuse him a further student visa; this was almost three years after he was supposed to have been aware of the purported charges. There is also the date on which he is alleged to have committed the offence, a November 2013 date on which he was not even in Bangladesh in the first place: [the applicant]’s comment on this is that it is evidence of reckless antipathy on the part of the AL who do not care how inaccurate the charges might be as long as they stay “on the books” for a while. Meanwhile, there is no evidence to suggest that the charges have progressed in the seven years since they were purportedly lodged. Whereas [the applicant]’s brother [Mr A] has given evidence about the police and the charges, I find that his evidence was generally confused and unhelpful, not least because he was not present during episodes he described in his evidence. He said, on the other hand, that the eldest brother [Mr C] was involved, although [Mr C] has not been offered in this matter as a witness.

102.   As discussed at the hearing, [the applicant] has been found on a past occasion to have submitted fraudulent documentation in support of a visa application. In assessing whether or not I consider the 2014 police document to be genuine or fraudulent, I have given some negative weight to [the applicant]’s past record in this regard. I have also had regard to DFAT’s advice regarding how falsified documents including police reports and even passports are readily available for the asking in Bangladesh.

103.   The document presented appears to be a typed one with a few wet stamps here and there. It is dated November 2014 but that could easily be as fraudulent a date as the alleged date of the offending contained in it. Meanwhile it was not brought to light until 2017, when [the applicant] eventually lodged his protection visa application, and there is no other contemporaneous evidence from the period 2014 to 2017 supporting its existence prior to 2017.    

104.   Having considered and weighed all the evidence relating to the purported police report, I do not accept that it is a genuine, enforceable document cooked up, say, by political enemies; rather, I find that it is a fabricated document, probably not in existence until 2017, created and forwarded for the purposes of creating a claim in support of the present protection visa application, forming a pattern with deceptive behaviour that, [the applicant] told me, was found by the Department in connection with his last student visa application. I give the purported police report no weight in the present matter.

105.   Given this significant credibility finding, I do not accept that [the applicant] was accosted by AL supporters during his February-March home visit in 2014. I consider this claim a fabrication and I do not accept that [the applicant] went to stay with his sister in Dhaka towards the end of his last visit even partially to avoid being harmed by the AL. In addition, given the evidence of document fraud in this case, I do not believe on the evidence before me that [the applicant] became involved with the BNP during his return visit in 2014, such as by attending the meetings and joining in campus visits and JCD recruitment activities.

106.   [The applicant] and his brother [Mr A] claim that [Mr C] was arrested in 2018 and detained two days before being released apparently without condition. I am prepared to accept that this occurred. However, there is insufficient detail in the evidence before me for me to be satisfied that the treatment [Mr C] received in 2018 will give rise to [the applicant] facing relevant harm. According to the evidence before me, [Mr C] has continued to be active with and on behalf of the BNP for a long time before the incident and in the years since. The evidence suggests that there was an election campaign around the time the incident occurred. Independent evidence indicates that election campaigns are periods of heightened tension and conflict, which passes when elections come and go. I find nothing in the evidence of this evidently isolated instance to suggest that this was part of any systemic or systematic treatment of [Mr C], or [the applicant] or their family. On the evidence before me, I am not satisfied that the treatment of [Mr C] on that one occasion in 2018 is indicative of a real chance of [the applicant] being persecuted in Bangladesh.

107.   Turning to the evidence of BNP activities in Australia, I accept that [the applicant] has been associated with the Australian chapter of the BNP since 2015, at least partly because he genuinely supports the BNP and opposes the AL. I accept he attends and even organises chapter meetings. I accept he has been elected [an official]. I accept he has responsibility for [specified] activities. I accept that he attended protests against the 2018 state visit by Sheikh Hasina. I accept that his presence at the demonstrations and in other activities has been displayed in social media such as Facebook. I am not satisfied on the evidence before me, including the reports and news articles submitted through his adviser, that [the applicant] faces a real chance, of being persecuted for the separate or even cumulative reason of his socio-political profile or activities in Australia.   

108.   The witness Mr [B] says that, on the basis of all that he knows about him, [the applicant] will proceed to be a BNP leader in Bangladesh. Bearing this in mind, I must have regard to s.5J(3) of the Act, in particular s.5J(3)(a) and (c)(iii). (See ATTACHMENT below)

109.   On the evidence before me, I am satisfied that [the applicant] could resume his interest in and support for the BNP in his home district in Bangladesh without being persecuted. His brothers have generally been able to do so, and I am not satisfied on the evidence before me that he is significantly distinguished amongst them. Meanwhile, the various office bearers who have stayed on in Bangladesh and written letters in support of him appear not to have suffered any potentially relevant harm. The independent country information does suggest that leaders at the national level and close associates of the same need to shore up protection from their political foes, but the evidence does not support a conclusion that [the applicant] has ever been or will be such a figure.

110.   On the evidence before me, however, I am not confident that [the applicant] is genuinely interested in pursuing office or higher leadership in the BNP in Bangladesh, in spite of what his witness has asserted. This is because it is apparent on the evidence that from 2011 all the way up to 2015 when he first encountered trouble with his student visa status, [the applicant] behaved like a person whose overriding intention was to migrate to Australia on the basis of occupational skills. He evidently had no local links with the BNP during that period and I do not accept as factual his claimed involvement back home, such as the meetings and campus visits in 2014. That means he had stopped being active with the cause in 2011 before he first came here. Until the last student visa application was refused, [the applicant] was evidently on a trajectory to put permanent residence in Bangladesh behind him, perhaps even indefinitely. Even his association with the BNP in Australia only dates back to the year in which his last student vis was refused. In any event, on the evidence of the rest of the family continuing their lives of local involvement with the BNP, and not facing sustained or systemic harm, and for want of evidence to suggest that any relevant harm has come to any of the various BNP office bearers who have written in support of him, I find, relevant to s.5J(3), that [the applicant] will not have to modify his behaviour in order to avoid being persecuted in Bangladesh.

111.   I do not accept that [the applicant] will be arrested or detained or otherwise harmed on or after return to Bangladesh for any of the reasons claimed.

112.   Having considered all of the evidence in this matter it its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Bangladesh the reasonably foreseeable future or any of the reasons in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Bangladesh is not well founded. He is not a refugee.

113.   For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Findings in relation to s.36(2)(aa) of the Act

114.   Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

115.   A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

116.   Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

117.   "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.

118.   Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.

119.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

120.   Accepting that [the applicant] is a citizen of Bangladesh, I find that Bangladesh is the “receiving country” in this case.

121.   I find that the harm [the applicant] identifies in his claims includes, “arbitrary deprivation of life”, “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.

122.   [The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. Those claims have failed due to a combination of factors: lack of credibility and, ultimately, lack of a real chance of being persecuted. In the circumstances, his claims can no more succeed as complementary protection claims.

123.   Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that [the applicant] will suffer significant harm.

124.   Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Other findings

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

DECISION

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

Luke Hardy
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.

…