1715072 (Refugee)

1715072 (Refugee) [2023] AATA 2786 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Md Nurul Huq (MARN: 0005656)
CASE NUMBER: 1715072

COUNTRY OF REFERENCE: Bangladesh
MEMBER:L. Symons
DATE:31 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 May 2023 at 5:39pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party Student wing member – physical assault – fear of torture – return visit to Bangladesh – detention of family member – torture – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Bangladesh, first arrived in Australia [in] March 2015 as the holder of a subclass 600 Visitor visa. On 15 April 2015, he was granted a Bridging A visa in association with his application for a Protection visa and remains on this visa.
The applicant applied for the Protection visa on 13 April 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has any protection obligations. On 18 July 2017, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 17 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his migration agent, Mr Nurul Huq, who attended the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·As a student he was an active member of the Jatiya Chatra Dal, the Student wing of the Bangladesh Nationalist Party (BNP).
·When he was a student in 2007, he was assaulted a few times by Awami League (AL) supporters who were Chatra League activists. He wanted to report the assaults to the local Police but the Police always support the ruling party and did not show any interest in writing his report.
·His father is a supporter of the BNP and was an elected Union Council Member for their locality. His brothers, [Brother A] and [Brother B], were active in the Jatiya Chatra Dal. His family was known in the locality as BNP supporters.
·During the caretaker government in Bangladesh in 2007, he and his brother, [Brother A], were charged by the Police because of their Chatra Dal activities. They absconded to avoid arrest. He went to Dhaka, arranged an employment visa for [Country 1] and went to [Country 1] in April 2007. The Police are looking for him to arrest him. He remained in [Country 1] to avoid arrest and torture. From [Country 1] he came to Australia to save his life.
·The AL came into power in 2009 and the authorities started to round up, arrest and torture BNP activists and leaders across Bangladesh. In 2012, the Police arrested his brother, [Brother A], and tortured him. He was subsequently released on bail. He arranged for his brother, [Brother A], to obtain an employment visa for [Country 1] and he went to [Country 1] in 2013. He is currently living in [Country 1].
·He returned to Bangladesh for one month in March 2013 to attend his grandmother’s funeral. He remained in the family home to avoid arrest or detention and returned to [Country 1].
·His brother, [Brother B], was involved in the Chatra Dal and BNP political activities. [In] November 2013, the local BNP leaders conducted a demonstration or protest against the AL. The Police made a few arrests and laid false charges against BNP leaders including his brother, [Brother B]. He went to Dhaka to avoid arrest.
·His employment visa in [Country 1] was due to expire in June 2015 and he was concerned about his future. He tried to obtain a further employment visa in [Country 1] but was unable to do so. He was concerned he would be charged again if he returned to Bangladesh. He then met someone who helped him to get an Australian visa and he arrived in Australia [in] March 2015.
·He went to [Country 1] to avoid arrest and torture by the Police and anti-BNP activists in Bangladesh. If he returns to Bangladesh there is every possibility that he will be arrested, tortured and imprisoned like his brother. He is fearful to return to Bangladesh because of his previous political activities in Bangladesh.
·The authorities in Bangladesh will not protect him. They are against the BNP and the Chatra Dal activists and leaders in Bangladesh. The authorities are trying to eliminate the BNP supporters and activists so they can rule the country as they wish. There is no chance they will protect him.
·He will not be able to relocate within Bangladesh to avoid torture, arrest and persecution. His visa for [Country 1] is about to expire and he has no option but to return to Bangladesh.
The applicant provided the Department with a copy of his Bangladeshi passport issued [in] 2014 and valid until [2019] and [Country 1] Temporary Employment visas for the periods [December] 2012 to [June] 2013, [June] 2013 to [June] 2014 and [July] 2014 to [June] 2015. He also provided copies of a letter dated [in] June 2015 from the President of the BNP at [Location 1], a First Information Report (FIR) dated [in] November 2013 in relation to [Brother B], three photographs of men at a rally, screenshots from a video on an MP4 and printouts of the search results for ‘treatment to BNP party members by authority in Bangladesh’, ‘Police corruption in Bangladesh’ and ‘detention before trail in Bangladesh’ (sic) on the Google Search Engine without the country information.
The applicant’s migration agent filed written submissions dated 5 April 2015 with the Department. In his written submissions, he reiterated the applicant’s claims and submitted that he is likely to face arrest and torture by the Bangladeshi authorities because of his political opinion and activities in the past. He submitted that he should be recognised as a refugee.
The applicant attended an interview with the Department on 21 October 2015. During the interview, he reiterated and expanded on his written claims. He also made the following new claims:
·His brother, [Brother A variant], was arrested, beaten and tortured in February 2013 after he was detained during a protest. If he returns to Bangladesh, he will suffer the same fate.
·When he returned to Bangladesh in April 2013 to attend his grandmother’s funeral the situation was so bad that immediately after the prayer for the dead, he left his home and was in hiding in different places.
·He is still wanted for arrest. When he left Bangladesh in 2007 there was a case against him. The Caretaker Government was in power. His parents and lawyers went to Court and asked for bail. When he returned for his grandmother’s funeral, he realised that it was not the Police but the AL that had his name on a list.
·The Police are continually looking for his brother and father. As a result, his father left their family home and was moving from place to place. Because his father is old now, they always ask him where his son is.
·He had dinner with BNP supporters in [Country 1]. When [an official] of the BNP visited [Country 1], he met him, shook his hand and told him about his life. He had not joined any BNP groups or attended any BNP meetings in Australia. He had a link with them on Facebook.
On 21 June 2017, the Departmental delegate found that the applicant was not a person in respect of whom Australia has protection obligations. His application for a Protection visa was refused on 21 June 2017.
The applicant has filed with the Tribunal copies of the Department’s Decision Record dated 21 June 2017. He has also filed copies of a FIR dated [in] December 2013 in relation to [Brother B variant], a FIR dated [in] January 2015 in relation to [Brother B variant], a Charge Sheet dated [in] May 2014 in relation to [Brother B variant], a document titled Accused [Name] dated [in] February 2018 in relation to [Brother B variant], a FIR dated [in] September 2018 in relation to [Brother B names variant], a FIR dated [in] October 2018 in relation to [Leader A], an Inquest Report dated [in] October 2018 in relation to [Leader A], two photographs of what appeared to be a dead man, a Statement from his sister, [Sister A] dated [in] October 2018, a document titled ‘Seizer List’ and dated [in] September 2018, a letter dated [in] October 2018 from the Residential Medical Officer at [Hospital 1], Brahmanbaria to the Officer in Charge of the [Police Station 1], a letter dated [in] April 2019 from the President of the BNP Chattra Dal, [Location 1] Upazilla branch, a letter dated [in] May 2019 from the General Secretary of the BNP, [Location 1] Upazilla branch, a letter dated [in] May 2019 from the President of the BNP, [Branch 1], a letter dated [in] December 2018 from the [Position 1] of the [Location 2] Union Council, a letter dated [in] May 2022 from his father and fifteen photographs.
The applicant’s migration agent has filed with the Tribunal written submissions dated 25 March 2022.
Receiving country
The applicant claims to be a citizen of Bangladesh and has provided a copy of the biodata page of his Bangladeshi passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Bangladesh. The Tribunal finds that Bangladesh is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Assessment of claims
The applicant gave evidence that his application for a Protection visa, including his Statement of Claims, was prepared by his migration agent based on his instructions which were true and correct. He was satisfied that his visa application, including his Statement of Claims, are accurate and complete.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Bangladesh, his travel to and employment in [Country 1], why he returned to Bangladesh, why he left [Country 1], his travel to Australia and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, implausible and unconvincing. There were many inconsistencies in his evidence. He made significant new claims throughout the process. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:
First, in his application for a Protection visa, the applicant claimed that his father is involved with the BNP and was an elected Union Council Member for their locality. As a student he was a member of the Jatiya Chatra Dal, the Student wing of the BNP. His brothers, [Brother A] and [Brother B], were active in the Jatiya Chatra Dal. His family was known in the locality as BNP supporters.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 June 2017. It indicates that he attended an interview with the Department on 21 October 2015 and stated that his father was an elected member of the Local Council for 5 years. He contested one election but, because of irregularities in broadcasting, he failed in that election. He understands that the election was in 2011 or 2012 but was unable to offer further detail. His father was the [Position 1] of the local BNP and communicated with the local BNP party.
During the hearing, the applicant gave evidence that his father was elected to the position of [Position 2] in their local area and had connections with the Member of Parliament and top leaders in their area. He was the main organiser and participant in relation to processions, meetings and activities in their area. When asked when his father was elected to that position, he responded that he was elected in 2004 or 2005 for five years. He then stated that he was elected in 2003 or 2004. He ran for election again but the AL rigged the elections, the ballot papers were stolen and his father lost. There was plenty of corruption.
The Tribunal asked the applicant whether his father held any other positions in the BNP. He responded that his father was the “main leader” in the BNP in their area. When asked whether his father currently has a position in the BNP, he responded that he is the main person in [Area 1] above the Union. When asked how his father is able to have this position if he is not living at home (as claimed), he responded that he is very popular in the area. People like him and listen to what he says. Even if he is in hiding, he can communicate over the telephone and through people.
The applicant provided the Department and the Tribunal with photographs of a group of men holding up a banner. During the hearing, he identified his father as one of those men. He stated that one of the photographs was taken during a procession in about 2015. The (local) MP was in the middle and his father was on one corner holding up the banner. Another photograph was taken in Dhaka before the election in 2018 and prior to nominations being submitted. The MP was there canvassing and his father was also there. Another photograph showed his father’s hand on the right. He thought it was taken in 2015. (Two of these photographs appear to have been taken on the same date as all the men holding the banner are dressed in identical clothes.
The applicant provided the Tribunal with a statement dated [in] May 2022 from his father, [Father A]. The statement is written in English and there is nothing on it to indicate that it has been translated from Bengali to English. The Tribunal has not been provided with a copy of the statement in Bengali. In the statement, his father stated that he was a member of the [Location 2] Union Council. He made no mention of being the former [Position 1] (as the applicant claimed at his interview with the Department) or the former [Position 2] (as the applicant claimed at the hearing). Under his signature he stated his name, “former member, [Location 2] Union Council and leader of the BNP, [Location 1] Upazila Section. However, there was also a stamp with the words “[Father A], [Position 2], Bangladesh National Party, [Location 2] Union section.” The statement was on a BNP letterhead for the [Location 2] Union branch with two BNP emblems on it.
This letter raises a number of questions for the Tribunal. Firstly, why does the applicant’s father have a stamp in English with his name and the title of [Position 2] of the Bangladesh National Party, [Location 2] Union section particularly when he refers to himself as a former member of the [Location 2] Union Council and makes no mention of being the [Position 2] of the [Location 2] Union Council? Secondly, why does the stamp refer to the ‘Bangladesh National Party’ when, according to the BNP Constitution[1] the correct name of the party is ‘Bangladesh Nationalist Party’ and not ‘Bangladesh National Party’ as referred to in the stamp? Thirdly, why does the stamp refer to him as ‘[Position 2]’ but his title under his signature and name is ‘Former Member’? Fourthly, why is he using a BNP letterhead for the [Location 2] Union branch when he is no longer a member of the [Location 2] Union Council, has not been one for a number of years and is supposedly living out of home and in hiding? Fifthly, who wrote this letter? The applicant’s evidence to the Tribunal is that his father can read English but cannot write English.
[1] Bangladesh Nationalist Party – Constitution (Constitution of BNP (shujan.org))

These questions raise issues in relation to the authenticity of this document and the veracity of the information contained in the document including the extent of the applicant’s father’s involvement in the BNP. This is exacerbated by the inconsistencies in the applicant’s evidence in relation to his father’s role in the BNP including his current role. The Tribunal finds it implausible that his father is currently “the main person in the [Area 1] area above the Union” despite the fact that he is no longer a member or office bearer of the [Location 2] Union Council, has not been for several years and is supposedly not living at home and is in hiding.
The Tribunal raised as an issue with the applicant its concerns in relation to his claims about the extent of his father’s involvement with the BNP. He responded that his father was an elected member of Council. He stood again in the next election but did not win because it was rigged. His father is a BNP party leader and Councillor of the local Union. His family owns ancestral lands inherited from his grandfather. The land is being farmed and they employ people to do the farming and tilling. His father overseas the whole operation. When his father was a Councillor, he got tenders to repair roads and also did this at that time.
In his response, the applicant did not explain how his father is currently the “main person in [Area 1]” and continues to oversee the farming on his agricultural lands despite not living at home and being in hiding. The above issues raise concerns in relation to his credibility and the veracity of his claims.
Second, in his application for a Protection visa, the applicant claimed that, as a student, he was an active member of the Jatiya Chatra Dal, the Student wing of the BNP. He did not provide details of what activities he was involved in or claim to have been an office bearer in the Jatiya Chatra Dal in Bangladesh. He made no claims in relation to having joined any BNP groups in [Country 1] or Australia.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 June 2017. It indicates that during his interview with the Department on 21 October 2015 he was asked what sort of political activities he was involved in prior to his departure from Bangladesh in 2007. He responded that he attended almost all political meetings. When he started College, he dedicated himself to the activities of the party. The delegate asked him whether he had joined any BNP groups in [Country 1]. He responded that he would have dinner with BNP supporters. On one occasion, he met [an official] of the BNP when he visited [Country 1]. He shook his hand and told him about his life. When asked whether he had joined any BNP groups in Australia, he responded no. He kept in touch with them on Facebook.
During the hearing, the Tribunal asked the applicant what activities he participated in when involved in student politics. He responded that he participated in all the College programs including organising and taking part in meetings and processions and talking to people. He was appointed to the position of [Position 3]. He then stated that he was the [Position 3A] which is just below the [Position 2]. When asked about his duties as the [Position 3A], he responded that he had to organise all the programs, organise the marches, make speeches and talk to people about their points of view. When asked how his duties deferred from those of the [Position 2], he responded that the [Position 2] gave them directions and they implemented the plans and programs. Later in the hearing, he claimed that they organised cultural programs. They took people to Dhaka in cars and trucks to attend rallies.
The Tribunal asked the applicant whether he was involved in any BNP groups in [Country 1]. He responded that he was invited to a BNP celebration in 2014 when he was in [Country 1]. The [Official 1’s] son attended the celebration and they shook hands with him. He told him what he had been through. There were plenty of programs that he was involved in in [Country 1]. When asked whether he had joined any BNP groups in Australia, he responded “Yes. Plenty”. Whenever anything happens, they contact him and he attends all the programs they have here.
The Tribunal asked the applicant which BNP group he had joined in Australia. He responded that there are two groups in Australia and both groups contact him. He is in contact with the [named] committee. When asked when he joined a BNP group in Australia, he responded that when he arrived in Australia in 2015, he contacted them. After one and a half months of his arrival, he regularly attended all programs. All the people aligned with the BNP know him. He is a member of the organisations and the leadership in Australia are going to give him more responsibilities. When asked what activities he has been involved in in Australia, he responded that they celebrate Bangladesh’s Independence Day, the day the party was founded and the birthdays of their leaders. During the Covid pandemic, they organised some relief work and he volunteered to be part of that.
The applicant has provided the Tribunal with some photographs of him being involved in various activities in Australia. Two of the photographs are of a group of men, including the applicant, in a room standing in front of a banner with photographs of BNP leaders. He stated that they were taken in 2016 or 2017 when the leader was visiting from Bangladesh. A third photograph is of three men seated in front of a BNP banner in the background with his face superimposed in the foreground. He stated that this was taken after a meeting in 2014. The evidence before the Tribunal is that he arrived in Australia [in] March 2015 and was therefore not in Australia in 2014.
The fourth photograph is of a group of men in Darling Harbour holding a large banner and placards. The applicant stated that this was a protest at Darling Harbour when the Bangladeshi Prime Minister visited Australia in 2016 or 2017. (The country information indicates that this visit was in April 2018). [2]A fifth photograph is taken at night and shows a group of men wearing yellow t-shirts with something printed on them. He stated that this photograph was taken in 2020 or early 2021 when he was helping with Covid relief.
[2] PM Hasina leaves Sydney to return home, Financial Express, 29 April 2018. (PM Hasina leaves Sydney to return home | The Financial Express)
The applicant has provided the Department and the Tribunal with letters of support from Bangladesh in relation to his political activities in Bangladesh. He provided the Department with a letter dated [in] June 2015 from the [Position 2] of the BNP at [Location 1]. He provided the Tribunal with a letter dated [in] April 2019 from the [Position 2] of the BNP Chattra Dal, [Location 1] Upazilla branch, a letter dated [in] May 2019 from the [Position 3A] of the BNP, [Location 1] Upazilla branch, a letter dated [in] May 2019 from the [Position 2] of the BNP, [Branch 1] and a letter dated [in] December 2018 from the [Position 2] of the [Location 2] Union Council.
The letter dated [in] June 2015 from the [Position 2] of the BNP at [Location 1] refers to the applicant’s activities in support of the Chatra Dal but does not provide details of those activities or mention that the applicant held any position in the Chatra Dal. It refers to him and his brother, [Brother A variant], being charged and “haunted by Police”. It refers to his brother, [Brother B], having absconded to avoid arrest as serious charges have been laid against him. It indicates that he is at risk of arrest and torture if he returns to Bangladesh.
The phrase “haunted by Police” is an unusual turn of phrase and one that the Tribunal has seen in other documents filed in this case such as for example the applicant’s statement of claims and his migration agent’s submissions. The Tribunal is uncertain as to whether this is a typographical error and should be “hunted” or whether it is a stylistic description used by the author or authors. It is implausible that different authors in different countries at different times would make the same typographical error or, alternatively, use this unusual turn of phrase. This raises issues about the authenticity of this document.
The letter dated [in] April 2019 from the [Position 2] of the BNP Chattra Dal, [Location 1] Upazilla branch refers to the applicant being a very well-known activist “for his great speech, invaluable political knowledge and leadership power”. The letter does not provide details of his activism or mention that he held any position in the Chatra Dal. It indicates that opposition activists are insecure in Bangladesh and he advises the applicant to stay safe somewhere abroad and wait for a suitable time and situation to return.
The letter dated [in] May 2019 from the [Position 3A] of the BNP, [Location 1] Upazilla branch, refers to the applicant being a political colleague and leader of the Jatiotabadi Chattra Dal. It also refers to him as the [Position 3B] of the [Location 1] College and that he worked as a member of the Jatiotabadi Chattra Dal. It did not provide details of his activities. It referred to a tough time for the opposition party and referred to the death of [Leader A] who “died of conspiracy by the AL caders”. (sic) It indicates that the applicant’s life would not be safe in Bangladesh and he should not return to Bangladesh.
The first two paragraphs of the letter dated [in] May 2019, from the [Position 2]of the BNP, [Branch 1], referred to above are identical to the first two paragraphs of this letter dated [in] May 2019 from the [Position 3A] of the BNP, [Location 1] Upazilla branch despite having been written by two different people, from two different branches on two different dates. It is implausible that this is a coincidence. This raises issues about the authenticity of these two documents.
The letter dated [in] December 2018 is from [Leader A], the [Position 2] of the [Location 2] Union Council. It indicates that the author has known the applicant since birth and also knows his family. His support of the BNP caused him to leave the country to save his life. He and his family were persecuted and oppressed since the AL government came into power. It refers to a male cousin being killed a few days ago by AL activists and stated that his life would be in danger if he returned to Bangladesh. Coincidentally the applicant’s cousin/brother-in-law is called [Leader A] and he is older than the applicant so he would have known him since birth and also know his family. His cousin/brother-in-law was not killed a few days prior to [a day in] December 2018. He was killed on [a day in] October 2018.
It is not clear to the Tribunal whether this letter was written by someone who has the same name and comes from the same area as the applicant’s cousin/brother-in-law or whether this letter was written on the applicant’s cousin/brother-in-law’s letterhead by someone else after his death.
The evidence before the Tribunal indicates that the applicant’s evidence has evolved over time, he has introduced new claims and his claims have become more grandiose. For instance, in his visa application, he claimed that he was an active member of the Jatiya Chatra Dal but did not claim to be an office bearer. At his interview with the Department, he claimed that his political activities involved attending almost all political meetings. Again, he did not claim to be an office bearer. However, at the hearing, he made new claims that he organised and participated in meetings, processions and marches, organised all the programs, implemented plans and programs, made speeches and talked to people. He also claimed that he was the [Position 3] or, alternatively, the [Position 3A] of the organisation.
Further, in his visa application, the applicant made no claims in relation to being involved with BNP groups in [Country 1] or Australia. At his interview with the Department on 21 October 2015, he claimed that he would have dinner with BNP supporters in [Country 1] and on one occasion he met [an official] of the BNP when he visited [Country 1]. He had not joined any BNP groups in Australia but kept in touch with them on Facebook. However, at the hearing, he made new claims that he was invited to a BNP celebration in 2014 when he was in [Country 1] and met the [Official 1’s] son at the celebration. He was involved in “plenty of programs” when he was in [Country 1]. He also claimed that he joined a BNP group in Australia one and a half months after his arrival here in 2015 and he regularly attended all programs. The evidence before the Tribunal is that he arrived in Australia [in] March 2015. If he joined a BNP group one and a half months after his arrival here, he would have joined at the end of April 2015. However, his evidence to the delegate on 21 October 2015 was that he had not joined any BNP groups in Australia at that time.
The Tribunal raised this as an issue with the applicant. He responded that at that time he was in contact (with the BNP group in Australia) on Facebook. He could not attend the programs he was invited to. After one and a half months, he could attend regularly. At the time he was asked by the Department, he did not have “the stability of time” to tell them he had connections through Facebook and could not attend. He is now involved and can participate in programs. The Tribunal does not find his explanation to be convincing and does not accept it.
The letters of support the applicant provided are problematic for the reasons given above and there are issues about their authenticity. The Tribunal raised these issues with the applicant. He responded that he was given “different designations” during the time he was involved with the Jatiotabadi Chattra Dal. The Tribunal does not accept this explanation as he was specifically asked during the hearing whether he held any other position besides “[Position 3A]” and he did not mention being appointed the [Position 3B].
It is also of concern to the Tribunal that, despite providing a large volume of supporting documents to the Tribunal, the applicant has not provided any evidence from a BNP organisation in Australia to verify when he became a member of that organisation. It would have been a lot easier for him to obtain supporting documents from Australia than from Bangladesh.
These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
Third, in his application for a Protection visa, the applicant claimed that when he was a student in 2007, he was assaulted by AL supporters a few times. He wanted to report the assaults to the local Police but the Police always support the ruling party and did not show any interest in writing his report.
During the hearing, the Tribunal asked the applicant whether he had any problems with AL supporters or members when he was a student. He responded yes. During admissions (when new students commenced), they would recruit them into the Jatiotabadi Chattra Dal. The AL supporters would fight with them and disturb all their programs. When asked how they disturbed their programs, he responded that whenever they tried to talk to people, they would muscle in and would not let them speak to them. When they had directions from the main BNP (leaders) that meetings and processions needed to be organised, the AL supporters would turn up with the Police, disrupt their processions and attack them with whatever they could.
The applicant stated that there was a Minister in that area. He had a “set of goons” who always targeted them. Because his father was in the BNP and they were in the BNP, they were known as BNP supporters. The AL supporters would come with “arms like a chopper with a sharp blade” and chase them out. If they caught anyone, they would hit them. They used to run. He was punched “plenty of times.” When asked whether he reported these assaults to the Police, he responded that they could not go to the Police because they would not take any action. When asked again whether he ever reported an assault to the Police, he responded that he did not. His friends went to the Police but the Police did not take any action. The Police were on their side. When they protested the Police attacked them.
The Tribunal asked the applicant whether he was ever attacked by the Police when protesting. He responded that he was attacked on one occasion. They had organised a protest march and the Police chased them away. They then beat them up. He thinks this happened at the end of 2006. When asked whether this was the only time this happened to him, he responded that the Police chased him on another occasion but could not catch him.
These are new claims made by the applicant. The Tribunal would expect that if he had been attacked and beaten by the Police, he would have mentioned this in his application for a Protection visa. When the Tribunal raise this as an issue with him, he responded that he had mentioned being charged and being hit. He mentioned in his interview that he had fights with the Police when in the Chatra Dal. He does not count that as being notable unless someone was gravely hit or maimed. This is a common occurrence. The Tribunal does not find this explanation to be convincing. It is implausible that he would mention in his application for a Protection visa that the Police were looking for him to arrest him but did not think it was important to mention that he was attacked and beaten up by the Police.
The applicant’s claims in his visa application that he was assaulted by AL supporters and the Police did not show any interest when he complained about being assaulted is not consistent with his evidence to the Tribunal that he never reported an assault to the Police. His new claims in relation to the Police attacking him and beating him raise further issues about his credibility and the veracity of his claims.
Fourth, in his application for a Protection visa, the applicant claimed that, during the caretaker government in Bangladesh in 2007, he and his brother, [Brother A], were charged by the Police because of their Chatra Dal activities. They both absconded to avoid arrest. He went to Dhaka, arranged an employment visa for [Country 1] and went to [Country 1] in April 2007. He is concerned that if he returns to Bangladesh, he will be charged again. During his interview with the Department, he stated that the Police still want to arrest him.
During the hearing, the Tribunal discussed these claims with the applicant. He stated that he left Bangladesh in March 2007 to travel to [Country 1]. He was [age range] years old at the time. When asked how he organised the employment visa for [Country 1], he responded that he was in hiding in Dhaka, found out that there was someone who could organise the visa and then made arrangements through him to obtain the visa. It took nearly 4 to 5 months to get the visa. When asked how long he was in hiding in Dhaka before he left for [Country 1], he responded nearly 7 to 8 months. He then said he hid with relatives in a village prior to going to Dhaka. He was in Dhaka for 4 to 5 months.
The Tribunal asked the applicant what it was that made him decide to leave Bangladesh and travel to [Country 1]. He responded that he was targeted in his area and they had plenty of allegations against him. He could not go out or do anything and had to lie low all the time. His friends were targeted and arrested so he thought he could be next. The RAB (Rapid Action Battalion) was killing people in crossfires. This could have happened to him as well. When asked whether there was any other reason why he decided to leave Bangladesh and travel to [Country 1], he responded no. He wanted to save himself so he went to [Country 1].
The Tribunal asked the applicant whether his brother, [Brother A], went to Dhaka with him. He responded no. When asked when his brother, [Brother A], decided to leave Bangladesh and travel to [Country 1], he responded that he was in hiding in Bangladesh and could not work so he arranged for him to go to [Country 1] in 2013 or 2014. He does not know whether he has been back to Bangladesh but does not think so.

The applicant’s evidence raises a number of issues. Firstly, in his application for a Protection visa he claimed that under the caretaker government in Bangladesh in 2007 he and his brother, [Brother A], were charged by the Police because of their Chatra Dal activities and they both absconded to avoid arrest. He also claimed that he travelled to [Country 1] in April 2007. During the hearing, he initially claimed that he was in hiding in Dhaka for nearly 7 to 8 months before he left for [Country 1]. He then changed his evidence and stated that he hid with relatives in a village prior to going to Dhaka and was in Dhaka for 4 to 5 months. If he was charged in 2007, then went into hiding to avoid being arrested and departed Bangladesh for [Country 1] in April 2007, he could not have been in hiding for nearly 7 to 8 months before he left for [Country 1].
Secondly, if the applicant’s brother, [Brother A], had been charged at the same time as him and was also in hiding to avoid being arrested, the Tribunal would expect that his brother would also have made arrangements to obtain a visa to travel to [Country 1] with him in April 2007. However, he did not do so until 2013. Thirdly, during the hearing, he was asked a number of times what led to the decision to leave Bangladesh and travel to [Country 1] and he made no mention of being charged and the Police looking for him to arrest him. The Tribunal would expect him to remember this as, according to his application for a Protection visa, this was the reason that prompted him to leave Bangladesh and travel to [Country 1].
Fourthly, the applicant gave evidence to the Tribunal that his application for a Protection visa was prepared on his instructions which were true and correct and he was satisfied that his visa application was accurate. In his visa application, in response to question 82 – Previous addresses - he stated that he lived at the same address in [Village 1] from the time of his birth in [year] until he went to Dhaka in March 2007. If he was in hiding in Dhaka or anywhere else for nearly 7 to 8 months before he left for [Country 1], the Tribunal would expect him to have stopped residing at his home address at a much earlier date than March 2007.
Fifthly, as part of his application for a Protection visa, the applicant also filed a Form 80 - Personal Particulars for Assessment Including Character Assessment. At Part K – Character, question 37, he was asked a number of questions including ‘have you ever been charged with any offence that is currently awaiting legal action’ and he responded no. This contradicts his claims that he was charged with an offence or offences in 2007, the Police are looking for him to arrest him and he will be arrested if he returns to Bangladesh.
The Tribunal raised this as an issue with the applicant. He responded that he told the Department and the Tribunal that he does not know what happened in relation to that. He applied through “political lawyers” and does not know what is happening. The Tribunal noted that it asked him about three times why he left Bangladesh and went to [Country 1] and he made no mention of any charges. He responded that he told the Tribunal his name was on a list and he was framed and did not attend Court. That has happened. That was the charge he mentioned earlier. He does not know the result. It happened a long time ago. His name is on a list so this means he has a charge against him. When he was in Bangladesh he was charged. He does not know if his lawyers had it dismissed. He is outside (Bangladesh).
The applicant’s explanation is not consistent with evidence he gave during his interview with the Department. He has filed with the Tribunal a copy of the Department’s Decision Record dated 21 June 2017. It indicates that during his interview with the Department he stated that his parents settled outstanding charges against him and that is why he did not have any issues re-entering Bangladesh in 2013.
These issues raise further concerns about the applicant’s credibility and the veracity of his claims.
Fifth, in his application for a Protection visa, the applicant claimed that he left Bangladesh in April 2007 and went to [Country 1] to avoid arrest and torture by the Police and anti-BNP activists in Bangladesh. He claimed that he was unable to relocate within Bangladesh to avoid torture, arrest and persecution. He claimed that he was concerned that he would be charged again if he returned to Bangladesh. He claimed that, if he returned to Bangladesh, there was every possibility that he would be arrested, tortured and imprisoned like his brother. However, he voluntarily returned to Bangladesh in March 2013 and stayed there for one month before returning to [Country 1].
In his application for a Protection visa, the applicant claimed that he returned to Bangladesh for one month in March 2013 to attend his grandmother’s funeral. He claimed that he remained in the family home to avoid arrest or detention and returned to [Country 1].
The applicant attended an interview with the Department on 21 October 2015. During that interview he stated that he attended his paternal grandmother’s funeral (in Bangladesh) in April 2013. Later in the interview, he stated that it was his maternal grandmother’s funeral that he attended. The situation was so bad that he “barely attended the funeral” and then left the village. He did not sleep at his house because the Police always look for his family. He was in hiding and living in different places. He was asked who attended his grandmother’s funeral and responded that he was not sure how many of the family were there. He also stated that he had no issues entering or departing Bangladesh in 2013.
During the hearing, the applicant gave evidence that he returned to Bangladesh in March 2013 to attend his paternal grandmother’s funeral. When asked whether his brothers attended the funeral, he responded that he could not remember and did not see them. He was not at the front and was hiding between people. He was afraid that if the Police got wind of it, they would have arrested him. The situation was bad at that time. When asked where he lived when he returned to Bangladesh in 2013, he responded that he did not live at home and lived with one of his uncles in the area. When asked whether this was for the entire time he was in Bangladesh in 2013, he responded no. He had to move around and lived at the homes of relatives. He could not stay in one place all the time.
The Tribunal asked the applicant whether he had any problems when he visited Bangladesh in 2013. He responded that he had to lie low. He attended the funeral. He wanted to attend protest marches but could not. They were shooting at the protesters. He attended the funeral and then went back to [Country 1]. When asked whether that meant that he did not have a problem when he was in Bangladesh in 2013, he responded that he received threats. When asked from whom he received threats, he responded that his father was threatened by AL supporters that they would go to his house and get his sons.
The Tribunal asked the applicant why he did not return to [Country 1] after the funeral. He responded that the ticket he had could not be changed. That would have drawn attention. It would have cost more money. He could not change the ticket. When asked whether it was not better to pay more money and change the ticket rather than put his life at risk, he responded that he had holidays from his company and they purchased the ticket. He could not change that. If he went, he could see his family even if not at his home. He could not change the ticket. He did not have any problems at the airport when he returned to Bangladesh in 2013 or when he departed Bangladesh in 2013.
The Tribunal put to the applicant information he provided during his interview with the Department, pursuant to s.424AA of the Act, that it was his paternal grandmother’s funeral or alternatively his maternal grandmother’s funeral that he attended and that he went into hiding after the funeral and lived in different places. The Tribunal also noted that his migration agent made submissions to the Department and the Tribunal that he stayed at his family home when he went to Bangladesh in 2013.
The applicant responded that it was his paternal grandmother’s funeral that he attended. Maybe he did not understand English at that time. (He was assisted by a Bengali interpreter). There was some point misinterpreted. He did not stay at his home. He stayed at his uncle’s home and the homes of relatives. He could not stay at his home with his mother. He told the Department he could not stay at his home. He saw this when he read it and thought it does not matter. He asked his migration agent about it and he said it did not matter. He wanted to comment on what he wrote, was confused and did not know how to respond.
The applicant’s conduct and his evidence raise a number of issues. Firstly, his conduct is not consistent with his claims. Despite all his claimed fears about returning to Bangladesh, he voluntarily did so in 2013 and then stayed there for a month. The Tribunal would expect that he would have been in contact with his family during the time he was living in [Country 1] and that they would have kept him informed of the current political situation in Bangladesh. The Tribunal would also expect that if the situation was really bad in 2013, as he claims, his family would have advised him not to return to Bangladesh. Secondly, if he was adamant about attending his grandmother’s funeral, the Tribunal would expect him to have asked his employer to purchase a ticket for a short trip to Bangladesh to give him sufficient time to attend his grandmother’s funeral and leave shortly thereafter. Thirdly, his inconsistent evidence in relation to whether he attended his paternal grandmother’s funeral or his maternal grandmother’s funeral raises concerns about whether he attended a funeral at all.
Fourthly, the applicant’s evidence in relation to where he stayed when he returned to Bangladesh in 2013 has evolved over time and he has not been able to give a consistent account of where he stayed. In his application for a Protection visa, he claimed that when he returned to Bangladesh in 2013 to attend his grandmother’s funeral, he remained in the family home to avoid arrest or detention and then returned to [Country 1]. However, during his interview with the Department, he changed his evidence and stated that he stayed at his family home until the funeral and then went into hiding and stayed at different places before returning to [Country 1]. At the hearing, he changed his evidence again and stated that he did not stay at his family home at all and he stayed with one of his uncles in the area. However, he then changed his evidence again and stated that he did not stay in one place and moved around to the homes of relatives.
Fifthly, in his submission to the Department dated 5 April 2015 the applicant’s migration agent submitted that when the applicant returned to Bangladesh in March 2013, he “strictly maintained a low profile” and remained in his family home. In his submission to the Tribunal dated 24 March 2022, the applicant’s migration agent submitted that the applicant remained “strictly in the family home” when he returned to Bangladesh in March 2013 and “strictly remained inside the family home to avoid any trouble with law enforcement authorities or Al activists in the region. This is not consistent with the applicant’s evidence to the Tribunal.
Sixthly, in his application for a Protection visa, the applicant did not claim to have had any problem when he returned to Bangladesh in 2013. During the hearing, he made a new claim that he received threats when he returned to Bangladesh in 2013. However, when asked who threatened him, he then changed his evidence and stated that his father was threatened by AL supporters that they would go to his house and get his sons. This tends to indicate that AL supporters were aware that he and his brothers were living at the house and not in hiding as he claimed. Further, if the AL supporters were aware that he and his brothers were staying at their family home, the Tribunal would expect them to have tipped off the Police so that they could have been arrested them if they were wanted by the Police as claimed.
Seventhly, the applicant’s evidence is that he had no problems at the airport when he departed Bangladesh in April 2007. He also had no problems at the airport when he returned to Bangladesh in 2013 and departed from Bangladesh a month later. This tends to indicate that he is not wanted by the Police, in relation to outstanding charges against him, and that he will not be arrested at the airport on his return to Bangladesh as claimed. Eighthly, his evidence to the Tribunal that he had holidays from his company (employer) and that they purchased his return ticket to Bangladesh for a month tends to indicate that he travelled to Bangladesh in 2013 for a holiday and that his employer purchased his airline ticket as part of his employment contract and that he did not return to Bangladesh to attend his grandmother’s funeral.
The Tribunal raised as issues with the applicant his voluntary return to Bangladesh in 2013 and his stay of one month in Bangladesh. The Tribunal noted that his conduct was not consistent with his claimed fears. The Tribunal also noted that it might conclude that he returned to Bangladesh for a holiday for one month. He responded that his intention was to go to Bangladesh and spend the time with his mother. When he got to Bangladesh ,he saw it was not going to happen. The situation was worse than he thought. That is why he did not get the ticket like that. When he landed in Bangladesh the situation was marginally better. After that it deteriorated rapidly. He could not change the schedule. He had to lie low and get out when he could.
The Tribunal does not find his explanation to be convincing and does not accept it. Despite the fact that the Tribunal raised as issues with him its concerns in relation to his credibility and the veracity of his claims, he did not provide the Tribunal with any evidence to corroborate his claim that he returned to Bangladesh in March 2013 to attend his grandmother’s funeral. He has provided the Department and the Tribunal with a large volume of documentary evidence from Bangladesh and has had plenty of time after the hearing to obtain further evidence, such as his grandmother’s Death Certificate, to corroborate his claims but has not done so. The above issues raise serious doubts that he returned to Bangladesh in 2013 to attend his grandmother’s funeral and about the credibility of his claims in general.
Sixth, the applicant has claimed that he has been charged by the Police and that the Police are looking for him to arrest him in relation to those outstanding charges. He has provided to the Tribunal a copy of his current Bangladeshi passport which was issued [in] 2019 and valid until [2024]. It indicates that the issuing authority was in Dhaka. As he was in Australia at the time, he would have had to make his application to renew his passport at the Consulate General of Bangladesh in Sydney or the Bangladeshi High Commission in Canberra thus disclosing his current address and whereabouts to the Bangladeshi authorities.
The applicant’s willingness to approach the Bangladeshi authorities and disclose his whereabouts and address is not consistent with his claims. The issue of the new passport also indicates that the Bangladeshi authorities have no problem with issuing him a passport. When the Tribunal raised these issues with the applicant, he responded that he made the application in Australia. He was lucky that they did not go into the details and issued him with a new passport. He is still a citizen of Bangladesh. The Tribunal noted that his brother, [Brother B], is also a Bangladeshi citizen but he claims that he is unable to get a passport. He responded that his brother cannot get through Police verification. He is on a list and is in the country.
The Tribunal is not persuaded by this explanation. His passport was issued in Dhaka and the Tribunal would expect that the normal procedures and checks for the issue or renewal of a passport would have been followed.
Seventh, in his application for a Protection visa, the applicant claimed that his brothers, [Brother A] and [Brother B], were active in the Jatiya Chatra Dal. His family was known in the locality as BNP supporters. During the caretaker government in Bangladesh in 2007, he and his brother, [Brother A], were charged by the Police because of their Chatra Dal activities. They absconded to avoid arrest. In 2012, the Police arrested his brother, [Brother A], and tortured him. He was subsequently released on bail. He arranged for his brother, [Brother A], to obtain an employment visa for [Country 1] and he went to [Country 1] in 2013. He is currently living in [Country 1].
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 June 2017. It indicates that, during his interview with the Department, he stated that his brother, [Brother A variant], was arrested, beaten and tortured by the Police in February 2013 when he was detained during a protest. This was a new claim that he had not made in his application for a Protection visa.
During the hearing, the Tribunal asked the applicant whether his brother, [Brother A], went to Dhaka with him when the two of them absconded in 2007 to avoid being arrested by the Police. He responded no. He stated that his brother, [Brother A variant], was charged and beaten by Police in 2012. They arranged for a lawyer to apply for bail for him. He has never attended Court. He does not know what has happened in relation to his pending Court case.
The Tribunal asked the applicant when his brother, [Brother A], decided to leave Bangladesh and travel to [Country 1]. He responded that he was in hiding in Bangladesh and could not work so he arranged for him to go to [Country 1] in 2013 or 2014. He does not know whether he has been back to Bangladesh since then but does not think so. He is still living in [Country 1].
The Tribunal raised as an issue with the applicant the inconsistencies in his evidence in relation to when his brother, [Brother A], was arrested and mistreated by the Police and the credibility of these claims. He responded that he did not have documents at that time. Maybe he got the year mixed up. He now has documents and what he said today is correct.
The Tribunal has a number of issues in relation to the applicant’s claims and evidence about his brother, [Brother A variant]. Firstly, if he and [Brother A variant] were charged by the Police in 2007 and absconded to avoid arrest, it is implausible that he would have arranged for an employment visa in [Country 1] for himself in 2007 to avoid being arrested in Bangladesh and not arrange for an employment visa for his brother, [Brother A variant], at the same time.
Secondly, as part of his application for a Protection visa the applicant filed a Form 80 - Personal Particulars for Assessment Including Character Assessment. At Part Q – Associated People, question 46, he was asked for details of his siblings. He stated that his brother, [Brother A variant], was currently residing in Bangladesh. He signed and dated this form on 5 April 2015. He gave evidence to the Tribunal that his application for a Protection visa was prepared by his migration agent on his instructions which were true and correct and he was satisfied that his visa application was accurate.
These issues raise serious doubts in relation to the veracity of the applicant’s claims about his brother, [Brother A variant].
Seventh, in his application for a Protection visa, the applicant claimed that his brother, [Brother B], was involved in the Chatra Dal and BNP political activities. He claimed that [in] November 2013 the local BNP leaders conducted a demonstration or protest against the AL. The Police made a few arrests and laid false charges against BNP leaders including his brother, [Brother B]. He went to Dhaka to avoid arrest.

During the hearing, the applicant gave evidence that his brother, [Brother B], initially studied in the village and then went to study in Dhaka. There was a disturbance at his [accommodation] in October 2015 and he was arrested. He was framed by the Police who planted a bomb in his [accommodation]. He was arrested, detained at [a named prison] and tortured for 6 months. Things were very bad at that time. When asked whether this was the first time that [Brother B] had a problem, he responded that there were “plenty of false cases against him earlier”. When he was arrested there were further cases against him. When asked how many false cases there were against him, he responded four or five or maybe more.

100. The Tribunal asked the applicant when his brother, [Brother B], started having false cases lodged against him. He responded in 2013 or 2014. There was an election that was totally rigged. When asked whether he attended Court, he responded yes. He had to present in Court to get bail. He had a lawyer who submitted papers to the Court and attended Court a few times. He applied for bail a few times and eventually got bail. He was not given bail for every case. He was granted bail for some of the cases and still has to attend Court. Some of the cases have been finalised and some are still ongoing. He has a photograph of him in gaol.
101. The Tribunal asked the applicant where his brother, [Brother B], is now. He responded that he is in hiding in Bangladesh. After he got bail, he returned to their area and was in hiding in the next village. He met with some people and was seen by the Police who chased him. His brother had not let go of his political opinion and was “on the hit list to be killed in a crossfire”. AL leaders instructed the local Police to keep a watch out for the people on their active list. On one occasion, he almost got caught. The Police asked him his name and he gave a different name. Someone identified him and he got caught. There were shoot on sight orders. He was running around for nearly an hour and then he got caught and taken to the Police Station in 2018. He was beaten for one day at the Police Station and then taken to Court and charged. He was charged with vandalising the rail track, blocking the road and holding a strike. He did nothing and was framed.
102. The Tribunal asked the applicant what happened in relation to those charges. He responded that he was in custody for some time and then got bail. There was a photograph of him in handcuffs. He is trying to leave the country but cannot get a passport. Passport verification is blocked. His photograph is on the “Wanted Blacklist” and he cannot get a passport. When asked why he did not get an employment visa and go to [Country 1], he responded that he is very strong willed and does not listen to them. He is ready to die for the party. He is in a permanent position in the party, unlike them, and wants to go higher in the political party.
103. The applicant has provided the Department and the Tribunal with documents, including FIRs, that he claims relate to his brother, [Brother B]. The FIRs provided do not correspond with the evidence given by him. For instance, he stated that [in] November 2013 the local BNP leaders conducted a demonstration or protest against the AL, the Police made a few arrests and laid false charges against BNP leaders including his brother, [Brother B]. He has provided the Department with a FIR dated [in] November 2013 which relates to an incident on [a day in] October 2013. It lists [number] Accused including ‘[Brother B], [Father A], Village: [Village 1]’ as the fifty fourth Accused.
104. Attached to the FIR is a document addressed to the Officer in Charge, [Location 1] Police Station, and the subject heading is ‘[title] (complaint statement)’. It relates to an incident on [a day in] November 2013. On the side of the document is a statement that the Police received the complaint of the Plaintiff [later in] November 2013 in relation to the case filed [in] November 2013. Under the heading ‘Plaintiff’, there is a list of [fewer number] names with the name ‘[Brother B], [Father A], Village: [Village 1]’ being one of the Plaintiffs.
105. It would appear from the above, that [Brother B] was an accused in relation to an incident on [the day in] October 2013 and a complainant/plaintiff in relation to an incident on [the day in] November 2013. His name and his father’s name have been spelled correctly in these documents. The applicant never claimed that [Brother B] had commenced proceedings against anyone else. It is not clear to the Tribunal, from the evidence given by the applicant, as to whether these two cases have now been finalised.
106. The applicant made a new claim during the hearing that his brother, [Brother B], was involved in an incident in October 2015 when there was a disturbance at his [accommodation], he was arrested, framed by the Police who planted a bomb in his [accommodation] and detained and tortured for 6 months. He has provided a number of FIRs but none in relation to this incident in October 2015. He made another new claim during the hearing that his brother, [Brother B], was arrested by the Police in 2018, beaten for one day at the Police Station and then taken to Court and charged with vandalising the rail track, blocking the road and holding a strike.
107. The applicant has provided the Tribunal with a FIR dated [in] September 2018 which indicates that the Police received “secret information” that members of Jamaat Shibir had gathered in the house of Accused 1 and attended the premises. Some of the people present absconded and they arrested and interrogated the rest. Accused 1 introduced himself as the [Position 3A] of Jamaat Islami in the [Location 1] Upazila. Accused 2 stated that he was an active member of Jamaat Shibir. The Police seized a Samsung mobile telephone and was able to identify some of the people who had absconded. The FIR described the charge as “creating unrest in the country by collusion with each other and attempting to commit sabots. Recovery - 1 mobile set.” (sic) The applicant claims that his brother is a BNP activist not an activist from Jamaat Islami or Jamaat Shibir.
108. The FIR lists the details of eleven Accused. One of the names has been highlighted and it is “[Brother B variant, age], son of [Father A name variant] Member, permanent: Vill: [Location 2] ([Village 1]), Upazila/P.S: [Location 1], Brahmanbaria”.
109. The applicant has also provided the Tribunal with a number of other documents that he claims relate to his brother, [Brother B]. An FIR dated [in] December 2013 refers to [number] Accused one of whom is ‘[Brother B variant], [Father A variant] Member, Vill: [Village 1]’. A FIR dated [in] January 2014 refers to [number] Accused one of whom is ‘[Brother B variant], [Father A variant] Member, Vill: [Village 1]’. A Charge Sheet dated [in] May 2014 refers to [number] Accused one of whom is ‘[Brother B variant]’. A FIR dated [in] January 2015 refers to [number] Accused one of whom is ‘[Brother B variant], [Father A variant] Member, Vill: [Village 1]’. A document titled Accused [Name] dated [in] February 2018 refers to an Accused named ‘[Brother B variant], [Father A variant] Member, Vill: [Village 1]’.
110. In his application for a Protection visa, the applicant stated that his father’s name is [Father A] and his brother’s name is [Brother B]. During the hearing he confirmed his father’s name and stated that he had never changed his name. He also confirmed his brother’s name and stated that he had not used a different name to [Brother B].
111. The Tribunal has some concerns in relation to these documents. Firstly, they have not been translated into English by a NAATI qualified translator. Secondly, the alleged names of the applicant’s father and brother, [Brother B], on most of these documents are different to what the applicant says their names are. Thirdly, the dates and offences on most of these documents are inconsistent with the applicant’s claims. The Tribunal raised these issues with him. He responded that he did not know he had to get documents translated in Australia. If he had known that he would have done so. The translators (in Bangladesh) may have made mistakes. They do not know the importance of those documents. The names he gave the Tribunal are the correct ones.
112. The Tribunal noted that the applicant is represented by an experienced migration agent and it would have expected him to have discussed this with his migration agent. He then stated that his father’s name was originally [alias]. When government IDs were issued, they wrote down his name as [Father Alias 1]. Most of the documents have his brother’s name as [Father Alias 1]. However, his name is [Brother B]. This is not his family’s doing. The Police may not know their proper names. This evidence is not consistent with his earlier evidence that his father had not changed his name and his brother had not use a different name.
113. Whilst it is possible that the government Department issuing IDs had recorded their names incorrectly, the Tribunal would expect the applicant to have informed the Tribunal of that when the Tribunal was seeking to clarify his father’s and brother, [Brother B’s], correct names. Even taking into consideration the explanation he gave in relation to his father’s original name or the incorrect recording of his brother’s name, most of the documents do not have either version of his father’s name or his brother’s name.
114. The Tribunal asked the applicant how he obtain the documents from the Police (FIRs and Charge Sheets). He responded that his father and relatives collected some of them, some were collected by his brother’s friends and his brother also helped him.
115. The Tribunal also discussed with the applicant country information on Bangladesh which indicates that the use of fraudulent documents is widespread in Bangladesh and that Court documents and Police documents may be fraudulently obtained.[3] He responded that they are not false documents. The Tribunal is not satisfied that the FIRs and Charge Sheets he has filed with the Tribunal that refer to [Brother B name variants] are authentic documents.
[3] DFAT Country Information Report on Bangladesh dated 22 August 2019.
116. The applicant has provided the Department and the Tribunal with photographs and screenshots from a video. At the hearing, he identified who was in the photographs and approximately when they were taken. He provided three photographs of his brother, [Brother B], at a rally taken in 2013 or 2014. He provided a photograph of a group of five men, two of whom were dressed in traditional clothing, inside a building. There are no signs to indicate what the building is. The applicant claimed that this photograph was taken when his brother, [Brother B], attended Court.
117. The applicant provided the Tribunal with a photograph of a group of six men with signs attached to their chests. They appear to be mug shots. The photograph is blurred but one of the men may be his brother, [Brother B]. He has provided another photograph of his brother, [Brother B], and another man which he stated was when his brother came out of gaol. The photograph is taken from inside a room that looks out onto a garden. It has a window with bars on it, shutters that open out and a security grill. [Brother B] and another man are in the garden and [Brother B] is standing in front of the window smiling.
118. The applicant provided the Department with eight screenshots from a video. They appear to be of a rally or march with a line of men holding a large banner and leading the rally/march. There is also a large group of Policemen some of whom appear to be carrying batons.
119. The Tribunal has a number of concerns in relation to the applicant’s claims and evidence in relation to his brother, [Brother B]. Firstly, in his application for a Protection visa, he claimed that [in] November 2013 the local BNP leaders conducted a demonstration or protest against the AL, the Police made a few arrests and laid false charges against BNP leaders including his brother, [Brother B] and he went to Dhaka to avoid arrest. However, during the hearing, he stated that his brother, [Brother B], went to Dhaka to study.
120. Secondly, in his application for a Protection visa, he only claimed that his brother, [Brother B], had one set of charges against him that date back to November 2013. However, at the hearing he made new claims that there were four or five or maybe more cases against him that date back to 2013 or 2014. He offered no explanation for why he had not mentioned this in his application for a Protection visa or during his interview with the delegate. Thirdly, he provided the Tribunal with a number of FIRs and Charge Sheets that are not consistent with his evidence. (see paragraphs 103 - 110 above).
121. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
122. Eighth, during his interview with the Department on 21 October 2015, the applicant made new claims that the Police were continually looking for his brother, [Brother B], and father. As a result, his father left their family home and was moving from place to place. He also gave evidence that, because his father is old now, the Police always ask him where his son is.
123. During the hearing, the Tribunal discussed these claims with the applicant. When asked where his father lives, he responded that his mother lives in the ancestral home and his father sometimes stays there and sometimes has to move out. When asked where he moves out to, he responded mostly to relatives’ or friend’s houses where he thinks he will be safe. When asked whether his father is working, he responded that he used to have businesses but they no longer operate. He owns land and has other people working on the land to cultivate it.
124. The Tribunal put to the applicant, pursuant to s.424AA of the Act, his evidence during his interview with the Department that his father was moving from place to place to avoid the Police and that the Police are always asking his father where his son is and noted that it was contradictory and raised an issue in relation to the veracity of this claim.
125. The applicant responded that what he said was true. When there is more harassment, his father cannot live at home. When there is a lull, he returns home. He has been accosted by the Police and asked about the whereabouts of his sons. His brother has been arrested twice. They had to pay money. His father is old and the Police do not target old people. They target young people. There may be a few differences in his evidence. We are all human. There may be misinterpretation and a little difference in versions. They are being persecuted. His mistake was that he did not correct it when he saw it.
126. The applicant’s explanation is also contradictory in that the applicant’s father cannot be living at home sometimes and moving out sometimes in order to avoid harassment from the Police, if he is not being targeted by the Police because he is old. The Tribunal is not persuaded by his response. This raises further issues in relation to his credibility and the veracity of his claims.
127. Ninth, during the hearing, the applicant made new claims in relation to his brother-in-law, [Leader A]. He stated that his sister married their cousin. Her husband was a BNP activist and was killed. When asked what happen, he stated that his brother-in-law had two businesses in the local market area. He was returning home from the market when he was attacked. He was hit on the head and died. AL supporters planned to kill him.
128. The applicant provided the Tribunal with a FIR dated [in] October 2018 in relation to [Leader A], an Inquest Report dated [in] October 2018, two photographs of what appeared to be a dead man, a Statement from his sister, [Sister A], dated [in] October 2018 and a letter dated [in] October 2018 from the Residential Medical Officer at the [Hospital 1], Brahmanbaria to the Officer in Charge of the [Police Station 1]. The Tribunal asked him whether he had read these documents and he answered yes.
129. The FIR indicates that the incident occurred on [a day in] October 2018 at 8.30. There are [number] Accused. The crime is “getting in unlawful gathering with same motivation to beat the victim causing normal and severe injury leading to death.” (sic) The Inquest Report is dated [in] October 2018 and describes the deceased and the wounds on his head and body. It indicates that the body is to be sent to the [Hospital 1] for a post-mortem to determine the cause of death and date and time of death. The letter dated [a day in] October 2018 from the Residential Medical Officer at the [Hospital 1], Brahmanbaria to the Officer in Charge of the [Police Station 1] indicates that the deceased was admitted to ER at the hospital on [a day in] October 2018 at 11.00pm due to his injuries and died on [that day] at 10.00pm. (sic)
130. The Statement from the applicant’s sister, [Sister A], dated [in] October 2018 indicates that the Accused lived next door to her house in the village. The Accused are her uncle/ father-in-law, uncle/brother-in-law, aunt/mother-in-law, uncle/ cousin. Her husband had a [shop] at [location]. He finished work and returned home at around 8.00pm. He was eating rice when Accused 8 came to her house and asked her husband to go to her house urgently. Her husband accompanied her to her home. At around 8:30 pm, she heard screaming from her neighbours’ house and she and her son immediately went there. The [number] Accused were beating her husband with a rod and shovel. When she tried to stop them, she was also beaten and injured.
131. [Sister A] stated that she and her husband started screaming. Other people appeared and rescued them. They took her husband to [Hospital 1] where he was admitted for treatment at 11.00pm. After he was admitted, the duty doctor at the hospital declared him to be dead. The hospital informed the [Police Station 1]. The Police attended and prepared an Inquest Report and sent her husband’s body to the morgue. She was admitted to [Location 1] Hospital for treatment.
132. The Tribunal discussed these documents with the applicant and noted that there was no evidence to indicate that his brother-in-law’s death was politically motivated. The Tribunal noted that the people accused of killing him were relatives who lived next door. There could have been a family dispute or a dispute between neighbours. There was no way to tell what caused the dispute. He responded that it was all “cooked” between political leaders and goons. The neighbours were affiliated with the AL. They said just kill him off. His brother-in-law had a business. His political affiliation was the prime motive.
133. The Tribunal reminded the applicant of his earlier evidence that all his relatives are BNP supporters. The Tribunal noted that his sister referred to her uncle in her statement. He responded that it was not her uncle. They are neighbours. They just call them uncle and aunt but they are not related. His brother-in-law is in politics and has a business and they wanted to finish him off. They wanted to make his family and the party suffer. The Tribunal does not accept this explanation in view of his own evidence, that his sister married their cousin, and his sister’s evidence. In her statement, his sister refers to the accused as her uncle/father-in-law, aunt/mother-in-law, uncle/brother-in-law, uncle and cousin.
134. The Tribunal accepts that it is customary in Bangladesh to refer to an older person as uncle or aunt. The Tribunal does not accept that it is customary to refer to an older person as father-in-law or mother-in-law. If the applicant’s sister married her cousin, her father-in-law would also be her uncle and her mother-in-law would also be her aunt. It is implausible that parents would kill their son for political reasons.

135. The applicant’s evidence in relation to the killers’ motives for killing his brother-in-law is speculation. The Tribunal is not satisfied, on the evidence before it, that his brother-in-law’s death was politically motivated.
Other considerations
136. The applicant has filed with the Tribunal a letter dated 20 January 2022 from [Psychologist A]. [Psychologist A] stated that the applicant suffers from symptoms related to anxiety and depression which stem from his family’s situation in Bangladesh. The applicant informed him that his family is politically active in Bangladesh and the party his family is associated with is now in opposition. He stated that the government is constantly threatening his family members and some have already died at the hands of the government’s agents. The applicant told him that he would be in mortal danger if he returns to Bangladesh as he is well known to these government agents.
137. [Psychologist A] stated that the applicant suffers from frequent headaches as he gets little sleep and does not have motivation to eat properly. He is constantly worried about his family and this makes him feel sad, angry and upset at the situation in Bangladesh and the danger his family is in. One of his family members who is currently targeted by government agents is his brother who is on the run and is being hunted by agents of the government. He is worried about his brother and what will happen to him. He worries that his life would be in danger if he returns to Bangladesh as his name is also on a list of people to be harassed and threatened.
138. [Psychologist A] stated that the applicant would be safer if he is allowed to remain in Australia and he advocates for this outcome.
139. This report from [Psychologist A] does not comply with the Tribunal’s Guidelines for Expert Evidence. He has not provided details of his qualifications or work experience. He has not indicated when he first saw the applicant and how many times he has seen him. He did not indicate whether he had administered any psychological tests when examining the applicant’s mental state and making a diagnosis. He did not indicate what treatment, if any, he had recommended to the applicant. He did not indicate his long-term prognosis. This report just sets out the history given to him by the applicant and he advocates on his behalf.
140. The history given by the applicant to [Psychologist A] includes a claim that some of his family members (in Bangladesh) have died at the hands of the government’s agents. This is not consistent with the applicant’s claims and evidence to the Tribunal. He has only claimed that one member of his family, his brother-in-law, was killed by AI supporters.
141. [Psychologist A] does not appear to be an independent expert and advocates on behalf of the applicant. The Tribunal finds this report to be self-serving on the applicant’s part and places no weight on it.
142. The applicant has filed with the Department printouts of search results for ‘treatment to BNP party members by authority in Bangladesh’, ‘Police corruption in Bangladesh’ and ‘detention before trail in Bangladesh’ (sic) on the Google Search Engine without providing the actual documents or making any submission on their relevance to his claims. He is represented by an experienced migration agent and has the benefit of obtaining immigration advice on what evidence to present to the Tribunal and how it should be presented. It is not the role of the Tribunal to make his case for him.
143. The Tribunal has considered the submissions made by the applicant’s migration agent to the Department and the Tribunal. In his submissions to the Department, he referred to the applicant’s claims, the law and submitted that he is likely to face arrest and torture by the Bangladeshi authorities because of his political opinion and activities in the past. He submitted that he should be recognised as a refugee.
144. The applicant’s migration agent did not comply with the Tribunal’s Practice Directions. In his submissions to the Tribunal, he set out the applicant’s immigration history, his claims, the delegate’s decision, referred to the law and submitted that the applicant satisfies the requirements of s.36(2)(a) of the Act.
145. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh, other opensource country information and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Country information
146. The DFAT Country Information Report on Bangladesh reports, in part, as follows:
Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based. The relationship between the two parties is characterised by longstanding enmity.
The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated.
Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.[4]
[4] DFAT Country Information Report on Bangladesh, 30 November 2022.
Findings
147. Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he embellished some of his claims and fabricated others.
148. The Tribunal accepts that the applicant was born on [date] at [Village 1], [Location 1] in Bangladesh. The Tribunal accepts that he has [specified family members]. The Tribunal accepts that his parents and siblings live in Bangladesh.
149. The Tribunal accepts that the applicant’s father is a supporter of the BNP and was elected as a member of the [Location 2] Union Council in about 2003 for a period of 5 years. The Tribunal accepts that he sought re-election at the end of the 5 years but was unsuccessful. The Tribunal does not accept that he is currently the “main leader” in the BNP in the area he lives in. The Tribunal does not accept that he currently cannot and does not live at home and is in hiding or, alternatively, that he sometimes lives at home and sometimes lives at the homes of relatives.
150. The Tribunal accepts that the applicant’s father is known to be a BNP supporter in his area. The Tribunal is not satisfied that he is involved in politics now or has the profile of a BNP leader or is of adverse interest to AL supporters or members and the Bangladeshi authorities.
151. The Tribunal accepts that the applicant’s brother, [Brother A], was a member of the Jatiya Chatra Dal when he was at school and college. The Tribunal does not accept that he was charged by the Police in 2007, because of his Chatra Dal activities, and absconded to avoid arrest. The Tribunal does not accept that he was arrested and tortured by the Police in 2012 or, alternatively, in 2013 and released on bail. The Tribunal accepts that he had difficulty obtaining employment in Bangladesh and the applicant helped him to obtain an employment visa to work in [Country 1] in 2013.
152. The Tribunal accepts that the applicant’s brother, [Brother A], returned to live in Bangladesh by the time the applicant applied for a Protection visa in 2015. The Tribunal notes the applicant’s evidence that [Brother A variant’s] wife was pregnant, there were complications during the pregnancy and she lost the baby. This happened when [Brother A] was overseas a long time ago. It is not clear from the evidence exactly when this happened and whether this is what prompted [Brother A] to return to Bangladesh. The Tribunal is not satisfied, on the evidence before it, that [Brother A] was involved in any political activities after leaving college. The Tribunal is not satisfied that he is of adverse interest to AL supporters or members or the Bangladeshi authorities.
153. The Tribunal accepts that the applicant’s brother, [Brother B], was a member of the Jatiya Chatra Dal when he was at school and college. The Tribunal accepts that when he completed his studies in [Village 1] he went to Dhaka to further his studies. The Tribunal accepts that he then became involved in BNP and Jamaat-e-Islami[5] political activities. The Tribunal accepts that he and several others were arrested in October 2015 and charged. The Tribunal accepts that he was granted bail and then absconded in breach of his bail conditions.
[5] An Islamist political party that is officially deregistered as a political party and was banned from participation in the 2014 election. (DFAT Country Information Report, 30 November 2022)
154. The Tribunal accepts that an Arrest Warrant was issued for [Brother B’s] arrest. The Tribunal accepts that he was arrested in 2018 near his village and was charged with further offences. The Tribunal accepts that he was again granted bail. The Tribunal does not accept that there are or were four or five or even more cases against him. The Tribunal is not satisfied, on the evidence before it, that he holds an official position in the BNP or Jamaat-e-Islami or has the profile of a leader in the BNP or Jamaat-e-Islami. The Tribunal accepts that he is of adverse interest to the Bangladeshi authorities.
155. The Tribunal accepts that the applicant was a member of the Jatiya Chatra Dal, the Student wing of the BNP, when he was at school and college. The Tribunal does not accept that he was an office bearer in the Jatiya Chatra Dal. The Tribunal does not accept that he was assaulted by AL supporters a few times in 2007. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he and his brother, [Brother A], were charged by the Police in 2007 because of their Chatra Dal activities and absconded to avoid arrest. It follows that the Tribunal does not accept any of his claims that flow from that including that he was in hiding in Dhaka or elsewhere. The Tribunal accepts that he arranged for an employment visa to work in [Country 1] and travelled to Dhaka in March 2007 for the purpose of making the arrangements and catching his flight to [Country 1].
156. The Tribunal does not accept that the applicant engaged in any political activities in [Country 1]. The Tribunal accepts that he socialised with members of the Bangladeshi diaspora in [Country 1] and that some of them may have been BNP supporters. The Tribunal accepts that he returned to Bangladesh in April 2013 and remained in Bangladesh for a month before returning to [Country 1]. The Tribunal accepts that he did not engage in any political activities during that period.
157. The Tribunal does not accept that the applicant returned to Bangladesh in 2013 for the purpose of attending his maternal grandmother’s or, alternatively, his paternal grandmother’s funeral. The Tribunal does not accept that he was in hiding during his visa to Bangladesh in 2013. It follows that the Tribunal does not accept any of his claims that flow from that. The evidence before the Tribunal leads it to the conclusion that he returned to Bangladesh in 2013 for a holiday and to visit his family and accepts that his employer paid for his return airfare.
158. The Tribunal does not accept that the applicant travelled from [Country 1] to Australia to save his life. The Tribunal is of the view that his trip to Australia in 2015 was opportunistic and that he applied for a Protection visa because he preferred to live and work in Australia than in [Country 1] or Bangladesh. The Tribunal does not accept that he made contact with any BNP organisation in Australia through Facebook upon his arrival in Australia. The Tribunal does not accept that he joined any BNP organisation in Australia one and a half months after his arrival in Australia and thereafter participated in their activities.
159. The evidence before the Tribunal leads it to the conclusion that the applicant joined a BNP organisation in Australia after his application for a Protection visa was refused. The Tribunal is of the view that he did so partly to enhance his prospects of obtaining a Protection visa and partly to enable him to socialise with his countrymen. The Tribunal accepts that the activities he was involved in were attending celebrations of Bangladesh Independence Day and the birthdays of the founder and the leader of the BNP. The Tribunal accepts that he attended a protest at Darling Harbour when the Prime Minister of Bangladesh visited Sydney in 2018.
160. The Tribunal accepts that the applicant volunteered to do some Covid relief work that was organised by the BNP organisation in 2020 or 2021. The Tribunal is not satisfied that his association with and/or participation in activities organised by the BNP organisation in Australia has or will create an adverse profile for him in Bangladesh.
161. The applicant has not been involved in any political activities in Bangladesh since 2007. The Tribunal does not accept that he will be arrested, detained and harmed if he returns to Bangladesh now or in the reasonably foreseeable future because of his previous political activities. He does not hold an official position in the BNP and does not have the profile of a leader. He does not have the profile of someone who is likely to participate in violent protests or engage in activities that will attract government attention if he returns to Bangladesh now or in the foreseeable future.
162. The Tribunal has considered whether the applicant would attract adverse attention because his father is known to be a BNP supporter in his local area and he has previously been a member on the [Location 2] Union Council albeit a considerable time ago. In view of the findings above and the country information referred to above, the Tribunal is not satisfied that there is a real chance or a real risk that he would be suffer serious harm or significant harm for these reasons.
163. The Tribunal has considered whether the applicant would attract adverse attention because of his brother, [Brother B]. In view of the findings above, the Tribunal is not satisfied that there is a real chance or a real risk that he would be suffer serious harm or significant harm for this reason. In any event, the Tribunal is of the view that he would be able to safely relocate to Dhaka if he returns to Bangladesh now or in the reasonably foreseeable future. He has proved himself to be remarkably resourceful and adaptable in living, working and learning [the local language] whilst living in [Country 1] and in finding accommodation, employment, learning English and adapting to a very different culture and lifestyle in Australia.
164. In view of the above, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for any of the reasons claimed, if he returns to Bangladesh now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
165. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Bangladesh. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
166. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
167. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
168. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSION
169. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

170. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
171. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
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 2786

31 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice