1719055 (Refugee)

[2023] AATA 1117

1719055 (Refugee) [2023] AATA 1117 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719055

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Brendan Darcy

DATE:2 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 February 2023 at 11:06am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member of Islamic political party – participation in meetings and rallies – credibility – voluntary return and delay in applying for protection – long residence, multiple visas, study and work – refusal of most recent working visa application affirmed on review – request for ministerial intervention unsuccessful and application for protection made soon after – limited knowledge of party’s political platform – members of family unit – second applicant’s previous travel under another identity and protection visa application with bogus claims – late claim of fear of harm in own right – embezzlement  – timing and circumstances of marriage and first applicant’s knowledge of second applicant’s false identity – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (b), (c), 65, 351
Migration Regulations 1994 (Cth), r 1.12(4)(a), (b), Schedule 2, cl 186.223(2)

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of the People’s Republic of Bangladesh (Bangladesh), applied for the visas on 5 July 2016. The delegate refused to grant the visas on the basis that there was inadequate information on which to rely that the first named applicant faced a real chance of serious harm or a real risk of significant harm.

3. For the purposes of this decision, the first named applicant will be referred to as the first applicant or the applicant; the second named applicant will be referred to as the second applicant or the applicant’s spouse; and the third named applicant as the third applicant or as the applicant’s child.

4. The first and second applicants appeared before the Tribunal on 19 October 2022 to give evidence and present arguments.

5. A resumed hearing was held on 22 November 2022 at which the first and second applicants gave evidence. The Tribunal did not receive oral evidence from any witnesses or from the third applicant who was not required to give evidence on the basis of being a minor.

6. The Tribunal hearings were conducted with the assistance of an interpreter in the Bengali and English languages.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

14. At the time of application, the first applicant claimed to be born in the Bangladeshi capital, Dhaka, on [Date]; while the second applicant claimed he also born in Dhaka on [Date 1].

15. The first applicant provided copies of two passports as documentary evidence of her identification: the most recent passort was issued [in] 2016 and was valid to [2021]. A copy of the previous passport pertaining to the first appicant was also submitted. The second applicant provided a copy of his passport issued [in] 2012 which was valid to [2017]. Copies of these identity documents were attached to the Departmental file ([Reference]).

16. A copy of the second applicant’s currently valid Bangladeshi passport was provided to the Tribunal. It was issued [in] 2018 and expired [in] 2023. 

17. The first and second applicant claimed to be married to each other in 2012. A copy of their marriage certificate is on the Departmental file.

18. The third applicant, it is claimed, is the biological child of the first and second applicants, and was born in Sydney, Australia, on [Date]. A copy of the third applicant’s birth certificate was also submitted.

19. On behalf of the third applicant, the first and second applicants submitted a copy of the third applicant’s passport which was issued [in] 2015 and valid to [2020].

20. All applicants claim to be nationals of Bangladesh.

    Applicant’s travel and visa history

    First and second applicants’ visa histories

21. On 19 December 2007, the first applicant lodged an offshore application for a Class TU Subclass 572 visa, which was granted on 5 February 2008. The applicant subsequently arrived in Sydney, Australia [in] February 2008 for the first time.

22. Between [April] 2008 and [September] 2011, the first applicant remained in Australia and was granted three (3) additional Subclass 572 student visas.

23. On 4 February 2012, the first applicant was granted a Class UC Subclass 457 employer sponsored work visa.

24. [In] March 2012, the applicant departed Australia and she returned [in] June 2012.

25. The first applicant indicated on her Form 866C that she returned to Bangladesh [in] March 2012 and remained there until [June] 2012, to ‘get money’.

26. On 6 June 2012, the first applicant lodged an offshore application for a Subclass 457 work visa for her spouse, the second applicant. This was granted on 25 September 2012. The second applicant arrived in Sydney, Australia, as a dependent visa holder of a Subclass 457 visa [in] October 2012. The second applicant claimed to be born on [Date 2] in Bangladesh under the identity of [the second applicant].

27. On 10 December 2014, the first applicant was notified of the intention to consider cancellation of her Subclass 457 visa as the Department held evidence indicating she had not been working in the occupation listed in her most recent approved nomination (condition 8107 of the visa). The first applicant responded to this notice in an email on 9 January 2015, and this response was considered. The delegate acting on behalf of the Minister cancelled the visa on 13 January 2015.

28. The applicants lodged an application for review of this cancellation decision with the Tribunal on 16 January 2015. The applicants were asked to pay the application fee within 14 days of receiving the Tribunal’s letter advising that their request for reduction had been refused. They were then given further time after the decision to refuse the fee reduction was reconsidered, until 25 March 2015.

29. The Tribunal considered the applicants have been given a reasonable period to pay the fee since being notified of the authorised officer’s decision, and the outcome of the reconsideration. However, the fee was not paid. The application for review was therefore not a valid application and on 8 May 2015, the Tribunal found it had no jurisdiction in the matter.

30. The first and second applicants lodged an Employer Nomination Scheme (Subclass 186) permanent visa application on 11 March 2014 and appeared before the Tribunal on 16 July 2015. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

31. The first and second applicants also applied for a Bridging visa WE 050, which was granted on 15 January 2015.

32. (At the Tribunal hearing for the Employer Nomination Scheme visa, the first applicant confirmed that she was the holder of a Subclass 457 visa identified in a nomination application by her sponsor, ‘[Company]’.

33. The applicant told the Tribunal that she was sponsored by [Company] and had been working for the business in the position of [Occupation]. She ceased working for them when she gave birth to the third named applicant. She told the Tribunal that [Company] had made an application for approval of a nominated position, but that it was not approved. The Tribunal then explained that as there is no evidence that the application for approval of the nominated position was approved, she does not appear to meet cl 186.223(2). The applicant said that this is not her fault and she does not understand why the nomination application was not approved. The Member explained the Tribunal had not jurisdiction in relation for the third named applicant and no discretionary powers to waiver the relevant regulation).

34. The applicants lodged a Ministerial intervention request under s 351 of the Act, which was found unsuccessful on 5 April 2016.

    Third applicant’s visa history

35. The third applicant’s name was attached to the first and second applicants’ applications to have their refused Subclass 186 visas reviewed by the Tribunal on 13 February 2015. The Tribunal determined on 17 July 2015 that the third applicant’s application for review did not have jurisdiction as there was no primary decision in relation to the third applicant.

36. On 13 August 2015, the third applicant’s name was attached to the request made by the first and second applicants for the Minister to personally intervene under s 351 of the Act. On 5 April 2016, it was decided the request was unsuccessful.

    Protection visa application

37. On 5 July 2016, the applicants jointly and validly lodged an onshore application for a Class XA Subclass 866 Protection visa.

38. The first applicant’s written claims are on the Department file [Reference], and are summarised as follows:

    ·     The first applicant was a member of the Jamaat-e-Islami (JI) whilst at university until the BNP government was elected in 2006;

    ·     Then in 2007, the military established a new government and started to detain all leaders and send them to jail;

    ·     The supporters of all parties became helpless;

    ·     They were scared about being detained by the authorities and jailed, everyone decided to go into hiding;

    ·     The first applicant applied for a student visa in Australia to escape this environment in Bangladesh;

    ·     She returned there in 2012 to marry and ‘to get money’.

    ·     However, at the same time the Awami League government wanted to kill everyone who was associated with JI;

    ·     In Bangladesh the Awami League retained government. They have detained, imprisoned and killed all the opposition leaders and supporters. They planned the destruction of all other political parties so the Awami League is the only party in Bangladesh;

    ·     If the first applicant returns to Bangladesh, she fears the Awami League will kill her and her family, because of her past support for the JI;

    ·     As a woman, the Bangladeshi authorities can physically abuse her. One of her friends has disappeared, her whereabouts unknown;

    ·     The authorities in Bangladesh went to the first applicant’s house and threatened her so many times that they will kill her if they see her there again. That is why when she went back last time in 2012, she couldn’t go anywhere. However, the authorities found out that she had returned and they visited her house and made threats about what would happen if she didn’t leave;

    ·     She lodged a complaint with the police, but they did not make a record or take action on this issue as the police remained loyal to the government;

    ·     She and her family cannot relocate anywhere within Bangladesh, they will be located;

    ·     She stated that with her family returning, there is no protection in Bangladesh.

39. The second and third applicants, while members of the same family unit as the first applicant, did not have any specific claims of their own.

40. A Police Clearance Certificate regarding the first and second applicants was also given to the Department indicating they had no prior convictions.  

41. The first applicant’s 866C form stipulates that she has travelled to [Country 1] and [Country 2], the reason for the visits being ‘transit’. Her mother and father reside in Bangladesh.

42. She indicated that she can speak, read and write in the Bengali and English languages. The first applicant is a Muslim and has the primary occupation as [an Occupation]. The applicant stated that her mother, father, brother and sister resided in Bangladesh. The nikah or marriage certificate relating to the first applicant states that she has received a divorce in the past.

43. Between [Year] and [Year], the first applicant completed primary and secondary school in Bangladesh. In 2009, she completed a Diploma of [Subject 1] at ‘[Institution 1]’, in NSW, Australia; and also completed a Diploma of [Subject 2] from ‘[Institution 2]’, also in NSW, Australia.

44. As per the second applicant’s 866C Form, it was claimed the spousal relationship between the first and second applicants began [in] October 2011. No further claims were advanced.

45. The second applicant professed to have changed his name and date of birth [in] October 2012 from ‘[Alias]’ born on [Date 3] to ‘[the second applicant]’ born on [Date 1].

46. In his submitted forms for protection, the second applicant has indicated that he can speak and read in the Bengali and English languages; that he is a Muslim by religion; [an Occupation] by occupation. He further indicated that both of the second applicant’s parents were born in Narayanganj (metropolitan Dhaka) and resided in Bangladesh; and that the second applicant travelled to [Country 1] and [Country 2] as a student.

    Non-attendance at the departmental interview

47. According to the delegate’s decision record, on 3 November 2016, the Department requested the applicants attend a protection visa interview at 3pm on 16 November 2016. The applicants did not attend.

48. The interview invitation letter advised the first applicant that if the applicants were unable to attend the interview, they should contact the Department to make other arrangements. It also advised that if the applicants did not attend the interview for this protection visa application, the Department may be decided without any further delay, based on the available information. The applicants did not attend the interview and no reason was provided to the Department for the applicant’s non-attendance. According to the decision record, as the applicants did not attend the interview her application for a protection visa has been determined based on the information provided in her application form.

49. A delegate acting on behalf of the Minister proceeded with its decision-making duties and refused to grant the applicants protection visas on 22 November 2016.

    Evidence provided to the Tribunal

50. The applicants lodged a valid application for review with the Tribunal on 23 August 2017, along with a valid copy of the delegate’s decision record. The applicants also submitted copies of their passports.

51. As mentioned above, the applicants appeared before the Tribunal to give evidence and present evidence on 19 October 2022. The hearing was adjourned because it reached the end of the working day before completing the hearing.

52. On 21 November 2022, the applicants forwarded a copy of a New South Wales issued certificate of birth for [their child], born on [Date], indicating the first and second applicants are the parents of that child.

53. On 22 November 2022, the Tribunal received digital copies of the first applicant’s expired Bangladeshi passport issued on [in] 2016; the second applicant’s expired Bangladeshi passport issued on [in] 2018; and the first applicant’s certificate of divorce issued by the relevant authority in Bangladesh, indicating a notice of divorce was lodged [in] July 2011 and the marriage’s end was given effect [in] October 2011.

54. A resumed hearing was held on 22 November 2022.

55. During this hearing, the second applicant indicated to the Tribunal that he had travelled to Australia previously under another identity: Bangladesi citizen [Alias], DOB: [Date 3]. The second applicant further indicated he arrived in Australia in 2005; applied for a protection visa; and departed in May 2011. The second applicant stated this was his actual name and identity.

56. At the end of the second hearing, the applicants were provided a post hearing opportunity to provide any further documents, and to do so by 29 November 2022.

57. On 28 November 2022, the applicants submitted a number of documents, including:

    ·An educational document from [a College] in Dhaka indicating that the second applicant completed Year 12 in a Bangladeshi school under the name [Alias]; and

    ·A copy of a handwritten letter (with an accompying translation) from a bank indicating the second applicant had embezzled money amounting to around [amount] US Dollars from [a Bank], and that the brother-in-law of the second applicant was required to repay the principal amount owing (minus interest and other penalties). The letter is dated [September] 2009.

1. No further submissions were received in relation to this matter. There are no non-disclosure certificates on the applicant’s Department and Tribunal files relating to this matter.

   Country information: Bangladesh

2. The most recent DFAT Country Information Report on Bangladesh was published on 22 August 2019. Relevant to the applicant’s claims for protection, it states the following about Jamaat-e-Islami:

   Jamaat-e-Islami (JI)

   3.83 Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi (northern Bangladesh) and Chittagong, the country’s second-largest city. JI is committed to the creation of an Islamic state with a sharia legal system, and to the removal of ‘un-Islamic’ laws and practices. The Islami Chhatra Shibir (ICS) is the JI’s student wing, and is one of the largest Islamist student organisations in South Asia. ICS is reportedly one of the strongest student fronts in the Universities of Chittagong, Rajshahi, and Jahangirnagar, with a notorious reputation for violence.

   3.84 JI strongly supported the Pakistani army during the Liberation War. Five JI leaders convicted by the ICT (see International Crimes Tribunal (ICT)) of war crimes committed during the Liberation War were executed between December 2013 and September 2016 (see Death Penalty). JI has periodically held major strikes and violent demonstrations across the country, particularly against the ICT, which have resulted in large-scale property damage and the deaths of numerous protesters at the hands of security forces. In response to these demonstrations and to militant attacks, authorities have detained thousands of JI members in counter-terrorism operations, including through enforced disappearances (see Enforced or Involuntary Disappearances).

   3.85 Authorities have particularly targeted for arrest the JI’s senior leadership, few of whom remain free and active. Other targets have included prominent leaders, ICS members and, in some cases, family members. Lower-level JI members have reportedly been able to avoid the attention of authorities either through the paying of bribes to AL leaders or by physically relocating. DFAT assesses as credible reports that the situation is better for JI members in villages than in cities.

   3.86 JI’s size has significantly reduced in recent years in the wake of the mass arrests, with many former JI members joining other parties (including the AL). DFAT understands, however, that despite its reduced size, JI is still well organised and influential in Bangladesh. Many supporters of JI strongly link their religious and political identities, resulting in a deep personal investment in the party. While JI was banned from participation in the 2014 election on the basis of its anti-secular views, some JI members contested a small number of seats in the 2018 election under the banner of the Jatiya Oikya Front (which also included the BNP). DFAT is not aware of any reports of arrests, harassment, or other forms of discrimination against JI members who contested seats under the Jatiya Oikya Front banner.

   3.87 People who are perceived as being supporters of JI have reported being followed or intimidated, including when abroad. Some government critics with no affiliation with JI have reported that they have been accused of having such links as a means of attacking their credibility. Journalists also are reportedly reluctant to report on the party (see Media).

   3.88 DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction. Active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location. As with other members of opposition parties, JI members may experience fewer employment and business opportunities due to the underground nature of their personal and professional networks and relative lack of influential connections.

   ASSESSMENT OF CLAIMS AND FINDINGS 

   Identity and country of reference

3. Given the first and third applicants have presented their identity with identity documents (names, places of birth and dates of birth) in a consistent manner, the Tribunal accepts their identities as presented to the Department to be genuine.

4. However, the second applicant has presented to the Department with two different names with different dates on his application forms. The second applicant professed to have changed his name [in] October 2012, from ‘[Alias]’ born on [Date 3] to ‘[the second applicant]’ born on [Date 2]. The specified reason for changing name was that ‘[Alias]’ was not his real name. The second applicant’s Bangladeshi passport was issued [in] 2012.

5. While the third applicant was born in Australia, neither of the first and second applicants mentioned on the birth certificate issued in Australia were holding permanent resident visas, or were Australian citizen or eligible New Zealanders. Accordingly, the third applicant is not an Australian citizen.

6. Based on the identity documents and with no evidence to the contrary, the Tribunal assesses and finds that the applicants are Bangladeshi, that the applicants are Bangladeshi nationals, and that Bangladesh is the applicants’ country of reference for the purposes of the refugee criteria and the complementary protection provisions in the Act.

   Third country protection

7. There is no evidence to suggest that the claimants have rights to enter and reside in a country other than Bangladesh, and accordingly, the Tribunal finds that the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.

   Member of the same family unit

8. The Tribunal notes and accepts the first applicant was first married in 2007 and that it ended in divorce in 2011. The first applicant described that marriage as an arranged marriage to a man [number] years older than herself. She claimed her then husband did not want to travel to Australia and that there were no children arising from this union. She provided a certificate of divorce that the marriage ended [in] October 2012.

9. Aspects of the first and second applicants’ claims are examined in more detail below. Regardless of those findings, the Tribunal acknowledges there is a marriage certificate to support the first and second applicant being formally married in 2012 in Bangladesh and accepts that they are in a genuine spousal relationship for the purposes of reg 1.12(4)(a). The Tribunal also accepts that the third applicant is a dependent child of the other applicants for the purposes of reg 1.12(4)(b). 

10. Accordingly, each of the applicants is a member of the same family unit in so far as they have interest in the operation of ss 36(2)(b) and 36(2)(c).

    Credibility findings

11. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

12. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

13. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.)

    Credibility concerns arising from the first applicant’s claims

14. The dispositive claims of this protection visa application are constructed around the first applicant’s claims that should she and the other applicants return to Bangladesh, they will suffer a real chance of serious harm or a real risk of significant harm based on her political opinion in favour of Jamaat-e-Islami or JI and her associated membership with JI which is the largest Islamist party in Bangladesh.

15. In the first applicant’s written claims she claimed to be a member of JI while studying at university and that supporters of JI and other opposition parties were subject to detention and imprisonment by the BNP-led government that was elected in 2006. The first applicant claimed she was so frightened that she went into hiding to avoid arrest and detention and then applied for a student visa to escape the oppressive political environment in Bangladesh. The first applicant closely reiterated these claims as to the reasons for her departure.

16. The Tribunal noted the first applicant had enrolled in a college called [named] College, a prestigious [tertiary] educational institution in Dhaka, to undertake [a] degree but did not finish it. The first applicant stated she did not complete it because of the political problems she experienced since 2006 – [details deleted].

17. The Tribunal enquired into the reasons the first applicant joined JI, to which she claimed that she believed in the party in her heart as she wishes for Bangladeshis to live under Islamic values. Asked to elaborate, she stated that she joined JI as it would run Bangladesh under Sharia law. The Tribunal enquired in what ways was Bangladesh un-Islamic given 90 per cent of the population are Muslim. The first applicant said the population had to follow Sharia law and that there is freedom of speech under Sharia. The only un-Islamic practice that the first applicant identified was the lack of enforcement to wear a hijab or female headscarf. She also stated that JI says Muslims have to pray five times day to practise their religion.

18. The first applicant insisted that she is a supporter of JI because the current government has banned JI meetings and the meetings of Islamic scholars and visiting Islamic scholars.

19. The Tribunal also asked the first applicant as to her views of the rights of religious minorities, such as Hindus in Bangladesh. The first applicant described Islam as a secular religion and that no minority group will be harmed. The Tribunal enquired if she was aware that JI has been accused of causing sectarian tensions between Muslim and Hindu Bangladeshis. The first applicant responded that JI did not harm Hindus and the government was responsible for such communal violence and for JI’s poor reputation. She also said that the ICT convictions against JI leaders for crimes against Hindus and others was fake and the government ‘made it happen’.

20. The Tribunal also asked the first applicant in what way was the first applicant active in JI. The first applicant said that she participated in meetings, rallies and party gatherings. The Tribunal asked if she had any evidence, such as photographic evidence to support this. The first applicant responded that ‘at this stage, I do not have pictures’. The Tribunal sought clarification as to what ‘at this stage’ meant. She clarified that she had no pictures. The Tribunal enquired whether there are media reports. The first applicant responded that she did not have any. The first applicant said that the Tribunal would have to trust her oral evidence, otherwise she did not know it was necessary to provide such evidence.

21. The Tribunal enquired whether the first applicant’s parents or siblings supported or were members of JI, to which the first applicant said they did not and were not.

22. The first applicant claimed the authorities had threatened her when the authorities came to her family’s house in Dhaka and said that they threatened to harm her if she was involved in JI and it was for these reasons she departed Bangladesh for the safety of Australia. The Tribunal notes that this was mentioned in the first applicant’s written claims and that it occurred two or three times. The Tribunal asked that if the first applicant was a person of interest, how was she able to depart from an international airport without being intercepted and apprehended as a supporter or member of JI. The first applicant said she was not stopped because the authorities at the airport were not aware of her being a person of interest and she was not the subject of an exit ban. She said it was only the local police that threatened her so as to take money from her and her family.

23. The Tribunal enquired into the reason the first applicant did not relocate to Chittagong to avoid such intimidation or the threat of detention. The first applicant said that she was a person of interest among the police across the country and that police were well networked to share information about JI supporters as persons of interest. The Tribunal asked the first applicant how she could reconcile being a person of interest across Bangladesh but not by the authorities at the airport. The first applicant reiterated that she fled Bangladesh without anyone’s knowledge but if relocated the police would come to know of her whereabouts.

24. The Tribunal asked if she personally knew anyone harmed due to their affiliation with JI. The first applicant said that she had known of a JI supporter who had to hide when the police came to ask him for ‘a donation’, which the first applicant clarified to mean a bribe.

25. In this regard, the Tribunal notes the first applicant claimed in her written statement that she attempted to lodge a police complaint, but the authorities refused to take the record or act on the complaint.

26. The Tribunal had a discussion with the first applicant about the role of Sharia law in cases where Muslims wished to change their religions given it was not permissible without punishment in countries where Sharia law is enforced, such as Malaysia, Saudi Arabia and Iran. She said it was open in Sharia law for Muslims to change their religion, including Malaysia and Saudi Arabia and that perhaps it was only Iran, which is a Shia Muslim country, that did not allow this. The Tribunal said it was a statement of fact that such countries do punish Muslims for apostasy, and that punishment may include capital punishment.

27. This exchange was an opportunity for the first applicant to demonstrate a depth of knowledge about the political platform of JI and Sharia law in general. However, the applicant, who claimed to have her safety and life threatened by the authorities because of her political membership was unable to demonstrate in any great detail the platform of JI or that she understood the wider implications of Bangladeshis adopting Sharia law for apostates or anyone else.

28. There are also some reasons to consider that the first applicant’s political and religious opinions as someone who believes or advocates for the strict adherence of Islamic dress code standards for women, is not credible. In the photograph attached to the first applicant’s expired passport the first applicant is not wearing an Islamic headdress and her terminal hair on her scalp is observable. The Tribunal asked for an explanation as it might undermine the credibility of the first applicant’s claims about her strict rejection about displaying hair in public. The first applicant noted the later passport photo was compliant with the Islamic dress code and claimed the rules were different when she had the earlier photograph attached to her passport. The Tribunal pointed out that the available country information indicates that headwear is only allowed in passport portraits when religious beliefs do not permit a woman to unveil one’s head, and that even so, the veil cannot create shadows on the face and the face has to be visible from the top of one’s forehead to the bottom of one’s chin.[1] No country information about allowing the veil as a recent innovation has been located by the Tribunal and the applicants have not provided any country information to the contrary. Given that Bangladesh is overwhelmingly an Islamic country, it is not plausible that allowing women to wear a veil has not been a long standard practice. Given these considerations, it is open to the Tribunal to further consider that the first applicant’s claimed stridency that her primary motivation for pro-Sharia law political opinions and her association with JI and support for the enforcement of the Islamic dress code has been undermined as she chose in the past not to have opted into wearing an Islamic veil for her photographic passport portrait. In turn, this inconsistency about her religious practices further undermines the overall credibility of the claims advanced in this protection visa application.

    [1] Bangladesh Passport/Visa Photo Requirements and Size, iVisa,>

    Of particular credibility concern was the substantial delay in applying for a protection visa application. The first applicant claimed that she travelled to Australia in February 2008 to seek protection; however, she did not apply for a protection visa until July 2016. An eight year and five-month delay is extraordinarily significant, given it is claimed that she departed Bangladesh due to fears of imminent political persecution. The Tribunal notes that during that period of time, the first applicant applied for student visas, a temporary employer sponsored (Subclass 457) visa and a permanent employer sponsored visa. The Tribunal asked the first applicant whether the first applicant engaged a migration agent or legal practitioners for migration advice or assistance in making these applications, to which she responded she had. She also said she used an agent back in Bangladesh when she first travelled to Australia. The Tribunal said that when she appealed to the Tribunal regarding her cancelled Subclass 457 and refused Subclass 186 visas she used a migration agent or lawyer in regard to the cancelled visa but represented herself in relation to the refused Subclass 186 visa. Following these unsuccessful appeals, the first applicant then wrote to the Minister to personally intervene in her matter in early 2016. The Minister refused to use his/her personal powers in Arpil 2016. Three months after this, the applicants then applied for protection visas in July 2016. Had the first applicant deep, urgent or genuine fears of persecution, the first applicant had ample opportunity to apply for protection at any time after her arrival in 2008 or even as late as returning to Australia after her 2012 visit to Bangladesh. During the hearing, the Tribunal noted the first applicant is an educated woman with English proficiency and who had studied English in Australia and that she had access to the internet. The first applicant responded that she did not have much time after the birth of her child [and] that the second applicant was illiterate. Given the second applicant’s educational attainment, the Tribunal does not accept this characterisation of her husband or the explanation. This explanation did not adequately explain how the first applicant was unable to lodge a protection visa application, either before the birth of her child [or] right up to the time of lodgement, given the seriousness of the claims advanced in this application.

29. Also of particular credibility concern was the absence of mentioning the applicants’ claims as to why they could not return to their country of reference in the submitted Ministerial intervention in early 2016. The Minister notified the applicants he or she refused to intervene in April 2016. During the hearing, the Tribunal enquired about which of the applicants’ compelling and compassionate circumstances were raised with the Minister. The first applicant claimed only that she had been a student and wanted to work. She said the submission to the Minister did not mention the first applicant’s fears of persecution based on her political opinion or any other reason, and attempted to qualify the reason was because the applicants did not obtain any legal assistance. At the end of the first hearing, the Tribunal requested the applicants to obtain a copy of the Ministerial intervention letter. At the second hearing, the first applicant told the Tribunal that she was unable to locate it.

1. In the context of the applicants’ delay in applying for a protection visa and in not raising the first applicant’s fears of persecution in a Ministerial intervention request, the Tribunal has also found the credibility of the applicants’ dispositive claims was further undermined by the first applicant returning to visit Bangladesh between March and July in 2012. The purpose of this visa was for the first applicant to marry the second applicant. The Tribunal enquired whether the first applicant was harmed during this three-month visit. The first applicant claimed that she avoided harm through arrest and detention because she and her husband had relocated to different places and cities during her stay before leaving again. The Tribunal enquired as to the reasons this moving around was not mentioned in her statement at the time of application. The first applicant insisted she had and that she moved to her in-laws. The first applicant said she meant to state she moved to her in-laws. However, the first applicant’s statement states the first applicant could not go anywhere and that the first applicant only left the country after the authorities visited her, made threats and told her to leave. The first applicant explicitly stated that she did not relocate as she feared being discovered, which is consistent with her oral evidence at the scheduled hearing.

2. The Tribunal enquired into the reasons the first applicant lodged a complaint against the police given the first applicant feared the intimidation of the authorities. The first applicant said that she made the complaint at a different police station away from her home and that she was about to leave the country. The Tribunal again pointed out the first applicant made a complaint against persecutors and that she feared relocation because she feared the authorities throughout her country of reference, not just local police seeking to threaten or extort her. The first applicant responded that she though the situation for JI supporters had improved and she need to marry to have male protection. The Tribunal also enquired into the reasons the first and second applicants did not marry in a third country like Malaysia, given she claimed to come to Australia in 2008 based on fears of political persecution as a member and supporter of JI. The first applicant said her parents were illiterate and would not appreciate a marriage conducted in Malaysia. The Tribunal notes that the first applicant described her father as a retired government official who worked for [a government] office which would require a degree of functional literacy to conduct such work, such as a capacity to read names and addresses. The Tribunal does not consider the first applicant’s characterisation of her father as demonstrative of someone without literacy or as a person unable to calculate risk given the claims of persecution. The Tribunal questioned whether they feared for their daughter’s safety and the local police conveyed threats to the first applicant via her parents, they would be understanding that she and the second applicant married in the safety of a third country. The first applicant insisted it was not practicable or understandable from her parents’ limited world view.

3. Furthermore, despite claiming receiving threats from the authorities and making a complaint against police for intimidatory and/or corrupt behaviour in 2012, the first applicant did not apply for a protection visa until 2016. This occurred when the applicants’ migration options were considerably narrowed following the cancellation of a Subclass 457 visa, unsuccessful appeals and the refusal of an ENS visa and a rejected Ministerial intervention request which did not mention her fears of returning to Bangladesh. Had the applicants held a genuine, deep and urgent fear of persecution for the reasons claimed, it would be reasonable to expect the applicants to have applied for a protection visa soon after the first and second applicants had both arrived in Australia later in 2012. It was open to her to marry in a third country, and she has not provided any persuasive reasons for her return to Bangladesh given her dispositive claims for protection entail fear of persecution by the authorities who operate throughout Bangladesh. The first applicant’s weak explanations for the delay in applying for protection visas has further invited the Tribunal to consider that the first applicant and her husband did not relocate to different parts within their home country in the context of the Tribunal’s other credibility concerns and that this aspect of her claim was only advanced to augment her otherwise weak reasons for returning to Bangladesh in 2012.

4. The Tribunal further noted that during the first hearing, the first applicant described the first and second applicants’ marriage as arranged before it was solemnised in Bangladesh [in] April 2012. However, the second applicant provided an inconsistent account that the couple first talked over the phone and then they met face to face while in Australia. The Tribunal noted in the hearing that on page 2 of the second applicant’s 866C form the first and second applicants claimed to be in a spousal relationship since [in] October 2011. This strongly indicated that the married couple were known to each other and living as a spousal couple prior to their marriage ceremony in Bangladesh in 2012 and not in an arranged marriage as claimed by the first applicant. The second applicant explained the date of [Day 1] October 2011 was significant as it was the date of divorce of the first applicant from her previous husband. (The actual date of divorce was [Day 2] October 2011). The Tribunal finds that the evidence supports the applicants were living as a spousal couple since at least 2011 and that they did not enter into an arranged marriage, which is not untypical among traditional and observant Muslim families in Bangladesh. In the context of the Tribunal’s other credibility concern, this inconsistent account between the first and second applicants about the inception of their union has further invited the Tribunal to consider the first applicant attempted to augment her claims to be a strictly observant Islamic woman supportive of an Islamist political party.

5. There are also some reasons to consider that the first applicant’s political and religious opinions as someone who believes or advocates for the strictly adherence of Islamic dress code standards for women is not credible. In the photograph attached to the first applicant’s passport (valid between [2012] and [2017]) the first applicant is not wearing an Islamic headdress and her terminal hair on her scalp is observable. The Tribunal asked for an explanation as it might undermine the credibility of the first applicant’s claims about her strict rejection about displaying hair in public. The first applicant noted the photograph in the subsequent passport was compliant with Islamic dress code and claimed the rules were different when she had the earlier photograph attached to her passport. The Tribunal pointed out that the available country information indicates that headwear is only allowed in passport portraits when religious beliefs do not permit it to unveil one’s head, and that even so, the veil cannot create shadows on the face and the face has to be visible from the top of one’s forehead to the bottom of one’s chin.[2] No country information about allowing the veil as a recent innovation has been located by the Tribunal and the applicants have not provided any country information to the contrary. Given that Bangladesh is overwhelmingly an Islamic country, it is not plausible that allowing women to wear a veil has not been a long standard practice. Given these considerations, it is open to the Tribunal to further consider that the first applicant’s claimed stridency that her primary motivation for pro-Sharia law political opinions and her association with JI has been that support for the enforcement of the Islamic dress code has been undermined as she chose in the past not to have opted into wearing an Islamic veil for her photographic passport portrait. In turn, this inconsistency about her religious practices further undermines the overall credibility of the claims advanced in this protection visa application.

   [2] Bangladesh Passport/Visa Photo Requirements and Size, iVisa,>

   Taking all these credibility concerns cumulatively into consideration has further invited the Tribunal to consider the applicants’ fears of returning to Bangladesh lacked overall credibility. However, the Tribunal does not make any overall findings without examining the second applicant’s dispositive claims for protection.

   Credibility concerns arising from the second applicant’s claims

6. In the first applicant’s written claims, it was not explicitly claimed that the second applicant was a person of interest in his own right at the time of his departure in 2012 or at the time this protection visa application was lodged in 2016.

7. During the first hearing, the first applicant was provided an opportunity on whether her husband had any claims of his own or how her claimed circumstances amounted to him having a real chance of serious harm or a real risk of significant harm. However, the first applicant did advance that she and the second applicant held personally held fears because the authorities who have threatened and harassed the first applicant about her JI support and membership, will target and seriously or significantly harm the second applicant because the authorities look for weak points to hurt persons of particular or specific adverse interest, such as herself. The Tribunal asked whether the second applicant has any political opinions or affiliations of his own, to which the first applicant claimed that he is ‘Islamic minded’ and in favour of the enforcement of Islamic dress code but otherwise the second applicant had no memberships of any political party or movement.

8. During the resumed hearing, the first applicant was asked why the second applicant had two names (see page 2 of the second applicant’s 866C page). The first applicant responded by stating that her husband had come to Australia previously in or around 2005 or 2006. The first applicant explained he had travelled to Australia on a visitor visa and remained here four or five years with the assistance of a lawyer but was unsure if he applied for a protection visa. She further explained that he had used a passport with a fake name and stated that he was young then and did not know what he was doing.

9. The second applicant elaborated in the resumed hearing that his actual name was [Alias], born in Dhaka. He claimed that he completed Year 12 in Bangladesh and later qualified as an [Occupation]. After working two years, the second applicant worked in [Country 1] and later studied [Subject] in [Country 2] before coming to Australia in 2005. Soon after his arrival in Australia, the second applicant lodged an application for a protection visa. The applicants did not mention the previous protection visa application because the claims had been fabricated. He claimed he left Australia in March 2012 (which the Tribunal accepts after checking against his movement record). The second applicant explained he wanted to hide or obscure this information from the Department as this matter was not his case, but his wife’s and because he wanted to rely on the strength of her claims for protection. The Tribunal acknowledges the second applicant’s candour in this regard, and it accepts he did lodge a protection visa with contrived claims, as claimed. Nonetheless, in the context of its credibility concerns about the first applicant’s political opinion claims, the second applicant’s admission about fabricating earlier claims for protection in 2005 further invited the Tribunal to consider overall credibility about the applicants’ dispositive claims in this visa application was lacking.

10. Leaving aside the second applicant’s history of advancing fabricated claims in the past, the Tribunal enquired if the second applicant had any genuine reasons for departing his country of nationality and for remaining in Australia between 2005 and 2012 and for not returning under current circumstances.

11. The second applicant elaborated that after he completed Year 12, he associated with ‘a bad group’. He explained his involvement in ‘a robbery’ led to him being convicted and sentenced to jail for up to two years. The second applicant claimed to be placed on ‘bail’ or parole and was required to report to a court on a monthly basis, but he did not comply and left for [Country 1] on a student visa. He further claimed that there was an outstanding warrant for his arrest in connection to the crime or for leaving Bangladesh without complying with ‘bail’ or parole conditions. The second applicant further claimed it was family members who had activated the warrant against him because they hate him and wanted him dead. He fears further imprisonment of up to 12 years in a Bangladeshi jail where conditions will exacerbate his health conditions leading to death.

100.   The second applicant was asked the extent of his knowledge about his wife’s claims for protection. He described her fears of persecution as the first applicant was having some difficulties at university, but he did not know much about her problems. The Tribunal found this curious given their spousal relationship would entail disclosure. The second applicant further claimed that, when they returned to Bangladesh, his wife had evaded the authorities by not spending time at the residence of his in-laws, and that they did not spend time at his own parents’ residence because of his fears of harm.

101.   The Tribunal asked when the second applicant first was aware of his wife’s fears of persecution. He provided two answers: first it was before their return to Bangladesh, and secondly when they had married in Bangladesh. The Tribunal enquired, if he knew before returning to Bangladesh, why had the couple returned to the country where he feared persecution and not considered marrying in a third country. The second applicant claimed that [Country 1] would not allow him entry. However, the Tribunal pointed out that the second applicant’s passport indicated he had travelled from Australia to [Country 1] between February and March 2013, undermining the claim that he was somehow restricted from returning to [Country 1] in 2012 to marry the first applicant and unavoidably returning to Bangladesh.

102.   Under the same vein of questioning, the second applicant then changed his testimony stating that he was aware in the period leading up to the application for protection visas in 2016. The Tribunal enquired, if this was the case, why were the applicants moving around Bangladesh to evade the authorities if he was not aware of his wife’s difficulties with the authorities based on her overlapping political and religious claims. The second applicant did not respond.

103.   The Tribunal further notes that the first applicant provided oral evidence to have spent time with her in-laws. This undermined the credibility of the second applicant’s claim that he had not spent time with his family or that his family loathed him so much that they instigated a warrant for his arrest in 2009 or wanted to seriously or significantly harm him or even that he had been involved in any theft leading to jail time, as claimed. 

104.   The Tribunal asked if there was an arrest warrant for him, then it would be expected that he would be arrested on arrival. The second applicant did not address this concern other than to claim that information relevant to warrants was not shared between different parts of the authorities.

105.   However, during the same hearing, the Tribunal noted that the second applicant went to one or more Bangladeshi agencies to change his identity and obtain a passport which entailed going to a police station and that he obtained a character letter from a police station. The character letter was submitted to the Department and is countersigned by a Bangladeshi police official.  Had the second applicant genuinely held fears of being arrested due to an outstanding warrant, it would have been reasonable for the second applicant to avoid the authorities in Bangladesh altogether by marrying outside of Bangladesh and applying for an offshore partner visa. Instead, the second applicant engaged the authorities both on arrival and in the process of fabricating a new identity with fraudulently obtained identity and other documents to circumvent Australia’s migration laws so he could return to Australia as a secondary visa holder for a Subclass 457 visa.

106.   In the context of the credibility concerns outlined above, the credibility of the submitted letter from a branch of [a] Bank dated [September] 2009 has been considered.  According to the handwritten letter by the bank, the licenced financial institution in question filed a complaint against the second applicant for using a bank draft (a negotiable instrument that is used like a cheque) and that it has demanded a cousin of the second applicant, [Mr B], to repay the outstanding amount without interest and other penalties. The second applicant explained that [Mr B] was his relative, and that he and his family, including his parents, in general wish him serious or significant harm for placing the onus of debt on them and for instigating a general loss of reputation to the wider family for his criminal activities. As mentioned above, had the second applicant been a person of opprobrium to his family since at least 2009, as the letter indicates, then this further undermined the first applicant’s claim that the first and second applicant evaded the authorities by residing with the second applicant’s family and further undermined the credibility of both the applicants.

107.   Of particular credibility concern about this documentary evidence, is that the Tribunal is unable to locate any country information to support the second applicant’s claim that family members carry the legal liabilities for the embezzlements, defrauding, robberies or other kinds of theft from financial institutions committed by other family members. Furthermore, the country information from the past and recent DFAT reports indicating that fraudulent documents, that are either manufactured by a specialist fraudulent manufacturer or as fraudulently obtained genuine documents, is common. In this case, the bank’s 2009 letter, while on letterhead, is handwritten and unprofessionally formatted. Neither does the content of the letter cite the legal authority upon which the bank has to seek compensation from the second applicant’s relative. All these elements about the banks are not consistent with the financial and legal gravitas of the matter and has further invited the Tribunal to consider the letter that was submitted to the Tribunal was bogus and to consider the second applicant’s claims to be a person of interest based on past criminal activities lacks overall credibility. 

108.   The applicants had not denied the second applicant had a past alias, neither does the application forms nor the statements make it explicit that the second applicant had attempted to obtain Australia’s protection obligations under that alias 10 years before returning to Australia to apply for this protection visa application now under review. This is deceitful behaviour. The Tribunal acknowledges there has been some late candour about the second applicant’s earlier claims. However, in the context of the credibility concerns about his claims, this may not be sufficient for the Tribunal to overcome its concerns and doubts that the applicants have deliberately and knowingly set about to deceive decision-makers about the second applicant’s claims and provide at least one critical bogus document to augment his embellished or contrived claims for protection.

Cumulative credibility findings

109.   The first and second applicant’s credibility, cumulatively considered, is of central importance to the Tribunal’s determination of this review application for protection.

110.   Given the first applicant’s claims of persecution are linked to incidents that occurred over a decade ago, the Tribunal must be very careful in placing too much weight on inconsistencies and other unfavorable credibility concerns when making adverse findings. Political persecution against ordinary members of opposition parties in Bangladesh, including JI, is a genuine human rights concern. As outlined above DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction while active JI members who continue in political activities and demonstrations also have a high risk of arrest. Furthermore, being subject to any outstanding warrants or summons in Bangladesh raise pertinent and pressing issues about the treatment and punishment of returnees to that country under both the refugee and complementary protection provisions of the Act.

111.   However, in this review application, the Tribunal’s adverse credibility concerns are so extensive and numerous as well as unsubstantiated, when cumulatively considered, it is unable to provide the benefit of the doubt to either the first or second applicant and finds they are not reliable or credible witnesses of truth.

112.   The first applicant’s dispositive claims contained a number of significantly mutually unsupportive claims and changed testimony, both written and oral. Not only were they lacking internal coherency, the first applicant was unable to provide a depth of knowledge about JI’s platform and the Sharia law commensurate with an active member of that Islamist movement with a tertiary education. Her claims to hold a genuine, urgent and deep fear of persecution based on her claimed political claims were also considerably undermined by the significant delay in applying for a protection visa and her return for a three-month visit to Bangladesh.

113.   With regard to the second applicant, the Tribunal maintains an open mind that he had embezzled or stolen money for which he had been punished through imprisonment before his first arrival in Australia. However, the second applicant’s admissions to have lodged an earlier protection with bogus claims and his return visit to Bangladesh to fraudulently obtain a new identity for migration and a number of other inconsistencies about the significant delay in applying for protection visas undermined the first applicant as to being a person who held or holds a genuine, urgent and deep fear of persecution based on her claimed political claims both at the time of application and at the time of making this decision.

114.   In reaching this overall adverse credibility finding, the Tribunal has placed considerable weight on the applicants failing to raise any fears of serious or significant harm in returning to their country of reference when they requested the Minister to personally intervene in this matter. Based on this overall adverse credibility finding, cumulatively considered, the Tribunal makes the following findings:

115.   The Tribunal does not accept that the first applicant was a genuine member or supporter of JI or any other opposition party since 2006, as claimed. The applicant demonstrated an insufficient level of understanding of JI’s political platform or Sharia law, whereby she had ever been active in claimed demonstrations and other party activities. Although it is accepted the applicant is an observant Muslim, it does not accept the first applicant formally joined or was even loosely associated with JI or any affiliated organisation or its supporters or is as stridently religious as she has attempted to demonstrate. The Tribunal does not accept the first applicant’s claims to be or identify as a strictly observant Islam who wishes to enforce Islamic dress codes and the Sharia laws on Muslim Bangladeshis or Bangladeshis in general or that she has ever believed the stricter practice that Muslim marriages should be arranged by parents.

116.   It follows from the Tribunal’s cumulative credibility findings, that it does not accept the first applicant or any of her family members have ever been harassed, extorted, or threatened, either directly or indirectly with arrest or detention, or another serious harm or that the authorities requested bribes prior to her departure in early 2008. It does not accept the first applicant was a person of interest to the authorities prior to her departure based on these political and religious claims.

117.   Furthermore, the Tribunal does not accept the applicant departed Australia in 2008 due to fears of persecution arising from the applicant’s contrived political opinion claims. Neither does it accept the first applicant’s parents encouraged her to marry her first husband or to leave Bangladesh for Australia on a student visa because of fears of persecution. 

118.   The Tribunal does not accept the first applicant’s claims that she returned to Bangladesh to marry into an arranged marriage with the second applicant. That is because their otherwise genuine romantic and spousal relationship predated their nikah in Bangladesh. The Tribunal accepts the second applicant’s testimony and the evidence presented in the protection visa application that they knew each other and lived together in Australia before their marriage, which the first applicant had falsely claimed not to have occurred. Furthermore, it does not accept the various explanations that they could not marry in Australia or offshore in a third country, such as Malaysia. The overwhelming evidence provided by the second applicant to the marriage took place in Bangladesh to augment the second applicant’s likelihood of migrating as a secondary applicant to the first applicant’s Australian sponsored work visa and that the first applicant willingly and knowingly facilitated this falsehood about the second applicant’s identity.   

119.   Nor does the Tribunal accept the first applicant held any fears about returning to Bangladesh, about relocating within it or even departing that country based on her contrived dispositive claims about her religious and political opinions or associations. There is no credible basis for the Tribunal to believe that first applicant has not been a person of interest by the authorities for the reasons claimed at any time in the past.

120.   Furthermore, the Tribunal does not accept the explanations that the first applicant returned to Bangladesh in 2012 with any sense of trepidation, as claimed. While the Tribunal accepts the first applicant returned to Bangladesh to marry the second applicant, it finds that neither the first applicant nor any family members, immediate or otherwise, experienced any politically or corruptly motivated harassment or threats by the authorities for the reasons claimed over that three-month period. It does not accept the applicant either remained at her parents’ home and/or in-laws’ home to avoid harm as claimed or implied in her written claims, or, as she inconsistently claimed in one of the scheduled hearings, that she relocated to other parts of her country of nationality to evade the authorities or that information about her as a person of interest was not shared throughout the authorities, including the police and custom officials.

121.   Neither does it accept the applicant ever approached the police at any police station to make a complaint about the police operating at another station or that she was refused any protective assistance when she returned to Bangladesh in 2012. This was a particularly egregious and clumsy example of the first applicant’s attempt to augment her contrived set of claims.

122.   Noting the first applicant had ample opportunity to obtain migration advice and assistance since first arriving in Australia in 2008, it does not accept the explanations as to why she did not apply for a protection visa right up until 2016. It does not accept the first applicant did not have any knowledge of protection visas until her migration options for substantive visas were exhausted in the first half of 2016, not least because she was aware of her husband’s past experience with protection visa applications prior to their marriage. The Tribunal finds that the triggering event of the applicants applying for protection visas in 2016 was because the applicants’ migration options had substantially narrowed the refusal by the Minister to personally intervene in granting visas after they were unsuccessful in restoring their cancelled sponsored work visas at appeal in 2008.

123.   It is in the context of these considerable adverse credibility findings, cumulatively considered, that the Tribunal does not accept that the first applicant has any genuine personally held fears of persecution for any of the claimed nexus reasons outlined in            s 5J(1)(a) or any other reason, either written, or oral, in returning to the applicant’s country of nationality and reference, as the Tribunal finds that the first applicant has fabricated both her written and oral claims for protection for solely migration purposes.

124.   It is not in dispute that the second applicant has used a false alias which was fraudulently obtained in this visa application and that he did so for migration purposes. Neither is it in dispute that he had earlier applied for a protection visa under his genuine name but was otherwise unaware of those claims. The Tribunal is mindful that it is possible that dispositive claims for protection that are as lately elaborated upon as the second applicant’s, can be genuine. However, the Tribunal finds that it is also unable to accept the second applicant’s late claims for protection or that the applicant held any genuine, deep or urgent fears of persecution at the earlier application for protection in 2006 or in 2016 when the second applicant decided to rely on the strength of the first applicant’s claims.

125.   The Tribunal finds the oral and documentary evidence to support claims that the applicant had variously been arrested, convicted, imprisoned, paroled or had been subject to warrant or summons for embezzling or defrauding a bank out of a notable amount of money is weakly and fraudulently demonstrated as lacking in credibility. The Tribunal finds that a handwritten document from a bank was bogus. Neither does it accept that there is any lawful authority for any Bangladeshi bank to penalise a relative for another relative’s criminal behaviour. It follows from this that the Tribunal does not accept the second applicant’s relative in question or any other family in general are motivated to harm seriously or significantly the second applicant. It is the Tribunal’s assessment that the claims the applicants have advanced about the onus of debt on other family members or that the second applicant instigated a general loss of reputation to the wider family arising his fabricated criminal activities.

126.   Based on these cumulative adverse credibility findings, it follows that the Tribunal does not accept the applicant ever held any serious fears of persecution for a nexus reason mentioned under s 5J(1)(a) or had a risk of significant harm, either when he first left Bangladesh for Australia or when he returned to Bangladesh in 2012 or that he and his wife had evaded the effect of any outstanding warrant or summons or by family members who wanted to harm him. There is no credible basis for the Tribunal to accept that the second applicant had not been intercepted either on arrival to or departure from Bangladesh in the past because local police did not share information with the authorities at the airport, as claimed. It does not accept the applicant will on return to Bangladesh have a real chance or a real risk of being imprisoned where the conditions will exacerbate his medical conditions leading to death, as claimed. The claim that the second applicant is a person of interest to the authorities either based on past criminal activities, outstanding debts or some imputation of his political opinion as anti-government and pro-JI, is not accepted.

127.   Given these overall adverse credibility findings, it does not accept that either of the applicants personally held any genuine, deep or urgent fears of persecution based on the first applicant’s political opinion claims in favour of any opposition Islamist party and against the current ruling party in Bangladesh, as claimed, either at the time of her first arrival into Australia, when she returned to Australia in July 2012 or at the time of application or even during the scheduled hearing. Neither does the Tribunal accept the first and second applicants hold any genuine, deep or urgent personally held fears of persecution for the first applicant’s overlapping political opinion and religious conviction claims, or any other related reasons mentioned under s 5J(1)(a), should the applicants return to Bangladesh, either now or into the reasonably foreseeable future. Nor does the Tribunal accept the first and second applicants will have a real chance of serious harm for any political opinion or religious religion, imputed or otherwise, should they return to Bangladesh. This is because the Tribunal finds that the first and second applicants have deliberately and purposefully set out to deceive both the Department and the Tribunal in presenting a contrived set of claims about political opinion after the applicants had very limited options in applying for substantive visas after exhausting nearly all migration options up to 2016.

128.   It is in the context of the considerable adverse credibility findings about the second applicant’s claims, cumulatively considered, that the Tribunal does not accept that the first and second applicants have any genuine personally held fears of persecution for any of the claimed nexus reasons outlined in s 5J(1)(a) or any other reason, in returning to the applicant’s country of nationality and reference, as the Tribunal finds that the second applicant has fabricated his oral and documentary claims for protection for solely migration purposes.

129.   Based on these cumulative adverse credibility findings regarding both the first and second applicants, the Tribunal does not accept they have a well-founded fear of persecution for any of the claimed nexus reasons outlined in s 5J(1)(a) either now or into the foreseeable future, and do not satisfy s 36(2)(a).

130.   Based on these same adverse credibility findings about their combined dispositive claims for protection, the Tribunal finds that it has no substantial reasons to believe that the first and second applicants, as a necessary and foreseeable consequence of being removed from Australia for Bangladesh, will face a real risk of significant harm arising from either fabricated political and religious claims made by the first applicant or the second applicant’s late claims about fears of an outstanding debt and/or summons and/or warrant.

The applicants’ mental and physical health

131.   The Tribunal notes that the first and second applicants had raised health reasons.

132.   The Tribunal notes that the applicants were invited to a scheduled hearing for 14 October 2022. On 5 October 2022, a request for a postponed hearing was received by the Tribunal on the basis that the first applicant was attending an appointment with a maternity clinic and the second applicant was attending an appointment for a coronary angiogram on the same day as the appointment. The postponement request was granted, and the applicants were invited to a rescheduled hearing on 19 October 2022.

133.   The Tribunal received a further request for a postponed hearing on 13 October 2022, the Tribunal received a hearing response indicating that the first and second applicants would attend the hearing and that the first applicant has anxiety and takes medication which affects her recall of events and information. It further states that the second applicant has had two heart attacks in the last four years and that stress will exacerbate his coronary condition.

134.   At the first hearing, the Tribunal received a number of health documents in relation to the first and second applicants, including a letter by a medical professional dated 30 September 2022 seeking a postponement of the hearing until the birth of the first applicant’s baby. The letter stated the first applicant has gestational diabetes and was feeling stressed, socially withdrawn, forgetful and anxious, and that her anxiety was treated through antidepressants. It further states that the second applicant has coronary disease. Other medical information included a February 2021 document that the second applicant had undergone cardiothoracic surgery. At the begging of the second hearing, the second applicant said that he suffered from dizziness and that he was on a range of medicines to treat coronary disease and tuberculosis.

135.   The Tribunal appreciates that pregnancy can be a stressful period for applicants in protection matters. It acknowledges that mental health conditions are relevant considerations for the conduct of the hearing. It also appreciates that coronary disease and tuberculous are significant but treatable health issues.

136.   However, the combined effect of these medical conditions, including mental health symptoms for which the first applicant was receiving treatment, does not necessarily restrict applicants from providing evidence and presenting arguments as to the reasons they are owed Australia’s protection obligations. During the hearings, the applicants, while enduring stress, conveyed oral evidence by elaborating on their claims and answering questions over sustained periods with clarity and without any significant hesitation or behavioural concerns. While the Tribunal accepts that the applicants have combined health problems as evidenced by third-party professionals, the weight given to inconsistent and contrived claims based on a lack of psychological and/or physical wellbeing relies heavily on the overall credibility on the applicants’ critical claims for protection. The Tribunal is not satisfied the abovementioned unfavourable credibility concerns about the applicants’ written, oral and documentary evidence claims were directly related to the applicants’ psychological and physical well-being and finds the specific and overall credibility concerns were due to the applicants fabricating critical aspects of their claims for migration purposes and not because the applicant had a genuine fear of persecution if she were to return to Bangladesh at the time of application, now or into the foreseeable future. The Tribunal is satisfied that the applicants were given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s 425 of the Act.

137.    For completeness, the Tribunal does not accept the first and second applciants face a real risk of serious harm for any nexus reason or a real risk of significant harm arising from these health concerns. In this regard, the Tribunal notes that the Bangladeshi health system is not as well-funded or as comprehensive as Australia’s. However, there is reason to believe that the applciants will be denied access to health services for any of the reasons mentioned under s 5J(1)((a) in returning to Bangladesh. Moreover, the applicants’ health conditions are diagnosed and treatable, and the first and second applicants will be able to earn income to afford treatments into the future. The Tribunal does not accept any of the inadequacies arising from the Bangladeshi health system amount to the significant harm, including whereby they will face a real risk of being subjected to cruel, inhuman, or degrading treatment or punishment as necessary and foreseeable consequence of the applicants being removed from Australia to their country of reference.

The third applicant

138.   The first and second applicants advanced claims that the third applicant faces a real chance of serious harm or real risk of significant harm based on her dependency on them, if the third applicant and his mother and father were to return to Bangladesh. The Tribunal notes the second applicant claimed he feared the third applicant and his other child will be killed by the authorities because of his wife’s political opinion and religious conviction claims for protection. The Tribunal does not accept this based on the adverse credibility findings above. No other claims to other nexus reasons mentioned under s 5J(1)(a) or any other reasons were made on behalf of the third applicant, either by the first or second applicants.

139.   The first and second applicants’ dispositive claims lack overall credibility, and the Tribunal has made findings that they do not meet the criteria under s 36(2)(a) and 36(2(aa), should they return to Bangladesh. Because the third applicant does not have any distinct claims of her own and the Tribunal does not accept the other applicants hold any credible or well-founded fears of persecution for any nexus reason or a real risk of significant harm, the Tribunal is not satisfied that there is a real chance the third applicant will suffer serious harm for any of the reasons mentioned under s 5J(1)(a), or a real risk of significant harm if the third applicant were to return to Bangladesh with her parents, arising from those claims as individually and cumulatively assessed above.

Cumulative findings

140.   There are no more residual claims to consider in this matter.

141.   Based on the adverse credibility findings above and on the applicants’ accepted claims and circumstances, both individually and cumulatively considered, the Tribunal does not accept that the applicants face any real chance of serious harm based on their overall circumstances, on return to anywhere in Bangladesh for any reasons outlined in s 5J(1)(a) of the Act in the reasonably foreseeable future.

142.   The Tribunal accordingly finds that the applicants do not have a well-founded fear of persecution that satisfies s 5J(1)(a),(b) or (c) and that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) or within the meaning of refugee as required by s 5H(1).

143.   Having considered all the applicants’ accepted claims and circumstances in the context of the Tribunal’s adverse credibility findings outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s 36(2)(aa).

Conclusion

1. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

145.   The Tribunal affirms the decision not to grant the applicants protection visas.

Brendan Darcy
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.

…