1710334 (Refugee)

1710334 (Refugee) [2018] AATA 1522 (15 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710334
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Melissa McAdam
DATE:15 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 15 May 2018 at 2:34pm

CATCHWORDS
Refugee – Protection Visa – Bangladesh – Political opinion – Supporter of Jamaat e-Islami – Particular social group – Wealthy businessman – Fear of extortion and violence - Previous adverse interactions with supporters of governing party – Country information supports applicant’s claims
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 2 September 2013 and the delegate refused to grant the visa on 4 November 2014.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘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 will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
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.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.
SUMMARY OF CLAIMS AND EVIDENCE
Arrival Interview, 30 May 2015
The following is a summary of the written record of the applicant’s Arrival and Induction Interview, conducted on 30 May 2013:
a.The applicant was born in [a particular year] in [Village 1] in Brahambaria district, Chittagong Division, in Bangladesh.
b.He lived in Dhaka from December 2012 to April 2013, in hiding.
c.He is married with two children. His mother is living with his wife and children in their village. His brothers are in Chittagong for work.
d.He followed and supported Jamaat e-Islami.
e.He had a [business] in [County 1].
f.In [2010] Awami League people went to his [business], hit [him], and beat him badly.
g.In 2011 the Awami League people extorted [an amount of money] from him.
h.In [2012] the Awami League people vandalised and burned his [business] and threatened they would kill the applicant.
i.He escaped to Dhaka.
j.He told his [brother] to sell his [business] and he came to Australia.
k.The Awami League people want to kill him because he does not like the ruling party.
l.His [brother] is also involved with the Jamaat e-Islami but not full time. The applicant focussed more on his [business] and that was the main reason the Awami League people chased him, to get money.
m.He paid [a particular amount] for his travel to Australia.
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
n.The applicant was born in [a particular year] in [Village 1] in Brahambaria district, Chittagong Division, in Bangladesh. He submitted a copy of his Bangladeshi Nationality Certificate and Birth Certificate.
o.He is married with two young children. His mother lives with his wife and children in their village. His father is deceased. He has [a number of siblings] in Bangladesh.
p.He is a Sunni Muslim.
q.He lived in Dhaka between 2001 and 2007. He returned to his village in 2008.
r.He owned a [business] in [County 1], Bangladesh.
s.He is a supporter of Jamaat-e-Islam (‘JI’). It is an Islamic party which supports the rights of Muslims. He attended some JI meetings.
t.One evening in 2010 Awami League members attacked the applicant while he was walking home after closing his [business]. [A number of] Awami League [members] attacked the applicant and hit [him]. He fell unconscious and woke up in hospital where he remained for [a number of] days. He has a scar on [the part of his body where he was hit].
u.He continued operating his [business].
v.In 2011 Awami League members extorted money from the applicant because he did not support them. He paid them [an amount] and continued to operate his business.
w.In 2012 [a number of] armed Awami League members went to the applicant’s [business]. The applicant became frightened and ran away. The men vandalised his [business].
x.The applicant went to Dhaka where he was in hiding for three months. He told his brother to sell his [business]. He decided to leave Bangladesh and departed in April 2013.
y.He fears he will be seriously harmed or killed by Awami League members if he returns to Bangladesh, because he does not support them and won’t work with them.
z.He has been targeted because he has been perceived to be wealthy and because he supports the opposition party.
aa.His family told him that Awami League members are asking for his whereabouts.
bb.The Bangladeshi authorities cannot protect him because they have to listen to the government. His [brother] is now in hiding because of his involvement with JI.
cc.He cannot continue to live in hiding in Bangladesh. If he tries to move to another village the Awami League will find him.
dd.He arrived in Australia [in] May 2013.
Departmental Interview 25 September 2014
The following is a summary of the claims and information provided by the applicant in his Departmental Interview:
a.The applicant’s father worked for [a particular government department].
b.The applicant is a Jamaat e-Islami supporter. He has supported the party since he was at school. He would attend JI meetings and take people to meetings. He is not an official member of the JI.
c.He submitted a letter by [Mr A] verifying that the applicant is a party supporter. [Mr A] is [an official] of the local area.
d.At the JI meetings people would gather and discuss the adverse situation in the country, Islamic issues, and bad things committed by the government administration.
e.He has been to between 20 and 50 meetings, maybe 30. Some were big and some small.
f.He voted for the JI only once, in 2001. He has not voted for them since. After this they aligned with BNP on the same platform. They ran in the election together. The applicant thought if he voted for BNP it would go to the JI alliance.
g.The national leader of JI is Maulana Motiur.
h.The applicant was busy with his employment when he lived in Dhaka. He was there from 2001 until 2007. He moved there for employment. He worked in a [particular] company. The company closed down so the applicant stopped working there. He was a general worker at the company.
i.He and his family were happy in Dhaka. He did not experience any incidents while he lived there.
j.He started his [business] in 2008. In 2010 his [business] was attacked. He was also attacked and seriously injured. [A particular part of his body] was bashed. [A particular part of his body] was slashed with a [weapon]. It was done by ruling party people. [A number of] people came [in vehicles]. He did not recognise them as it was night time. They called ‘Catch the Jamaat e-Islami’. During the day they watch someone and they attack at night time. The applicant was attacked because he did not like or associate with them. They attacked him because they associated him with JI. JI people would go to the applicant’s [business].
k.The applicant knows the attackers were Awami League because Awami League are the enemy of JI.
l.He was taken to a hospital. He was in hospital for two weeks. He did not report it to the police because there would be no point. They belong to the ruling party.
m.In 2011 the people demanded money from the applicant’s [business]. They threatened him and forced him to pay them [an amount]. This was in [a particular month in] 2011.
n.They would often come to the applicant’s [business] and [take goods] without paying for it. They intimidated and humiliated him. They all belonged to the ruling Awami League. They extorted other people too.
o.In [2012] the applicant was [in the business]. He saw [a number of] people approach his [business]. He slid out the back door. They vandalised his [business]. He recognised them as Awami League members. He had seen them in the local area. They were armed with [various weapons]. They did this because he did not like their organisation. He thinks they were jealous of his business too.
p.The applicant then went to Dhaka. He did not take his family with him. He stayed in Dhaka around three months and did not return to his village. His sister-in-law supported him in Dhaka. He confined himself in her house.
q.His wife and child have not experienced any harm in Bangladesh.
r.His brothers are supporters of JI too but they don’t mix with people much. They only return to the village once a year.
s.If the applicant returns to Bangladesh he believes the Awami League will take revenge on him, because he does not like the Awami League. Bangladesh is like this. Many people are dying because of the Awami League.
Delegate’s Decision
The Delegate found the applicant to be generally credible and accepted he was a JI supporter who had been attacked by Awami League members because of his political opinions and affiliation with JI. The Delegate accepted the applicant’s store had been vandalised by Awami League members. The Delegate accepted the applicant was extorted in 2011 by men affiliated to the Awami League.
The Delegate did not accept the applicant had been extorted because of his political opinion. The Delegate did not accept the applicant’s brother was in hiding in Chittagong because of his involvement with JI.
The Delegate accepted that ‘wealthy businessmen in Bangladesh’ are a particular social group.
The Delegate found the applicant was targeted by Awami League because of the cumulative effect of his political opinion, association with political supporters, and his successful business.
The Delegate did not accept that there was a real chance the applicant would be seriously harmed in both [Village 1] and Dhaka because of his political opinion.
The Delegate found that the applicant would no longer be perceived as a wealthy businessman as he no longer has a business. The Delegate reasoned that even if the applicant starts a new business in Bangladesh there is no guarantee it would be successful.
The Delegate found that the chance of harm to the applicant as a member of a particular social group, wealthy businessmen, to be remote.
