1714177 (Refugee)

1714177 (Refugee) [2023] AATA 3383 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mohammed Nasir Ullah
CASE NUMBER: 1714177

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Member Nathan Goetz
DATE:18 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2023 at 2:58pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Jamaat-e-Islami member – political violence – physical assault – fear of killing – political activities in Australia – return visits to Bangladesh – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by registered migration agent 0321608.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
The applicant identifies as male citizen of Bangladesh. He arrived in Australia [in] May 2016 holding a visitor visa that was valid until [June] 2016.
On 14 June 2016 the applicant applied for the protection visa. He was interviewed by the delegate on 24 October 2016. On 9 June 2017 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 3 July 2017 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 28 February 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing conducted via Microsoft Teams commencing at 10:00am on 15 March 2022. The Tribunal was required to invite the applicant to appear at a Tribunal hearing and give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal was unable to make a favourable decision on the material it had.
On 15 March 2022 the applicant appeared at the Tribunal hearing. The hearing was conducted visa Microsoft Teams and an interpreter in the English and Bengali languages was used for the hearing. The applicant’s representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the contents of the Department file, the Tribunal file, as well as the oral evidence that the oral evidence that the applicant provided in support of his protection claims.
The Tribunal has considered the totality of the evidence and its cumulative effect. The Tribunal made it clear to the applicant at the Tribunal hearing that it was not bound by any finding about the facts made by the delegate.
For the following reasons, the Tribunal has determined that the correct or preferrable decision is to affirm the decision under review.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The DFAT Country Report for Bangladesh at the time of the Tribunal hearing is dated 22 August 2019. The Tribunal has also considered the contents of the subsequent DFAT Country Information Report.
Identity and country of reference
In the protection visa application form, the applicant declares that he was born on Noakhali, Bangladesh and is a Bangladesh citizen by birth. He declares that he has no other citizenship, has retained his Bangladesh citizenship, and that he does not have any right to enter and reside in any third country.
In support of his identity, he provided a copy of his Bangladesh passport that was issued [in] 2012 and valid for five years.
The Tribunal is satisfied about the applicant’s identity on the basis of the applicant’s passport. The Tribunal is satisfied that he is a citizen of Bangladesh for the same reason.
In the absence of any evidence to undermine the claim that the applicant has no other citizenship and does not possess the right to enter and reside in any third country, the Tribunal is satisfied that the country of reference for the purpose of the protection visa assessment is Bangladesh.
Claims relating to membership of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act
In the protection visa application form, the applicant detailed that no other person was included in the protection visa application, and that he was making his own claims for protection. He did not claim to meet the requirements for a protection visa on the basis that he was a member of the same family unit as a person who is a ‘refugee’ or a meets the requirements for ‘complementary protection.’
Based on that concession, and in the absence of any evidence to the contrary, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
Claims relating the applicant’s past conduct in Bangladesh
In the protection visa application form, the applicant detailed that he left Bangladesh because he was involved with Jamaat – E – Islami (JI) politics. He wrote that as a result, he received harassment, and received death threats from local Awami League workers and supporters. He wrote that attempts were made several times to kill the applicant. It was for this reason that the applicant left Bangladesh. He believed that he will be harmed in Bangladesh by the Awami League if he returns to that country because of this past experience and the fact that it is common in Bangladesh that Government party members, with the support of the police in that country, harass opposition party members.
According to the DFAT Country Information Report on Bangladesh dated 22 August 2019 at 3.83, 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. JI is committed to the creation of an Islamic state with a sharia legal system, and to the removal of ‘un-Islamic’ laws and practices. The Islami Chhatra Shibir (ICS) is the JI’s student wing and is one of the largest Islamist student organisations in South Asia. ICS is reportedly one of the strongest student fronts in the Universities of Chittagong, Rajshahi, and Jahangirnagar, with a notorious reputation for violence.
According to that same report, at 3.61, Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the 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.
The Country Information Report details at 3.66 that since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office. Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI, as detailed at 3.67 of that Report.
The protection visa application form asked whether the applicant had experienced harm in Bangladesh and to detail the harm. The applicant wrote that he used to support his team but when the team leader and president of the team was arrested and sentenced to death, the applicant protested against it. The Awami League, as it was in Government, tortured the applicant mercilessly. The applicant indicated in the protection visa application form that he would provide a written statement and letter/document at a later time. He did not provide anything further to delegate prior to the delegate interview.
At the delegate interview, the applicant claimed that his father as involved in Bangladesh politics in 1971, that the Awami League were looking for his father and the family as suspected supporters of JI, that the applicant joined JI in 1991, that his father was kidnapped in 1997 and held for ransom, that the applicant was assaulted with a brick in 1997 because he was identified as a JI member. He repeated his claim that the Awami League were looking for him.
Relevant to the applicant’s claimed political activities and political opinion in Bangladesh, and subsequent to the applicant applying to the Tribunal for merits review of the delegate decision (but prior to the review being constituted to the Member), on 5 March 2022 the applicant provided the Tribunal with a written statement concerning his claims.
In that statement, the applicant wrote that he was a member of JI but that organisation worked under one umbrella as a 20 party coalition alliance. The alliance was formed on 18 April 2012 with other parties joining that alliance. He wrote that before coming to Australia, he participated in many of the 20 parties’ activities, such as protests, road blocking, street protests, and processions. The applicant wrote that during protests, police tried to arrest the applicant, but he always avoided the police. He wrote that he never stayed at his home after 5 January 2014 election because he knew that the RAB (Rapid Action Battalion) and police engaged spies to trace his location. The applicant claimed that Awami League goons tried to attack him several times when he was protesting, and he was lucky to live. The applicant claimed that he took part in the election campaign for [Candidate A] for the 2009 election.
In support of his claimed activities in Bangladesh, and what he claimed happened to him in that country, the applicant provided a letter dated 10 July 2018 from [Candidate A], who identifies himself as a barrister in Bangladesh and a former member of Bangladesh Parliament for the Bangladesh Nationalist Party (BNP). In that letter, the author details that the applicant was an active worker for the BNP of the [Location 1] Upazilla Unit of the Noakhali District, Bangladesh. The author wrote that the applicant was a victim of the Awami League, had participated in many meetings, rallies and demonstrations with the BNP and that Awami League hooligans had threatened to kill him, causing the applicant to leave Bangladesh. The Tribunal observes that the applicant previously provided that same letter to the Tribunal on 22 August 2018, prior to the matter being constituted to the Member.
Concerning the year that the applicant joined JI, he told the delegate at interview that he joined the party in 1991. At the Tribunal hearing, he told the Tribunal that he joined JI in 2009. At Tribunal explored at the Tribunal hearing what was involved in the applicant joining JI. The applicant repeatedly said that he decided to join JI because of the problems with the Awami League and that he was thinking about joining that party. It was only after repeated questioning that the applicant said that he joined JI by attending an office and contacting a leader. He claimed at the Tribunal hearing to still be a member of JI. The applicant’s response to the Tribunal’s concern about the difference between what he told the delegate and what he said to the Tribunal about when he joined JI was to suggest that he was not asked the question the same way by the delegate as the Tribunal, suggesting that he meant he was ‘supportive’ of JI from 1991.
At the Tribunal hearing, the Tribunal queried why he would provide a support letter from a person associated with the BNP instead of a letter from someone associated with JI, given the applicant claimed to have been a member of the JI and undertaken various activities in Bangladesh as part of his membership with that organisation. The applicant said that he provided the letter from the BNP because that person knew the applicant. The applicant told the Tribunal that people in the JI knew him as well. When the Tribunal explored why there was no mention of the applicant working as part of the ‘coalition’ in his protection visa application form, the applicant claimed that he mentioned it to the lawyer who helped him complete the protection visa application, but the lawyer advised the applicant that he did not need to put in this information. The applicant suggested that everyone knows of the coalition of the political parties in Bangladesh.
At the Tribunal hearing, the applicant told the Tribunal that the first time he suffered harm because of his association with JI was in 2010. He told the Tribunal that he was riding a rickshaw and stopped by people who were unknown to him. The people said they wanted a word with the applicant. He told the Tribunal he realised that he was stopped because of his involvement with JI once he had a conversation with the people. He told the Tribunal that he was grabbed by the collar and pulled down. He was told to not have any communication with JI and if he did, they would kill him. He did not repeat what he said to the delegate about being assaulted in 1997 for being identified as a JI member.
The Tribunal discussed the fact that the applicant detailed the 1997 assault for the first time to the delegate (it was not detailed in the protection visa application form) but did not repeat this first harm to the Tribunal. The Tribunal also noted that the applicant did not detail the 2010 incident to the delegate at interview. The Tribunal’s concern was that the inconsistent evidence provided by the applicant suggested that he was not a witness of truth. The applicant disputed that this was the case and suggested that any error was due to ‘miscommunication.’
At the Tribunal hearing, the applicant said that the last time he was harmed in Bangladesh was in 2016, but later suggested that this was in 2015. He told the Tribunal that he was supposed to go back to his village home for Eid for 10 days, but he left after one day. He told the Tribunal that when he arrived there, he was informed that Awami League people were looking for him, as were the police.
Observing that this was the last incident of claimed harm that, on the applicant’s oral evidence to the Tribunal, suggested he was fearful of future harm and necessitated him leaving his home village, the Tribunal explored with the applicant why he did not detail this specific incident in his protection visa application form, nor tell the delegate about it. The Tribunal’s view was that the applicant’s failure to previously detail the 2015 incident suggested that the applicant was not a witness of truth about his claimed lived experiences. The applicant disputed that this was the case and suggested that there must have been a ‘miscommunication.’
The Tribunal considered the applicant’s explanation provided to address the concerns the Tribunal raised but is not persuaded by the explanation. The Tribunal’s assessment is that the claims as raised in the protection visa application form are very broad because the claimed instances of harm raised subsequently at the delegate interview and at a Tribunal hearing are not true. The Tribunal is satisfied that if any of the specifics instances of harm were true, the applicant would have included them in the protection visa application form. The Tribunal is not satisfied that there was any error or ‘miscommunication’ which resulted in the applicant’s specific instances of harm not being detailed in the protection visa application form, or which resulted in inconsistencies between what the applicant told the delegate and what the applicant told the Tribunal.
Further, the letter from the former member of parliament of Bangladesh makes no refence to the applicant’s claimed association with JI. Instead, the letter reads as if the applicant was a member of the BNP, claiming that he was ‘active worker of the BNP of [Location 1] Upazilla Unit.’ Given the timing of the submission of that letter, being in 2018 subsequent to the delegate interview, the fact that it makes no reference to the applicant’s involvement with JI, and in combination with the other concerns that the Tribunal has concerning the applicant’s credibility as discussed in this decision record, the Tribunal is not satisfied that the contents of the letter are true. The Tribunal is satisfied that the content of the letter has been manufactured in order for the applicant to be granted a protection visa.

The Tribunal is not satisfied that there is any truth to the applicant’s claims that he has been harmed or threatened with harm (however described) in Bangladesh. The Tribunal is satisfied that the applicant’s claimed experiences of past harm, and that of family members, was manufactured in order to be granted a protection visa.
The Tribunal accepts that the applicant provided from the BNP in Australia (discussed later in this decision record), which asserted that the applicant ‘has suffered severe violent acts by the ruling party activists.’ However, the author does not claim or identify how he came to know this, and the Tribunal’s assessment is that this assertion is based on the applicant self-reporting to the author. The Tribunal is satisfied, for the reasons detailed in this decision record, that the self-reporting by the applicant was not the applicant truthfully recounting his own lived experiences of harm in Bangladesh.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Membership document for JI
At the delegate interview, in response to a question about whether he had a membership card for JI, the applicant said that he was unable to produce one because his family home was set on fire in 2006. He also said that he made no attempts to gain replacement documents.
At the Tribunal hearing, the applicant said that he had never been given membership documents for JI, but suggested he had ‘some documents’ but was not sure where they were. He claimed that the documents were kept at his mother’s place but since she passed away, he could not find them. Later, he suggested to the Tribunal that he was given a membership document which ‘had a number’ but that the membership document was not required to attend meetings. He claimed that he thinks the document might still be in his mother’s wardrobe. He suggested to the Tribunal that he did not ask his mother for that document because she was sick, and that his siblings were unable to obtain the document for him because of COVID.
In response to the Tribunal’s concern about what appeared to be confused evidence about whether the applicant had membership documents, and the confused evidence about the applicant’s reasons for being unable to produce membership documents, the applicant apologised and said that his explanation given to the delegate was the correct one, namely the house was set on fire. He suggested to the Tribunal that his explanation to the Tribunal was true because he subsequently spoke to his mother, who suggested that there may be other documents associated with his JI membership that were in a drawer.
The Tribunal considered the applicant’s response to its concerns about the inconsistency in the year he provided about when he joined JI. Ultimately, the Tribunal is not persuaded that the applicant understood the delegate to ask when it was that the applicant became interested in JI. The Tribunal’s assessment is that the applicant provided contradictory evidence about when he joined JI and that the reason he did so was because he never joined or was associated with that political party. The fact that the applicant provided no corroborative evidence of his involvement with JI, such as a membership letter, or a letter from that organisation to confirm his involvement with the organisation, is telling when the Tribunal considers the totality of the evidence. The Tribunal is not satisfied that the applicant was ever involved or associated with JI.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Seeking help in Bangladesh after experiencing the claimed harm
In the protection visa application form, the applicant wrote that he and his family went to the local police station to lodge a ‘G.D.’ against (a) Awami worker(s). The applicant wrote that the police officer refused to take the ‘G.D.’ and said that the police officer cannot accept any complaint against the government party. In the form, the applicant did not detail which police station he attended, or identify when he attended the police station, or the specific incident he sought to complain about to the police. In the delegate decision record, there is reference to the applicant’s family reporting his father’s kidnapping to police, but that the police responded with verbal abuse and no report was taken.
At the Tribunal hearing, the applicant told the Tribunal that he had never gone to a police station to complain about his treatment. He put this down to the fact that he had no opportunity to complain to police, because he supported JI. When the Tribunal pointed out the inconsistency in the evidence about whether the applicant had reported harm to the police, he said that it was not inconsistent, and thought the Tribunal was asking whether he reported the harm he suffered as a result of the 2010 incident to police. He claimed that a report was made to the police about his father being kidnapped, and it was because of that experience that he did not make a report to police about any of the experiences he claimed.
The Tribunal considered the applicant’s explanation; however, it did not find it persuasive. There is no reference to the claimed kidnapping of the applicant’s father in Bangladesh, yet there is a mention of the applicant going to lodge a case at the local police station. The Tribunal is satisfied that the facts in the protection visa application form was based on the applicant’s own claimed experiences, not that of his father’s. If the applicant did go to the police, as suggested by his protection visa application form, the Tribunal is satisfied that the applicant would have repeated that claim to the Tribunal in his oral evidence.
The Tribunal assesses the applicant’s evidence about whether he sought help from the police to be confused and contradictory. The Tribunal is satisfied that the reason the evidence was confused, and contradictory was because the evidence about whether the applicant sought help within Bangladesh after the claimed harm was manufactured in order for the applicant to be granted the protection visa.
Whether the applicant sought help in Bangladesh after the claimed harm, and the Tribunal’s findings about whether he did so, is not necessarily determinative of whether the applicant had experienced the harmed claimed. There may be reasons why a person, who did actually experience the harm claimed, would not seek help from authorities. However, given the totality of the evidence, the Tribunal is satisfied that the applicant did not seek help from authorities in Bangladesh because he had not been harmed as he claimed.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Relocation within Bangladesh to seek safety
In the protection visa application form, the applicant declared that he did not move or try to move to another part of the country to seek safety. He described this decision being based on the fact that Bangladesh is a small country and that Awami League workers would find him wherever he went. It was for this reason that he moved to [Country 1]. In the protection visa application form, he detailed that from 2007 to May 2016 he was residing at one address in Dhaka, which he told the delegate at interview he was ‘minding for relatives.’
At the Tribunal hearing, the applicant did not claim to have experienced any harm while living in Dhaka. However, he claimed that he could not return to live there because it was ‘not safe.’ He claimed that police were looking for him. The Tribunal queried how this could be the case, if he had lived at the one residential address in Bangladesh from 2007 until his final departure from that country in 2016 and he had never been harmed in Dhaka. The applicant said that ‘people can get information.’ The applicant told the Tribunal that from 2007 to 2016 he was ‘in hiding’ in Dhaka.
The Tribunal found the applicant’s evidence about his residential location in Bangladesh, and whether he moved to seek safety vague and contradictory. In the protection visa application form he provided one address in Dhaka from 2007 to 2016 and he did not claim to have relocated there to seek safety. Yet at the Tribunal hearing, the applicant appeared to suggest he was ‘in hiding’ in Dhaka which would suggest he relocated there. The applicant also held the polar opposite positions that he resided in Dhaka because he was ‘in hiding’ which appeared to address why he did not experience any harm there, yet at the same time, claim that he could not return and live in Bangladesh because he would be found there, despite being able to reside there from 2007 to 2016 (with a break for travel to India) without incident.
The Tribunal’s assessment of the applicant’s evidence about whether he relocated in Bangladesh to seek safety is that it was vague and contradictory because the applicant was not recalling his own lived experiences. The Tribunal is not satisfied that there is any truth to the applicant claiming to be ‘in hiding’ in Dhaka or that he lived in Dhaka from 2007 because of his claimed experiences of past harm in his local area.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Travel out of Bangladesh to other countries, and return to Bangladesh
In the protection visa application form, the applicant declared that he last arrived in Australia on [a day in] May 2016, having departed Bangladesh on [the previous day]. He declared that he left Bangladesh legally on his own passport. He also declared that he was in [Country 1] between 1994 and 1999 for work, in [Country 3] between 1999 and 2004 for work, and in Indian between May 2013 and August 2013 for tourism.
At the Tribunal hearing, the applicant said that during his time in [Country 1], he stayed there the whole time, and went directly from [Country 1] to [Country 3]. He told the Tribunal that during his time in [Country 3], he went back to Bangladesh in 2003. The Tribunal observes that the return to Bangladesh in 2003 was not declared in the travel questions on page 14 of the protection visa application form. The applicant said that he did not detail that travel because he was not asked by his lawyer.
At the Tribunal hearing, when the Tribunal explored why the applicant would return to Bangladesh in 2013 if his protection claims were true, the applicant did not answer the question directly. He told the Tribunal that once he went to India, he realised that India was not a good country for JI and it would be harmful for him to stay there. His explanation was very broad and lacked in any meaningful specifics about what happened in India that made him determine that he would be better off in Bangladesh where he would be (according to his written statement of 5 March 2022) ‘killed’ rather than seek to remain in India.
Further, the fact that the applicant did not declare in the protection visa application form that during his stay in [Country 1] he returned to Bangladesh in 2003 suggests to the Tribunal that the applicant was aware of the inconsistency about claiming to fear harm in a country that the applicant has voluntarily returned to on numerous occasions. The fact that the applicant did not declare 2003 trip in his protection visa application form demonstrates that he has a flexible approach to the truth and that he was prepared to tailor his evidence if he thought it would be more persuasive for the grant of a protection visa. The Tribunal does not accept that the explanation for the failure to declare the 2003 trip back to Bangladesh was due to the actions of the migration agent.
The Tribunal’s assessment is that the applicant departed [Country 3] in 2004 and returned to Bangladesh because he did not fear harm in Bangladesh, and the Tribunal’s assessment is that the applicant departed Indian in 2013 and returned to Bangladesh because he did not fear harm in Bangladesh. The Tribunal is satisfied that the reason the applicant did not fear harm in Bangladesh is due to the fact that the applicant’s claimed involvement in political activity, or association with any political activity or group, was fabricated in order for the applicant to be granted a protection visa.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Declaration of family members
In the protection visa application form, the applicant was directed to detail his family members. In that form, he declared his father and mother whom he nominated as deceased and in Bangladesh respectively. At the Tribunal hearing, the applicant said that his mother passed away in 2021. In that form, the applicant also declared a wife and two children in Bangladesh. Reading the form, the Tribunal presumed that the applicant was an only child.
At the Tribunal hearing, after questing the applicant about whether he had any other family members, the applicant said that he had [number] brothers who had died after his arrival in Australia. It was after a further question that the applicant said that he was one of [number] brothers. The applicant put his failure to declare his siblings in the protection visa application form due to the actions of a previous lawyer who assisted him to complete the form.
The Tribunal is not persuaded by the applicant’s response about why he failed to declare his siblings in the protection visa application form. There is no corroborative evidence by the migration agent who completed the form to support the applicant’s explanation. The Tribunal is not persuaded that the applicant provided this information and that the migration agent decided not to include it.
The Tribunal considers, in light of the other concerns that it has about the applicant’s credibility discussed in this decision record, that the applicant has a flexible approach to the truth and saw some advantage (whatever it may be) not declaring the identifies of his siblings in the protection visa application form. The Tribunal is satisfied that the applicant’s flexible approach to the truth about something as basic as the identity of his family members demonstrates that the applicant is prepared to say, or not say, whatever he thinks will assist him to obtain a favourable migration outcome. The Tribunal is satisfied that this flexible approach to the truth has been applied to the applicant’s protection claims.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Claims relating to the applicant’s conduct in Australia
In the protection visa application form, the applicant did not detail that he was a member of any political party in Australia, or that he feared harm in Bangladesh because of activities or associations in Australia.
At the delegate interview, the applicant did not detail that he was a member of any political party in Australia, or that he feared harm in Bangladesh because of activities he conducted in Australia.
It was in a document submitted to the Tribunal on 22 August 2018 after the applicant applied to the Tribunal for merits review of the decision (and prior to the matter being constituted to the Member) that any suggestion was raised that the applicant had engaged in political activity in Australia.
In a letter dated 10 June 2018 from [Mr A], who is identified as the [Position 1] of the BNP in Australia, the author wrote that he knew the applicant personally and that from December 2017 the applicant was ‘working with our organisation as an activist.’ The author detailed that ‘as an opposition activist, [the applicant] participated in various antigovernment rallies and demonstrations to protest against undemocratic and inhumane torture on political leaders and activists.
The Tribunal accepts that on the face of the evidence, the applicant did not detail any involvement in political activity in Australia in his protection visa application form, nor at the delegate interview because the applicant only commenced being a member of the BNP in Australia from December 2017, some 18 or so months after he arrived in Australia.
At the Tribunal hearing, the applicant said that he joined and participated in meetings and demonstrations with the BNP in Australia. He told the Tribunal that he joined the organisation so he could become aware of what was happening in Bangladesh. He also told the Tribunal that he joined the group in Australia just to strengthen his protection claims.
The Tribunal accepts, on the face of the document provided by the BNP in Australia, that the applicant has been associated with that organisation since December 2017. The applicant provided no explanation about why he took from the time of his arrival in Australia in May 2016 until December 2017 to join that organisation. Given the timing of the applicant joining that organisation, namely some months after he applied to the Tribunal for merits review of the decision, and in combination with his concession the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record, the Tribunal concludes that the applicant only joined that organisation to strengthen his protection claims, not because of a genuine political belief. To that end, the applicant’s concession provided at the Tribunal hearing about why he joined that organisation is telling.
The letter provided by the BNP in Australia is very broad about what the applicant’s activities with that organisation are. The applicant’s oral evidence to the Tribunal was that he ‘participated in many meetings and demonstrations but the applicant provided no specifics as to what he actually did with that organisation. The applicant did not appear to claim that he faced a risk of harm in Bangladesh because of his conduct in Australia. Rather, the involvement with the BNP in Australia appeared to be produced to corroborate the narrative that the applicant was genuinely involved in political activity in Bangladesh, and that his involvement in the BNP in Australia was a continuation of that involvement (with an 18-month break following his arrival in Australia.
The Tribunal is not satisfied that the applicant has an adverse profile in Bangladesh due to his conduct in Australia. The Tribunal is not satisfied that any person, group or authority has any adverse interest in the applicant because of his activity in Australia. The Tribunal is not satisfied that any person, group or authority in Bangladesh is aware of his association with the BNP in Australia. The Tribunal is not satisfied that there is a real risk of serious harm in Bangladesh due to his association with the BNP in Australia. The Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk he will suffer significant harm due to his involvement with the BNP in Australia.
The Tribunal is comfortable making this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
CONCLUSION
The Tribunal is not satisfied that the applicant is a witness of truth about his claimed lived experiences in Bangladesh. It is not satisfied that the applicant’s father, or any family member, were politically active in Bangladesh, that his father or any family member were harmed in Bangladesh because of a political opinion, that the applicant was involved in any political activity in Bangladesh, that he experienced harm in Bangladesh in connection with his political opinion (or any other reason) in Bangladesh, that he left Bangladesh on any occasions because of his claimed past experiences of harm in that country or due to a fear of future harm in that country, or that he came to Australia because he feared future harm in Bangladesh, or that the reason the applicant refuses to return to Bangladesh is due to a genuine fear of harm in that country.

The Tribunal is satisfied that the applicant’s claims are manufactured in their entirety and were fabricated in order to be granted a protection visa. The Tribunal rejects the applicant’s claims in their entirety. He is of no adverse interest to any person, group or authority in Bangladesh.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real risk the applicant will suffer serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
For the reasons given above, the Tribunal is not satisfied that the are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2023] AATA 3383

18 July 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction