1714641 (Refugee)

1714641 (Refugee) [2023] AATA 2379 (10 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714641
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tamara Hamilton-Noy
DATE:10 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 10 May 2023 at 10:25am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – ethnicity and political opinion – family background Pakistani – member of youth wing of political party – abuse, threats and beatings from supporters of opposing party, and attempted kidnapping – credibility – inconsistent claims and evidence – level of political activity – supporter and donor rather than active member – delay in departing after visa granted – application written by third party – members of family unit – Australian-born child – second child born after application made – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The [first named applicant] (the applicant) and the [second named applicant] (the applicant wife) arrived in Australia [in] December 2014 and lodged a protection application on 8 January 2015.
The [third named applicant] (the applicant child) was born in Australia on [Date].
On 4 May 2017, a delegate of the Department found that the applicants were not individuals to whom Australia owes protection obligations.
The applicants made an application to the Administrative Appeals Tribunal on 7 July 2017 for an independent review of that decision.
Claims and Evidence
In the written protection applicant, the applicant stated that he is from [Location], [Suburb], Narayangang in Dhaka, Bangladesh. He stated that his father and grandfather were born in Pakistan and that his ancestors were from Karachi, Pakistan. The applicant stated that his family was involved in Muslim League politics in Pakistan and their source of income was from their business. He stated that his grandfather was a leader of the Muslim League in Pakistan and his father used to look after the business. While his father supported the Muslim League, he didn’t hold a position or post in the party. After India’s partition in 1947, his father moved to Dhaka and set up [a] business and eventually they lived a ‘solvent’ life in Dhaka. After 1971 his family tried to return to Pakistan but couldn’t because of hostility between the two countries and all their properties were in Dhaka. Their business had been destroyed in the war between West and East Pakistan and in 1972 his family shifted from Dhaka to Narayangarj. His father was taken to jail without a case or a warrant and was in jail for a few months in 1973 and the applicant’s family was ‘dropped into big trouble’. His father tried to sell his properties after release from jail but couldn’t sell much and after that incident was unable to add much to the family income because he became a patient and was talking a lot of medication daily.
The applicant stated that, since then, his uncle was looking after the family and had a small business. The applicant and his brothers helped his uncle in his business, but their family situation worsened and the applicant was growing up without much care and affection. When he started attending primary school, he was from a different ethnicity, race and culture and his schoolmates treated him differently and as though he was inferior and he was sometimes called a refugee. He completed high school in the same way. He felt like he was not Bangladeshi.
The applicant stated that, because his family’s origin is Pakistani and Jamat-E-Islam (JI) is part of the Pakistani Muslim League, he started supporting JI from the beginning of his student life. As of 2001, JI formed a coalition with the Bangladesh Nationalist Party (BNP) but he changed political parties and started participating in the ‘Jubo Dal’ of the BNP. In 2002 he was given a leadership position in Jubo Dal and since then he has been involved in BNP politics. As a leader of Jubo Dal, he gained a lot of political power and administrative power. He started concentrating on his ancestors’ business in his area and was helping family members with their studies and careers. In 2008 the BNP government was toppled and Awami League (AL) formed government and a lot of people from the opposition party were sent to jail. Although the applicant had never harmed people or property, leaders of AL became ‘very cruel’ to him, started threatening him with a lot of powers and beat him several times without any reason.
The applicant stated that after he was married in 2012, he faced a lot of trouble from known and unknown leaders of AL because he was a political leader of BNP. On 23 May 2014, some people from AL came to capture the applicant and some of his neighbour’s land and the applicant and his neighbours opposed this. One man was killed and others were injured in front of thousands of people. The applicant was bashed brutally and several of his relatives and neighbours were injured. The applicant nearly died and was taken to hospital. After his recovery he found out that other people from the party were wanting to kill him.
The applicant stated that on 10 June, he went to his house at night with his cousin and was almost kidnapped but somehow he escaped with the help of his cousin. After that he didn’t return to his house in [Location], although he was living in Narayanganj district. He heard that there was money on his head. He left Bangladesh because he was in fear of his life, they threated to kill him, and on a number of occasions people came to his home and tried to kill him. He was constantly abused and threatened by AL leaders. He is positive that if he returns to Bangladesh he will be killed, physically abused, will not be afforded the same rights and privileges as members of the BNP, and will face physical assault, kidnapping torture and death at the hands of AL. The authorities are involved in harm and attacks on BNP leaders.
The applicants were invited to attend an interview with the Department on 19 April 2017 and did not attend the interview.
A delegate of the Department found that the applicant’s claims were vague and had not been substantiated and his failure to attend the interview offered to him caused the delegate concerns that he held a genuine fear of harm. The delegate noted that the applicant claimed to come from an affluent family and that, aside from his father being jailed in 1973, the family had lived a relatively free life in Bangladesh. The delegate did not accept the applicant held a position within Jubo Dal or that he foiled a kidnapping after being brutally assaulted only a few weeks earlier. The applicant’s delay in travelling to Australia after his visa was granted also caused doubt for the delegate about the applicant’s claims. The delegate did not accept the applicant feared for his safety in Bangladesh and was not satisfied he is a refugee or is owed complementary protection. The delegate was not satisfied the applicant wife, as a member of the same family unit as the applicant, was owed protection.
A copy of the delegate’s decision was provided to the Tribunal by the applicants.
The applicant and applicant wife appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. Prior to the hearing, on 11 September 2022, the applicants provided written submissions to the Tribunal, the relevant parts of which are referred to further below.
The applicant appeared at a resumed hearing on 11 October 2022 to give evidence and present arguments. Following the hearing, the Tribunal wrote to the applicants under s 424A, inviting them to comment on a range of information. The applicants provided a response to the s 424A information and this information and the applicants’ response are discussed further below.
The relevant legislation
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.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Consideration of claims and evidence
The issue in this case is whether the applicants meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c), that is whether they are a ‘refugee’ or are owed complementary protection, or are a member of the same family unit as such as person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant and applicant wife travelled to Australia on Bangladesh passports and have at all times maintained they are citizens of Bangladesh. The Tribunal accepts the applicant and applicant wife are citizens of Bangladesh and has assessed their claims against Bangladesh as their country of nationality.
The Tribunal accepts that the applicant child was born in Australia in [Year]. As a child of a Bangladeshi man, the applicant child is a Bangladeshi citizen once her birth is registered.[1] The Tribunal accepts that the applicant child’s receiving country for the purposes of this decision is Bangladesh.
Certificated information
[1] Immigration and Refugee Board of Canada, ‘Bangladesh: Information on whether someone obtains Bangladeshi citizenship by marriage to a Bangladeshi citizen and whether a child born outside of Bangladesh to a man who is a Bangladeshi citizen will obtain Bangladeshi citizenship by virtue of the father’s citizenship’, 1 December 1994 at
The Tribunal had before it two certificates issued under s 438 and considered the certificates valid. The applicants were provided a copy of the certificates and were invited to comment on their validity.
The Tribunal did not place any weight on the certificated information on the basis that one piece of information was unclear and the other piece of information related largely to the applicant’s other family members. Given the Tribunal did not place any weight on the certificated information, this information was not discussed with the applicants at hearing.
Department interview
The applicants were invited to attend an interview with a delegate of the Department on 19 April 2017 and did not attend this interview.
The applicants provided written submissions to the Tribunal prior to the hearing about their failure to attend the Department’s interview. The applicants stated that they had not been informed of the interview. They provided a copy of an Ombudsman’s complaint regarding the unexpected cancellation of their Medicare card in which they had noted they had not been aware a decision had been made by the Department in their case. The applicant gave evidence to the Tribunal at hearing that he had not been notified of the interview details. The Tribunal is prepared to accept that the applicants were not notified of the Department interview and has not placed any weight on, or drawn any adverse inferences from, the applicants’ non-attendance at the Department interview.
The applicants’ backgrounds
The applicant gave evidence to the Tribunal at hearing that he was born in Naragaganj in [Location], [Suburb], in a village on the outskirts of the city. He told the Tribunal that his grandparents were born in Karachi, Pakistan, and that his grandfather came to Bangladesh after India and Pakistan divided and was later unable to move back to Pakistan. The applicant stated that his brother is now living in the family home, that his mother passed away when he was young and that his father has passed away since he has arrived in Australia. He stated that he has another brother in [Country]. He stated that his mother didn’t work and his father ran a business which involved [sub-businesses]. The applicant stated that the applicant wife’s [brothers] are living in Australia.
The applicant gave evidence that he studied up to Year [grade] in Bangladesh and that he ran his own [business] in a small factory from 2007 onwards. He stated that the business was closed down in 2014. He stated that he has undertaken [work] in Australia and that the applicant wife has not worked either in Bangladesh or in Australia.
The applicant gave evidence that the applicant wife is his cousin and that their marriage was organised by their families, and that they were married in 2012 in [Suburb 2]. He gave evidence that they have two children: the applicant child and a second child who was born in Australia in [Year]. He stated that, at the time of the hearings, his wife was pregnant with their third child.
The applicant gave evidence that he left Bangladesh on a valid passport in his own name, as did the applicant wife. He told the Tribunal that they did not have any problems leaving Bangladesh through Dhaka Airport, that their passports have expired since arriving in Australia and that they have had these renewed in Canberra.
In the written protection application, the applicant wife stated she was born in [Location], Tongibary, Munshigonj, Dhaka and that she is of Muslim faith. She stated that her parents, [brothers] and [sisters] are all citizens of Bangladesh.
The Tribunal accepts the above matters to be true in relation to the applicant and the applicant wife.
Refugee claims
In assessing the applicant’s claims, the Tribunal must adopt a reasonable approach in making its findings in regards to credibility, based on relevant and material facts. Where ‘the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[3]
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 196.
[3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 204.
The Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal hearing and the use of interpreters. The Tribunal acknowledges there may be memory issues from the lapse of time and cultural issues which may affect how an applicant answers questions before the Tribunal. The Tribunal has had regard to its Guidelines on the Assessment of Credibility in the conduct of the hearing and in assessing the totality of the applicant’s evidence before it.
The applicant claimed in his written protection application that he had left Bangladesh after negative experiences due to his political beliefs and political activity. He also claimed at hearing to have left Bangladesh due to his political activity. However, because of the inconsistencies in the applicant’s evidence and for other reasons set out below, the Tribunal does not accept the applicant’s stated reasons for having left Bangladesh or of fearing harm upon return to Bangladesh.
Firstly, the applicant has given varying evidence about his claimed political activities in Bangladesh.
In his written protection application, the applicant claimed that he started supporting JI from the beginning of his student life and that he later changed political parties and started supporting the Jubo Dal of the BNP. The applicant claimed in the written protection application that he was made a leader of Jubo Dal in 2002 and that as a leader in Jubo Dal he gained a lot of political power and administrative power. The applicant claimed in the written protection application that he was a political leader of the BNP and that, as a political leader of the BNP, he was requested by his neighbours to help them from attacks by the opposition.
In contrast to his written claims, at the Tribunal hearing the applicant gave evidence that he used to give money in cash to the BNP and would give them posters and banners. He gave evidence that he had provided money to the BNP from around 2008 to 2013 and that between 2002 and 2008 he had not started his business and didn’t have much money and helped sometimes with his father’s money. The applicant gave evidence that he was not a member of the BNP and had never been a member of the BNP, but supported them as a business. He gave evidence that in addition to providing money and having his name on banners for the BNP, he had also attended some dinner parties and gatherings they held.

Also in contrast to his written claims, the applicant gave evidence to the Tribunal at hearing that he did not have a formal role in the BNP and that they had offered for him to become a member of the local committee but he had declined. He gave evidence to the Tribunal that he was never part of the youth wing and that they had offered him this but he had declined.
After the hearing, the Tribunal wrote to the applicants under s 424A, noting the above inconsistencies in the applicant’s claims. The Tribunal’s correspondence noted that the inconsistencies in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims, to not accept that the applicant was politically active in Bangladesh or that he provided support to the BNP by way of contributions, posters or attendance at functions or that he was a leader of the Jubo Dal or of the BNP. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept the applicant was targeted by an MP in Bangladesh, that he was assaulted or threatened, or that there was an attempted kidnapping of him. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that any of the applicants have a well-founded fear of persecution if they return to Bangladesh or that there is a real risk they would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, and may cause the Tribunal to not accept that the applicant wife or applicant child are owed protection as members of the same family unit as a person who is owed protection.
The applicants were invited to respond to this information. The applicant provided a written response in which he questioned the independence of the Tribunal from the Department, stated that he had not received any queries from the Department about discrepancies in his claims, that he missed the opportunity of an interview with the Department, that he is not well educated and his capacity for English was nil when he arrived in Australia and that he was unable to remain in Bangladesh due to political vengeance. The applicant stated that an ‘informer’, with whom he had had a domestic violence incident, had filled in the written application and made up the story on his own and had never asked the applicant anything except biographical details; that he had never read back to the applicant the answers in the application and the statement; and that whatever anomalies were found by the Tribunal were due to the informer, and does not reflect the applicant’s real situation in Bangladesh.
In his response, the applicant also stated that what he had told the Tribunal at the two hearings was correct, but not the content and information given in his protection visa application, and therefore there was no reason to find anomalies between his initial application and his statement at the hearing. The applicant provided the following information about his claimed activities in Bangladesh (paragraph numbering removed):
·In response to your queries, I would like to say that I was a ‘political sponsor’ of Bangladesh Nationalist Party (BNP). I would finance them for various purpose, e.g.: printing, banner, poster, leaflets, public meetings and demonstration. The Hon. Tribunal may have information about Bangladeshi political situation. Unlike Australia they ‘hire’ mass people (usually from slums) to gather in any public meeting and demonstration on the street. It is a normal practice in Bangladesh and it costs a lot to a political party.
·I have funded BNP for many years. As such I was branded by the people of the current ruling political party the BAL (Bangladesh Awami League) as a staunched BNP supporter and financer. That has basically jeopardized my business and safety of my personal life.
·I was not an official member of the executive body of our district BNP committee but I was one of the main financial contributors in Narayanganj district. That was the reason people identified or branded me as a BNP patron.
·The ‘Seven Murder’ in Narayanganj committed by the Parliament Member of BAL Mr. Shamin Osman and his accomplices back in April 2014. I along with a few other BNP hierarchy leaders first raised our voice and took to the street demonstrating against the ruthless murder. My brother and I jointly financed the demonstration and public meetings expenses for BNP against the parliament member. That was how I nailed my own coffin and have jeopardised my safety in Bangladesh. I became an arch enemy of Bangladesh Awami League (BAL) and its elected MP Mr. Shamim Osman.
·I was targeted by BAL for my political opinion (not being an office bearer) and association with the BNP. I already have explained to the Tribunal, in the hearing, because of that I was assaulted, attacked and threatened by the BAL people. Once I have narrowly escaped a sure death from an attack.
·I repeat, whatever I said to the Hon. Tribunal in those two hearings were all true and correct, however if you compare with the initial application and the written statement you will surely find the inconsistency. I do not rely on the content of the primary application that was lodged with the department on 08/01/2015.
·I am now waiting on a few crucial documents (Bank Cheques and bills paid to the BNP leaders) from Bangladesh which I never realised will be necessary until your Email, dated: 02/11/2022. I am advised by my political colleague, in Bangladesh, that it may take maximum six weeks (until December 2022) to endeavour that information.
·In second para of page 3 of your Email, dated: 02/11/2022, you have mentioned that I have two BAL thugs only BDT 575 (equivalent to AUD$8.00), this amount is incredibly too low. I did not mention this amount, it may have relayed in error by the interpreter. I in fact forced to give them BDT 575000 (A$8500) on that particular occasion, not only BDT 575.
·I have no hesitations to confirm that I am a diehard BNP support. I support the BNP by heart and have financially contributed for many years. This is a common practice amongst many in the Bangladeshi political arena.
·On several occasions I was offered various positions within the executive committee of BNP (Narayanganj branch) but I have refused those offer as I was very busy with my business and moreover, I did not want to come in the frontline to make ‘open-enemies’ in the BAL.
·It is a norm in Bangladesh that when you have money and you are a renowned businessman, you do not need to learn the political ideology but rather it is the party that feels privileged to have you on their side. As such, the big businessman, in Bangladesh, are often offered various positions within the executive committee which are known as ‘ornamental positions.
·I like to reiterate to the Hon. Tribunal that I am seeking protection to the Commonwealth of Australia under the UN convention as a ‘Member of a Particular social group; and for my ‘political opinion’. I am seeking justice not mercy.
·I urge the Tribunal to assess my claim in context of Bangladesh not a Western and civilised country.
The applicant did not provide any further bank statements or other documents to the Tribunal that he had indicated he would provide in his written response.
The Tribunal noted the written explanation provided by the applicant was that another individual had completed the protection application for him and had not asked anything but biographical details and had not read any information back to the applicant. The Tribunal had asked the applicant at hearing about the preparation of the written protection application and the applicant gave evidence at the hearing that his brother-in-law had completed the protection application, that he knew what had been put in the protection application, that he had told his brother-in-law what to include in the protection application and that his brother-in-law had read the information back to him. The applicant’s written explanation did not alleviate the concerns the Tribunal had about the discrepancies in his evidence, given the oral evidence he had given at hearing about the preparation of the written protection application.
The Tribunal accepts that the applicant is not well educated and that he was reliant on an interpreter at the hearing. However, these matters also do not alleviate the concerns the Tribunal has about the applicant’s evidence, as it does not accept the applicant’s evidence would vary so widely because of these matters.
The applicant’s inconsistent evidence about his experiences in Bangladesh cause the Tribunal significant doubt that he left Bangladesh for the reasons he claims or that he fears harm upon return to Bangladesh for the reasons claimed. In particular, it causes the Tribunal to have significant doubts that the applicant was involved with JI, Jubo Dal or the BNP while he was living in Bangladesh or that he had adverse experiences in Bangladesh because of his political views or political activity.
Secondly, the applicant has given different evidence about claimed attacks against him.
In the written protection application, the applicant claimed that on 24 May 2014, some people from the AL government came to capture some of his land and his neighbours’ land and that he opposed this along with many of his relatives and neighbours. The applicant claimed that one man was killed and some others were injured in front of thousands of people. The applicant claimed that he was bashed in front of the police and that many of his friends and neighbours were severely injured. The applicant claimed that he was nearly dead and was taken to hospital. The applicant also claimed in the written protection application that he had been beaten by AL leaders several times without any reason and that, on occasion, a number of people had come to his home and tried to kill him but that he had escaped somehow.
In contrast, at the Tribunal hearing, the applicant gave evidence that a local MP, Shamim Osman, had phoned him in January 2014 and demanded money and then one week later had visited the applicant at his business and that the applicant had given him 10 lakh. The applicant gave evidence that 15 days later, two musclemen had returned and demanded money and the applicant had given them 575 taka. The applicant gave evidence that he was then attacked in May at his business premises and was taken to another place and left at that place, half a kilometre away from his business on [Street], before local people had recued him and taken him to hospital.
After the hearing, the Tribunal wrote to the applicant under s 424A, noting the above inconsistencies in his claims. The Tribunal’s correspondence noted that the inconsistencies in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept the applicant was assaulted or threatened in Bangladesh, that he faced any adverse attention from anyone in Bangladesh or that he left Bangladesh because of his involvement in JI or BNP or that he fears returning to Bangladesh for these reasons. The Tribunal’s correspondence noted that the inconsistences may cause the Tribunal to not accept the applicant, applicant wife or applicant child have a well-founded fear of persecution in Bangladesh or there is a real risk they would suffer significant harm, or that the applicant wife or applicant child are owed protection as members of the same family unit as a person who is owed protection.
The applicants were invited to respond to this information. The applicant provided the response set out above in relation to all concerns raised by the Tribunal in the s 424A letter. The Tribunal has considered the explanations provided by the applicant, as noted above, that another individual completed the form for him, and that he has a low level of education and no English, but for the same reasons as those set out above, these matters do not alleviate the concerns the Tribunal has about the evidence provided by the applicant. The Tribunal does not consider it plausible that the applicant would describe an incident he claims occurred on 23 May 2014 first on his and his neighbour’s land where he was bashed and other people were injured, and later at his business where he was taken and held at another premises, if the claimed event had actually occurred.
The applicant’s varying evidence about the claimed attacks on him in Bangladesh add further doubt for the Tribunal that he left Bangladesh for the reasons he claims or that he fears harm upon return to Bangladesh for the reasons claimed.
Thirdly, the applicant has given varying evidence about a claimed attempted kidnapping in Bangladesh.
In the written protection application, the applicant claimed that on 10 June he went to his house at night and was almost kidnapped, but he somehow escaped with the help of his cousin.
In contrast, at the Tribunal hearing when asked whether anything else had happened to him aside from the claimed assault (as set out above), the applicant gave evidence no, that was all, and that ‘here and there’ there were threats and problems and demands for money. At the Tribunal hearing, the Tribunal then noted that the applicant had also claimed in his written protection application that there had been an attempted kidnapping and, in response to this, the applicant then gave evidence that this had happened and, when he came to know about this, he had left his place and his cousin had helped him at the time. The applicant gave evidence that this happened in September or October.
At the resumed hearing, the applicant then gave evidence to the Tribunal that he knew people wanted to kidnap him because people put posters up offering a prize for him to be taken or killed. The applicant gave evidence that he came to know about the intended kidnapping from a ‘confidential source’ and that he had already moved by that time so they could not get him. He gave evidence that this had occurred two and a half months after he was discharged from hospital after the assault.
After the hearing, the Tribunal wrote to the applicants under s 424A, noting the above inconsistencies in the applicant’s claims. The Tribunal’s correspondence noted that the inconsistencies in the applicant’s evidence about when an attempted kidnapping occurred and how he had found out about the attempted kidnapping may cause the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept the applicant faced an attempted kidnapping in Bangladesh, may cause the Tribunal to not accept the applicant faced any adverse attention from anyone in Bangladesh, that he left Bangladesh because of his involvement with JI or BNP, or that he fears returning to Bangladesh for these reasons. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant, applicant wife or applicant child have a well-founded fear of persecution in Bangladesh or that there is a real risk they would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, or that the applicant wife or applicant child are owed protection as members of the same family unit as a person who is owed protection.
The applicants were invited to respond to this information and provided the response as set out above. The Tribunal did not accept that the explanations provided by the applicant explained his varying evidence about a claimed kidnapping, on the basis that if the applicant had experienced a kidnapping following people putting up posters about him, he would not describe to the Tribunal that there were threats and problems ‘here and there’. Nor did the Tribunal accept that the applicant would not raise this as part of his claims until prompted to do so by the Tribunal. The manner in which the applicant gave his evidence about a claimed kidnapping causes the Tribunal significant doubts about his overall credibility and also causes the Tribunal significant doubts that there was an attempted kidnapping of him in Bangladesh, because of his political activities or political opinion, or for any other reason.
Fourth, the applicant and the applicant wife have given varying evidence about where they were living prior to leaving Bangladesh.
At the Tribunal hearing, the applicant gave evidence to the Tribunal that before leaving Bangladesh he was living in [Suburb] for three to four months at the applicant wife’s family’s home.
At the resumed hearing, the applicant gave evidence to the Tribunal that by the time of the attempted kidnapping, he had moved from his in-law’s house because he came to know that people wanted to kidnap him.
At the resumed hearing, the applicant wife told the Tribunal that the applicant was in hospital, then was living in her family home with her father and then the primary review applicant came to Australia.
After the hearing, the Tribunal wrote to the applicants under s424A, setting out the above inconsistencies and noting that these inconsistencies may cause the Tribunal to doubt that the primary review applicant had moved from his home because of an assault or an attempted kidnapping, and may cause the Tribunal to not accept that the primary review applicant faced any adverse attention from anyone in Bangladesh or that he left Bangladesh because of his involvement with JI or BNP or that he fears returning to Bangladesh for these reasons. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant, the applicant wife or the applicant child have a well-founded fear of persecution if they return to Bangladesh now or in the reasonably foreseeable future or that there is a real risk they would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept that the applicant wife or the applicant child are owed protection as members of the same family unit as a person who is owed protection.
For the same reasons as those set out above, the Tribunal did not accept that the applicant had another person complete the protection application or that he was not aware of what was in the application, on the basis of the clear evidence he gave to the Tribunal at the hearing. Nor did the Tribunal accept that the applicant’s education level or lack of English explained why he and his wife’s evidence would vary so widely as to where they were residing before leaving Bangladesh. The discrepancies in the evidence of the applicant and the applicant wife on this matter causes further doubt that the applicant left Bangladesh for the reasons he claims or that he fears returning to Bangladesh for the reasons claimed.
Fifth, the applicant has given varying evidence about his father’s experiences as a result of his political activities.
In his written protection application, the applicant said that his father was in jail for a few months in 1973 and that his family was dropped into trouble.
At the Tribunal hearing, the applicant told the Tribunal that his father supported JI and, when asked whether his had faced any adverse attention from the authorities because of his political views, the applicant told the Tribunal that he doesn’t know much about any adverse attention because he was young at the time.
At the resumed Tribunal hearing, the applicant then told the Tribunal that his father had been in jail in 1973.
After the hearing, the Tribunal wrote to the applicants under s424A, noting the above differences in the applicant’s evidence and stating that the inconsistencies between the applicant’s written claims and the evidence he gave to the Tribunal at hearing may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that the applicant’s father faced any adverse attention from authorities in Bangladesh because of his political views or activity and may cause the Tribunal to not accept that the applicant started following JI or later the BNP because of his father’s involvement in politics. The Tribunal’s correspondence noted that the discrepancies may cause the Tribunal to not accept that the applicant, the applicant wife or the applicant child have a well-founded fear of persecution if they return to Bangladesh now or in the reasonably foreseeable future, or that there is a real risk they would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, or that the applicant wife or the applicant child are owed protection as members of the same family unit as a person who is owed protection.

For the same reasons as those set out above, the explanations provided by the applicant in his written response did not alleviate the concerns of the Tribunal about his varying evidence. The Tribunal did not consider it plausible that the applicant would first give evidence at hearing that he does not know much about his father’s political activities, and would later be able to give evidence of his father being jailed. The varying evidence the applicant has given the Tribunal about his father’s imprisonment causes further doubt for the Tribunal about his credibility and about his claims for protection.
For the above reasons, the Tribunal does not accept that the applicant supported JI as a student, that he supported Jubo Dal or the BNP, that he held a leadership position in Jubo Dal through which he gained political and administrative power, that he was offered to become a member of the local BNP committee or the youth wing, or that he was offered various positions with local committees of the BNP. The Tribunal does not accept the applicant supported the BNP financially, that he gave the BNP posters or banners, that he demonstrated with the BNP or that he supported them as a business or that he attended BNP dinner parties and gatherings. The Tribunal does not accept the applicant faced trouble because he was a political leader of the BNP, that he was branded by the AL as a staunch supporter of the BNP, or that his business or safety were jeopardised.
For the same reasons, the Tribunal does not accept that leaders of AL were cruel to the applicant, that they beat him several times without reason, that he faced trouble from the AL because he was a political leader of the BNP or that he was targeted by the AL for his political opinion. The Tribunal does not accept that people threatened to kill the applicant, that people came to his home and tried to kill him, that he was constantly abused and threatened by AL leaders, that he was assaulted, attacked and threatened by AL members, or that he once narrowly escaped death from an attack.
The Tribunal has carefully considered the claimed experiences of the applicant in Bangladesh and, for the reasons set out above, does not accept the applicant’s claims are credible. Because of this, the Tribunal does not accept that on 23 May 2014 or on any other date, people came to the applicant and his neighbour’s land to capture the applicant, that an individual was killed and others were injured, that the applicant was bashed brutally, that several of his relatives and neighbours were injured or that the applicant subsequently found out that people wanted to kill him. Nor does the Tribunal accept that a local MP, Shamin Osman, had phoned the applicant in January 2014 and demanded money, that he had sent musclemen to collect money from the applicant, or that on 23 May 2014, or on any other date, the applicant was attacked at his business, was taken and held at another location, or that local people rescued him and took him to hospital.
The Tribunal has also carefully considered the applicant’s claims to have been subject to an attempted kidnapping and, for the reasons set out above, does not accept that on 10 June 2014 or on any other date the applicant was at his house with his cousin and was almost kidnapped but escaped. Nor does the Tribunal accept that he knew people wanted to kidnap him because posters were put up and a prize was offered, or that he found out about an intended kidnapping from a confidential source. The Tribunal does not accept the applicant was housebound after an attempted kidnapping, or that he was in hiding at another location before he left Bangladesh or that he was hiding at his in-laws’ house.
Given the concerns the Tribunal has about the applicant’s claims that his father was jailed in 1973 for his political opinion, as set out above, the Tribunal does not accept the applicant’s father was jailed for several months in 1973.
The Tribunal does not accept the applicant had a political profile in Bangladesh or that he experienced harm in Bangladesh because of his political opinion. The applicant does not claim to have taken part in any political activities since arriving in Australia. The Tribunal does not accept the applicant would be politically active if he returns to Bangladesh now or in the reasonably foreseeable future, on the basis that it does not accept he was previously politically active in Bangladesh or has been politically active in Australia. The Tribunal finds there is not a real chance the applicant faces serious harm in Bangladesh, now or in the reasonably foreseeable future, because of his political opinion or imputed political opinion. The applicant stated in his written response to the Tribunal’s 424A letter that he fears harm in Bangladesh for reasons of his membership of a particular social group. He did not specify what the social group is. For the same reasons as those set out above, the Tribunal finds there is not a real chance the applicant faces serious harm in Bangladesh, now or in the reasonably foreseeable future, because of his membership of the particular social group of persons who are politically active, persons who have been involved in Bangladesh politics, or for any other reason.
The Tribunal accepts that, if he returns to Bangladesh, the applicant would be a returnee from a Western country.
The Tribunal notes that at the time the hearings were conducted with the applicant, the most recent DFAT report for Bangladesh had been published on 22 August 2019. Subsequent to the hearings, and prior to the finalisation of this decision, an updated DFAT report was published in respect of Bangladesh on 30 November 2022. The Tribunal considered the country information discussed with the applicant at hearing and that contained in the new report and considered that the information discussed with the applicant at hearing was consistent with the information set out in the new DFAT report that is relevant to the applicant’s claims. For this reason, the Tribunal did not invite the applicant to a resumed hearing to discuss the contents of the new DFAT report.
The Tribunal noted at the hearing that tens of thousands of Bangladeshis enter and exit Bangladesh each year and it is considered unlikely that the authorities have the capacity to check on or monitor each person. The vast majority of Bangladeshis will return without incident. DFAT assesses that most returnees are unlikely to face adverse attention from the authorities although the authorities may have some interest in high profile individuals who are returning.[4]
[4] DFAT Country Information Report Bangladesh, 30 November 2022, at 5.25 & 5.26.
The above information was discussed with the applicant at hearing and he stated he did not want to comment on this information.
The Tribunal finds that, if he returns to Bangladesh now or in the reasonably foreseeable future, the applicant would return as one of tens of thousands of returnees to Bangladesh. The Tribunal finds that the applicant does not have a profile with the authorities and that the chance of him facing any adverse attention from the authorities is therefore remote. The Tribunal finds that there is not a real chance the applicant faces serious harm in Bangladesh as a returnee from Australia.
For the reasons given above, the Tribunal is not satisfied the applicant is owed protection under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed form Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
For the reasons set out above, the Tribunal has not accepted the applicant was politically active in Bangladesh or that he would be politically active upon return to Bangladesh, or that he is at risk of any harm as a returnee to Bangladesh. For the same reasons, the Tribunal finds that there is not a real risk the applicant will suffer significant harm in Bangladesh as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.
Claims of the second and third named applicants
The applicant wife and applicant child have not made their own claims for protection and the applicant wife told the Tribunal that she left Bangladesh because of her husband’s claims.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
As the Tribunal does not accept the applicant is at risk of harm in Bangladesh, it does not accept the applicant wife or applicant child face a real chance of serious harm in Bangladesh now or in the reasonably foreseeable future, or that there is a real risk the applicant wife or applicant child face a real risk of significant harm if removed from Australia to Bangladesh.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Tamara Hamilton-Noy
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 2379

10 May 2023

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