Initially constituted Tribunal, case number 1418373
The Tribunal, as initially constituted, accepted the applicant is a low level JI supporter who attended JI meetings in Bangladesh. It accepted the applicant would resume his support for the JI if returned to Bangladesh. It accepted the applicant was attacked in Bangladesh as claimed. It gave him the benefit of the doubt that his support for the JI was the essential and significant reason for the harm he suffered in Bangladesh.
The initially constituted Tribunal was not satisfied the applicant could access adequate state protection in Bangladesh.
The initially constituted Tribunal found the applicant could reasonably relocate to Dhaka to avoid the harm he feared in his village. It affirmed the Department’s decision on 21 March 2016.
Federal Magistrates Court remittal, [SYG]
On 7 June 2016 the Federal Magistrates Court ordered that the matter be remitted, by consent, to the Tribunal for determination according to law. The Minister conceded that the initially constituted Tribunal erred in failing to consider the applicant’s claim to fear harm in Bangladesh as a wealthy businessman, or a person perceived to be wealthy.
Previously constituted Tribunal, case number 1609320
In its consideration of the application, the Tribunal, as previously constituted, found the applicant to be a credible witness. It accepted the applicant is a JI supporter and member who participated in JI’s public activities by attending meetings, handing out programs, and participating in election campaigns. It accepted the applicant would continue his support for the JI if returned to Bangladesh. It accepted the applicant was attacked in Bangladesh as claimed.

The previously constituted Tribunal was not persuaded that the applicant had a well-founded fear of persecution in Bangladesh as a person perceived as being wealthy if returning from the West.
The previously constituted Tribunal accepted there was a real chance the applicant would be harmed again by Awami League supporters in his local area because he is a JI supporter.
The previously constituted Tribunal found it would be reasonable for the applicant to relocate in Bangladesh. It affirmed the Department’s decision on 28 November 2016.
Federal Circuit Court remittal, [SYG]
On 5 May 2017 the Federal Circuit Court ordered that the application be remitted, by consent, to the Tribunal for reconsideration according to law. The Minister conceded that the previously constituted Tribunal erred in failing to consider the applicant’s claim to fear harm in Bangladesh as a wealthy businessman.
Hearing before the Tribunal, as currently constituted
The applicant appeared before the Tribunal, as currently constituted, on 5 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.His wife, [children], mother [and siblings] are all living in Bangladesh. His wife, children and mother are in the family village. [Some of his siblings] live in [a] nearby village. His brothers are in Chittagong. They only return to the family village for big festivals such as Eid and they don’t remain there for long.
b.The applicant ran away from Bangladesh because of the government. In 2010 members of the ruling party attacked him. In 2011 he had to pay a ransom. In 2012 they came to his [business] and tried to kill him so he ran away.
c.In 2010 they came [in a number of vehicles]. They attacked him and stabbed him with a [weapon]. He still has a scar on [a particular part of his body] from the attack. They came in the evening. They were part of the Awami League.
d.They attacked him because he was not involved with the ruling party. He was actively involved in Jamaat Islami [JI]. He participated in different JI programmes in different places. At the programmes they discussed the problems of the government. The programmes were held once or twice a month. He participated in JI meetings in his area and in Dhaka. They were outdoor meetings. Sometimes the Awami League supporters would come and attack them.
e.JI support the BNP and the party supporters march together. The applicant would go on the marches to oppose the government. The BNP and JI would organise protests against the government. The applicant participated in the protests.
f.The applicant was not a member of JI, he was a supporter. He supports JI because they are right politically and they are an Islamic party.
g.The applicant ran a [business] in Bangladesh because the profits were good. He became wealthy in Bangladesh. If he returns to Bangladesh he would again run a [business] because it is a profitable business.
h.He still supports JI. He would be at risk still in Bangladesh because he would be running a business there. He is no longer wealthy since coming to Australia. He would have to start for the beginning again in Bangladesh. He would get a shop and run a business. He would be harmed by the government people because he would continue to support JI and participate in JI activities.
i.His brothers support JI too but they are not active supporters. They don’t attend programmes.
j.The applicant could not live safely in Dhaka because the government group is everywhere in Bangladesh. He can’t remain in Dhaka in hiding.
k.He and his brothers have property holdings in Bangladesh. His grandfather had land. He has [a number of] acres. Most people have much less than this. The properties produce rental income and income from crops. For his area he is considered financially ‘good’.
Country Information
DFAT, ‘Country Information Report – Bangladesh’, February 2018m, states:
The AL has also focused on restricting the activities of opposition political parties, particularly the BNP and JI. These restrictions have included arresting thousands of opposition political party members and supporters, often in conjunction with political demonstrations, preventing opposition parties from holding meetings and demonstrations, and pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations. Opposition figures have also been prevented from leaving the country, and many (including Khaleda Zia) have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh.
DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
…
In rural areas, AL members and activists have reportedly extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money.
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Jamaat-e-Islami (JI)
Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi (northern Bangladesh) and Chittagong, the country’s second largest city. The party is committed to the creation of an Islamic state adhering to sharia (Islamic law), and to the removal of ‘un-Islamic’ laws and practices. The Islami Chhatra Shibir (ICS) is the JI’s student wing. It is one of the largest Islamist student organisations in South Asia. International sources report that it is one of the strongest student fronts in the Universities of Chittagong, Rajshahi, and Jahangirnagar. Local academic sources describe the ICS as having a notorious reputation for violence.
Government practices under the AL have severely restricted the JI’s ability to conduct activities on a day-to-day basis. In August 2013, the High Court deregistered JI as a political party because it judged that provisions in JI’s charter preventing women and non-Muslims from holding political or bureaucratic posts were inconsistent with the Constitution.
Five JI leaders have been executed after being convicted of war crimes by the ICT. Unsurprisingly, JI has vehemently opposed the ICT, which it has characterised as an attack on Islam and on Bangladesh’s identity as a Muslim country. JI has periodically held major strikes and violent demonstrations across the country, particularly against the ICT, which have resulted in numerous deaths (mainly at the hands of security forces) and large-scale property damage. In response to these demonstrations, and in response to militant attacks, authorities have arrested thousands of JI members in counter-terrorism operations, including through enforced disappearances.
Authorities have particularly targeted for arrest the JI’s senior leadership, few of whom remain free and active. Other targets include prominent leaders, ICS members and, in some cases, family members. Lower-level JI members have reportedly been able to avoid the attention of authorities either through the paying of bribes to AL leaders or by physically relocating. DFAT assesses as credible reports that the situation is better for JI members in villages than in cities.
DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction. Active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location.
The UK Home Office, ‘Country Policy and Information Note Bangladesh: Opposition to the government’, published in January 2018, includes the following country information references:
4.9.1 While Jamaat-e-Islami is a member of the BNP-led 18-party alliance, it is a major political party in itself.
4.9.2 Jane's Sentinel Security Assessment [September 2017] noted:
‘Jamaat-e-Islami was originally established in Lahore (now Pakistan) in 1941. During the Bangladesh war of liberation in 1971, Jamaat-i-Islami joined with the Pakistan occupation army and acted as its auxiliary force, apparently being complicit in genocide and other war crimes. After the emergence of an independent Bangladesh, JeI ceased to exist as a party due to a prohibition on religion-based political parties. The party was officially reconstituted in 1979 when the prohibition was withdrawn.’
4.9.3 Jane’s observed that JeI ‘continues to maintain a strong Islamist stance but supposedly rejects violent extremism.’
4.9.4 JeI was one of the BNP's coalition allies, securing 18 seats in the 2001 general election. However, the party won only two seats in the December 2008 election, ‘perhaps indicating the electorate's disenchantment with more radical Islamist ideals’, according to Jane’s’.
4.9.5 In August 2013 the High Court declared JeI’s registration as a political party to be illegal, on the basis that its charter contained elements contrary to the country’s Constitution and election rules. JeI was accordingly barred from fielding candidates in the January 2014 general election. [The Hindu, ‘Jamaat-e-Islami ineligible for next polls – Bangladesh EC’, 7 November 2013]
4.9.6 In 2013, nine members of the party's senior leadership, including its leader, were charged with war crimes committed during Bangladesh's war of independence in 1971. DFAT noted, ‘Many [JeI] leaders and activists participated in Pakistani military operations during the 1971 war and have been implicated in war crimes, including mass murders, rapes and forced conversions to Islam.’ According to a UK House of Commons Library, Briefing Paper of October 2017, ‘Six prominent opposition figures have been hanged since the Tribunal began its work – most recently, Jamaat-e-Islami’s ...Mir Quasem Ali in September 2016.’
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6.1.9 DFAT reported in July 2016:
Authorities have restricted BNP meetings and protests in rural areas, and have responded violently to JeI-led anti-ICT protests.
Dawn News, 2017, ‘Bangladesh arrests top leaders of Jamaat e-Islami’, 10 October, reports:
Bangladesh police on Monday night arrested the top leaders of the country's largest Islamist party, an official said, as the government appeared to have launched a crackdown on the main opposition parties. Nine people were arrested after a raid on a house in Dhaka's northern neighbourhood of Uttara, including the top leader of the Jamaat-e-Islami party, Maqbul Ahmed, deputy leader Shafiqur Rahman and former member of parliament Golam Parwar. …
The arrests came as the government appeared to have launched a crackdown on the opposition parties after it came under heavy flak for its handling of the Rohingya crisis which has seen a massive influx of refugees fleeing violence in neighbouring Myanmar. …
Jamaat has been banned from contesting polls in Bangladesh after the country's high court ruled in 2013 that the party's charter contravened the nation's secular constitution.
The following is an August 2015 article on the website of the Bangladesh Jamaat e-Islami, entitled ‘Businessmen filed general diary against ruling party for massive extortion’:
Acting Secretary General of Bangladesh Jamaat-e-Islami, Dr. Shafiqur Rahman has issued the following statement on 28th August, 2015 expressing deep concern as 8 distinguished businessmen has filed a general diary in the local police station as they suffered highly for the continuous extortion of Dhaka South City Corporation’s 39 ward councilor (Tikatuli) and number one member of executive committee of Dhaka city unit of the ruling Awami League Mainul Hoque.
“The entire nation is severely worried and tensed as the rapid increase of ill activities like extortion, tender terrorism, murder, abduction, torture against women and children of the ruling party cadres. The general diary filed by 8 businessmen is the exposure of those gruesome sufferings of the general masses.
These 8 businessmen became compelled to file this general diary for the sake of life security. This is nothing but a snap of nationwide extortion business of the ruling party men. The entire nation is experiencing this extortion and no one is free from the clutches of power party thugs. … The law enforcers are indulging the ruling party terrorists instead of detaining them and harassing the opposition men without any excuse.
The countrymen are extremely dissatisfied and aggrieved with the biased and one sided role of the law enforcers. The law enforcement bodies are actually busy in conducting crackdown against the leaders and activists of Jamaat-e-Islami and Chhatrashibir.
… In this backdrop, I am urging the law enforcers to ensure security and safety of the citizens particularly the businessmen. I am also calling upon the countrymen to raise voice against the extortion and terrorism of the ruling party cadres.” [1]
[1]
A December 2016 Asylum Research Consultancy report (commissioned by the UNHCR), ‘Bangladesh Query Response: Awami League (AL) and supporters of the Bangladesh National Party (BNP)’, states:
In addition to organisational weakness, two of the associate organisations, Chhatra League and Jubo League, have earned a negative image for the party as their members frequently indulge in violent contestations to grab business tenders and extort money or to establish authority in various educational institutions. Though the AL president and other party leaders have many times lamented about the criminal activities of these associate organisations and the party president has tried to distance herself from these organisations, the AL central leaders have not been able to control the rent-seeking and violent behaviour of the members of these associate organisations. … The International Crisis Group explained in a February 2015 report that “The Chhatra League [Awami League student wing] and Jubo League [AL Youth wing] allegedly run extortion rackets within and outside campuses, often forcibly extracting donations for political activities, such as the annual commemoration of Mujib’s murder.
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Minority Rights Group International considered that “The launch in June 2016 of a nationwide crackdown on militants following a series of attacks, including the murder of a senior policeman’s wife, appeared to signal a shift towards a more concerted response against extremist organizations – yet the operation, which reportedly led to thousands of arrests, was also criticized by civil society groups for widespread allegations of police abuse and corruption, while BNP and Jamaat-e-Islami activists accused authorities of using the round-up to specifically target them”.
Human Rights Watch’s September 2016 issued a report on ‘“Kneecapping” and Maiming of Detainees by Bangladesh Security Forces’ which noted that: This report documents a spate of alleged “kneecappings”—deliberate shootings of detainees, typically in the lower leg—and other unlawful shootings by Bangladeshi security forces since 2013. Several opposition party supporters, including members of the Bangladesh Nationalist Party (BNP) and Chhatra Shibir, the student wing of Jamaat-eIslami, said that police in Bangladesh deliberately shot them after detaining them, then falsely claimed that they were shot in self-defense or during violent protests. Other people we spoke with said they were shot in public while attending or passing by antigovernment demonstrations. […] Most of the people interviewed for this report were unwilling to be identified, fearing legal retribution, as almost all are facing criminal cases. Others feared arbitrary arrest, disappearance, torture, or extrajudicial killing—abuses that are all too common in Bangladesh, particularly against opposition party members. In a September 2016 submission to the UN Human Rights Council the Asian Legal Resource Centre noted that “Arbitrary detention is also unavoidable prior to any political rally or public protest. The law-enforcement agencies detain a large amount of activists, supporters of the opposition parties, as well as ordinary citizens, to silence the society, fearing a people’s uprising against a repressive government”.
The 2016 Human Rights Watch, World Report - Bangladesh, states:
The opposition Jamaat-e-Islami party claims its activists were arrested and tortured by the police, including its Detective Branch, and says several members were killed by security forces. For instance, witnesses saw the police arrest Ahmadullah, a 22-year-old student supporter of the party, on January 31; his body was found the next morning. The police claimed that he was killed in crossfire between security forces and Jamaat supporters.
Several Jamaat supporters said that the police took them into custody and deliberately shot them in the knee or shin to disable them. Odhikar, a Bangladesh human rights group, documented at least 30 cases where people were shot in the leg—sometimes after arrest. The police claimed the shootings occurred during efforts to disperse violent mobs.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted copies of his Bangladeshi identity documents. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Bangladesh. The Tribunal assesses the applicant’s claims against Bangladesh as his country of nationality and receiving country.
Credibility
Since his arrival in Australia, and throughout the long process of his Protection visa application, the applicant has consistently maintained he was an active JI supporter in Bangladesh. The applicant has presented reasonably detailed evidence regarding how and why he supported JI. The Tribunal accepts that the applicant was an active JI supporter in Bangladesh and that he continues to support JI. Given the nature of his activity in support of JI, including participating in meetings and protest demonstrations, the Tribunal accepts that his allegiance to the JI was public and known in his local area.
The applicant has also consistently maintained that he ran a profitable [business] in [County 1], Bangladesh. The Tribunal notes the applicant was able to provide [a particular amount] for his travel to Australia, a relatively large sum of money in Bangladesh. There is no reason to doubt the applicant’s claim to have owned and operated a [business] in Bangladesh. The Tribunal accepts he did this and that his [business] was a profitable one.
The Tribunal noted some discrepancies in the applicant’s evidence over the course of his application process, regarding his description of the attacks upon him by Awami League members. However the Tribunal acknowledges that several years has passed since the applicant was in Bangladesh and that his life has been quite unsettled since leaving his home village and fleeing to Dhaka then Australia. The Tribunal considers the applicant’s evidence sufficiently reliable to accept that he was attacked in or near his [business] on two or three occasions, by members of the Awami League, who beat him and extorted money from him. On the basis of his evidence and the supporting country information the Tribunal accepts that the applicant was targeted for attack and extortion by the Awami League because he was an active JI supporter who operated a successful business.
Fear of Harm

The available country information, referred to above, shows that the Awami League continue to govern in Bangladesh and that they hold the power in the country. This includes their power to influence the security forces to act in their favour, and against their political enemies.
DFAT in its most recent report on Bangladesh expressed the opinion that: “Active members of opposition political parties and auxiliary organisations who participate in demonstrations … face a high risk of arrest and physical violence, both from security forces and ruling party activists” DFAT distinguishes ‘ordinary members’ ‘who do not engage in political activities and demonstrations’ as facing only a low risk of harm, while acknowledging “this may vary according to location and timing.”
The available country information also shows that the Jamaat e-Islami party is under particular threat in Bangladesh, with its leaders being arrested and executed and its members arrested and harassed. DFAT states that “[a]ctive JI members … who continue to engage in political activities and demonstrations … face a high risk of arrest.”
The Tribunal has accepted that the applicant was an active JI supporter who participated in demonstrations in Bangladesh, and that he would continue to do so if returned to Bangladesh. In view of this finding and the available country information the Tribunal is satisfied that there is a real chance that he would be arrested as a result of his active involvement in JI, particularly in JI protest demonstrations.
The available country information does not suggest that the situation for JI active supporters is different in Dhaka or in any way safer there. There is also no suggestion that the applicant would cease his active support for JI if he lives outside of his village area in Bangladesh. Given the Awami League remains in power in Bangladesh the Tribunal considers that the threat to JI active supporters exists throughout Bangladesh. Therefore there is no safe relocation option for the applicant in Bangladesh.
Given these findings there is no strict necessity to consider the risk of harm to the applicant as a wealthy businessman, or person perceived to be a wealthy businessman, in Bangladesh. However for the sake of completeness the Tribunal will consider this aspect of the applicant’s claims.
The Tribunal is of the view that the applicant’s past profile, as both a person previously targeted by the Awami League, and as a wealthy businessman known to support JI, increases his vulnerability to future adverse attention from Awami League members and supporters in Bangladesh. The Tribunal accepts that if returned to Bangladesh the applicant would again pursue business opportunities, which would also further expose him to adverse attention from Awami League members and supporters. The Tribunal considers that the applicant’s wealth, or perception of wealth, would again attract extortion attempts from Awami League members. As reported by DFAT extortion by Awami League followers is accompanied by threats of violence. The past act of extortion against the applicant was committed with preceding and ensuing violence. On the basis of the applicant’s evidence and the supporting country information the Tribunal is satisfied that there is a real chance the applicant will face further violence and extortion in Bangladesh.
The Tribunal is therefore satisfied that the applicant’s profile as a wealthy businessman, or someone perceived to be a wealthy businessman, heightens the real chance that he will be seriously harmed in Bangladesh as an active JI supporter.
The Tribunal is satisfied that the essential and significant reasons for the harm the applicant is at risk of in Bangladesh are his political opinion, as an active JI supporter, in combination with his membership, or imputed membership, of a particular social group, namely wealthy businessmen in Bangladesh.
Given that it is members and agents of the ruling government that the applicant fears, the Tribunal considers there is no available state protection for him in Bangladesh.
There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and is therefore not precluded from Australia’s protection obligations by s.36(3) of the Act.
CONCLUDING PARAGRAPH
For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Bangladesh. Therefore, the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal is satisfied that the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam

Member

[2018] AATA 1522

15 May 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction