1719183 (Refugee)

1719183 (Refugee) [2018] AATA 922 (28 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719183
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Michael Hawkins
DATE:28 February 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2018 at 7:57am

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh National Party activist – Opposition to Awami League Government – Fear of physical violence – Fear of killing – Party structure – Attacks on business

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedules 1-2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL (2012) FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor (1994) FCA 1105
Zhang v RRT & Anor (1997) FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] July 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant sought a review of the delegate’s decision to the Tribunal (differently constituted). That Tribunal affirmed the delegate’s decision on 1 December 2016, and that decision was set aside by the Federal Circuit Court by consent [in] August 2017 and the FCC remitted the application for review to this Tribunal for review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [an age] year old man from [Town 1], Faridpup, Pabna, Bangladesh.
The applicant is of the Sunni Muslim faith, is of Bengali ethnicity, and speaks Bengali.
The applicant is married.
The applicant completed his [School] education in Bangladesh [in specified years].
The applicant completed a [course] from [named] from [specified years].
The applicant owned a business called [Business 1] which was [an education provider] in Bangladesh.
The applicant arrived in Australia [in] May 2015, under Passport No [number], issued [in] November 2014 and expiring [in] 2019 pursuant to a [temporary] visa granted [in] March 2015 and expiring [in] August 2015.
The applicant applied for a protection visa [in] July 2015.
The applicant did attend an interview with the delegate [in] September 2015, but has not provided additional information in support of his claims prior to this hearing.
Claims:
The applicant’s claims are set out in his statutory declaration dated [in] July 2015:
This statement is submitted in support of my application for an onshore protection visa.
My wife, [name] (DOB: [specified]) and our son, [named] (DOB: [date]) are still residing in Bangladesh. They are not in Australia with me and will not be included in this application.
I am a citizen of Bangladesh and hold a Bangladeshi passport [number]. My passport was issued [in] 2014 and will expire [in] 2019. This is my second passport. I obtained my first passport [in] 2013; [number]; however, it had to be renewed because of an error in my father's name in the bio page. It was printed as [name] instead of [name], which is the correct spelling.
I was reluctant to renew my passport because I did not want to expose myself to any authority. When I obtained my passport in 2013, I had to be very careful so I would not stand out. I did not feel too comfortable, but I needed to obtain my passport just in case I had to flee my country.
After discussing my circumstances in Bangladesh with my [Relative A, named] in Australia, I sent a copy of my passport for her to apply for a visa for me sometime in 2013. [She] pointed out the spelling error in our father's name. [She], insisted that I have the spelling mistake corrected. [She] did not want to submit any information that was inconsistent with what she had previously provided to the Department of Immigration for her visa.
[She] told me that The Australian Government was very particular in this regard and could refuse my application over such a simple mistake. I did not want to face that risk, so I had no choice but to renew my passport in 2014. The people at the counter of the passport office are generally low level bureaucrats so I considered the risk was worth taking. I managed to do this without incident.
I entered Australia [in] May 2015. I currently hold a [temporary visa], which was granted [March] 2015. My [Relative A], sponsored me to obtain this visa. This [visa] will expire three (3) months from the date of my entry to Australia. I believe that will be [date]..
Since I arrived in Australia, [my Relative A] and her husband, [Mr A] have been supporting me. [Mr A] has been helping me in communicating with migration agent to go through this protection visa application. I currently reside with [Mr A] and his wife, [named] at the above mentioned address.
I was born in [Town 1], in the northern part of Bangladesh on [date].
I am a son of my father, [name] and my mother, [name]. I have [number] siblings. My mother and all of my siblings except for [one], [named], reside in Bangladesh. My father is deceased. He passed away due to stroke on [date].
[My wife] and I married on [date]. We have been living in the same village, [Town 1] close to my family after we married.
I am a [Party Position 1] of [Region 1] (administrative and geographic Region) for the Bangladesh Nationalist Party (BNP). [Region 1] is one of the [number] Upazilas within the [named] Zila (administrative and geographic District).
There are 64 Zilas (Districts) in Bangladesh. There are Mahangar (Divisional) BNP executive committees, then the National Executive Committee which is above the Zilas. The National Standing Committee is the top tier of the structure and consists of nineteen (19) members including the chairperson of BNP.
The president [Mr B] has been leading our [region]. We have five (5) [Party Position 2s] directly supporting [Mr B]: [names of office bearers]. I am the [Party Position 1] which is below the [Party Position 2s]. There are [numbers of specified positions] working beneath me in our organisation.
There are also Union executive committees and Ward executive committees, which are small supporting groups at the village and ward level.
As a [Party Position 1] I have responsibilities coordinating all activities between the [Party Position 2s] and [specified positions] who work under me. I take directions and orders from the [Party Position 2s] and implement them together with my staff members. One of the important responsibilities that I have is organising gatherings and meetings to promote our political beliefs and direction.
I have also been running my own business as [an executive] of [Business 1] since 2004. It is [an education provider] where people can learn [specified courses]. We offer six (6) month courses and issue a certificate of completion to people who attend our training course. I have two teachers; [Teacher 1] and [Teacher 2] working for me. Since I had to flee my country, those two teachers have been trying to sustain my business; however, I have been receiving news that the situation is worsening.
I started fearing for my life especially around the January 2014 election. I became targeted because of my political opinion that I have been publically expressing as one of the key regional members of the BNP. Prior to and after the election on 5 January 2014, many key members of the BNP have been persecuted, jailed and harassed by the ruling party, Awami League (AL). Many of us went into hiding or fled the country in order to secure our safety.
That was why I obtained a [temporary] visa for Australia with my [Relative A’s] sponsorship. Approximately two (2) years ago I went into hiding and I have not able to stay with my family since then. I had to keep changing where I was staying. I only stayed with my relatives and friends who lived in remote areas of Bangladesh. I was only able to visit my wife and son from time to time, and only then in the middle of night so I would not be seem.
I had to leave my wife and son behind. I did not want to risk their lives by arranging their passports and travel to Australia with me. I simply thought it safer for us not to travel together. They are now keeping a very low profile with my mother, [another relative], and his family in order to secure their safety. In a way they may be safer because I am not with them. I am being targeted by people in the Awami League (AL). The AL are trying to harm or even kill me, they are not necessarily interested in the rest of my family. However, people in the Awami League (AL) have been verbally threating my family in order to confirm my whereabouts. My wife now limits herself going outside of the house because she does not want to expose herself to any harassment by AL members. Our son still attends school near our house, but my [relatives] always accompany our [son] in order to make sure he is safe. He attends a small local private school, so I believe there is no real risk of harm towards my son. The focus is on me and my whereabouts.
When I told my wife, [name], that I might have to flee the country, she told me to run. She said that my safety was her priority. [She] told me that if I was killed, she would be alone forever so it was better for me to go. [She] assured me that she and [our son] would be waiting for me until we could all be re-united.
Once I am granted a permanent protection visa, I wish to apply for a visa for my wife and our child, so we can be re-united in Australia.
Persecution and Serious Discrimination
As stated above, I have been expressing my political opinion as a key regional member of the BNP. I have been persecuted and fear for my life because of my expressed political opinion and the position that I hold in the BNP. The conflict between the BNP and AL has escalated to the point that the ruling party, AL has been persecuting all the key members of the BNP. Their goal is to eradicate the BNP in Bangladesh.
My political life started when I commenced my [named school] in the Bogra district in [year]. In Bangladesh, students are usually very active in politics and this is the main source of promoting political belief. I became an activist for the BNP because I believed that the BNP had a better policy, particularly in the area of human rights, infrastructure improvement such as road construction and family affairs. I was always interested in helping people in need and I believed the BNP was the party that could help people. There were approximately five hundred (500) students in my school and I recall that approximately 150 to 200 students supported the BNP and 250 to 300 supported the AL.
I joined "Bangladesh Jatiaytabadi Chattradal" [at my school in] Bogra in [year]. It is one of the student councils governed by BNP. I was selected as a [party role 1] and I was involved in conveying messages from the council to the students through meetings, seminar rally and organizing gatherings. Since the student politics is the main stream of the national politics in Bangladesh, I had a very good communication with [Region 1] BNP executive committee and I took part in various local BNP's political activities and helped local leaders of the [Region 1]. We used to hold gatherings and meetings to voice our political opinions and criticised our major opposing party, the AL,
I [completed school] in [year]. I was very involved with the politics as a student leader and used to spend a significant amount of time being politically active, so it took me [number] years to pass the [qualification]. I became an executive member of the BNP as soon as I finished my final examinations. I did not continue my higher education because I wanted to focus on my political activity.
As a member of the [Region 1] regional BNP, I used to door knock residents houses in our local area and tried to recruit more people to become our supporters. I believe that we had approximately 300-400 supporters in our regional area then.
There were [number] executive members in [Region 1] BNP. I soon became one of the leaders of this committee. I was selected to be the [Party Position 3] by the executive committee in the [Region 1] in early 1999. I had to communicate with district BNP office and making notice and schedules of seminars, rally for the party in [our region].
The BNP was in power between 2001 and 2006. I was still very active in politics supporting the BNP. I had a busy life as an active member of the BNP. I was acting as a [party role 1] between 2002 and 2004 and [party role 2] between 2004 and 2008. During this period, we did not have any major problems with any of the opposing parties.
The caretaker government took over between 2006 and 2008. The caretaker government deployed the army to control any political gatherings and meetings during this period, so we did not have any major crisis among the opposing political parties then.
During this period, I obtained a certificate in [training] and opened my above mentioned business in 2004. I also married [wife’s name] on [date]. Our son, [name] was born [in year]. My life was relatively peaceful and going well then.
In February 2011 I was appointed by [Mr B], the chairman of [Region 1] regional office, to be promoted to a [Party Position 1] of the [Region 1],
Bangladesh has a history of going though political turmoil and conflict. The two (2) major political parties, BNP and AL have been taking turns to be the ruling party in the parliament. AL has been the ruling party since December 2008. However, our political conflict used to be under some level of control because of the caretaker system that used to take over the government during the elections.
The political situation changed dramatically when the AL pushed through legislation to abolish the caretaker system by amending the constitution in June 2011. The "election commission Bangladesh" declared to commence National election without caretaker government by 5th January 2014 under the ruling of the AL government. BNP and other alliances did not participate the election claiming that the election would not be free and fare. Since then confliction between AL and BNP has become escalated. However, we, the BNP have been arguing over the mechanism for conducting the 2014 elections which started approximately two (2) to three (3) years before the polls.
As a [Party Position 1] of the [Region 1] regional BNP I was busy organising gatherings and meetings criticising the abolishment of the caretaker system and tried to reintroduce the caretaker system before the 2014 elections.
After AL abolished the caretaker system, we received constant pressure from our national office through our Mahanagar (divisional) and Zila (district) offices to promote our political beliefs and gain more supporters through gatherings, meetings and visiting individuals in the regional area. I used to organise and attend at least two (2) to three (3) gatherings or meeting every week.
One of the tactics that we, the BNP deployed was the instigation of `hartals' which are general strikes and demonstrations. This civil disobedience often caused the closure of businesses, schools and transportation. Our supporters had become frustrated and upset with the current ruling government, the AL. Our gatherings and meeting were often dispersed or broken up by force Or use of violence. The AL members and their supporters together with the local police attacked our participants using various weapons like steel bars, long swords, daggers, hockey sticks or by throwing rocks. The tension between the BNP and AL intensified as a result of those actions and often violent clashes.
I was a key member responsible for organising a huge gathering in August / September 2013 in the [Region 1]. We tried to increase the number of people; we usually had approximately 300 people gathered to support us. We continued to gather three (3) to four (4) times a week by 2013. I was not only the organiser but also one of the main speakers at these gatherings.
Despite our efforts to re-introduce the caretaker system, AL called for national election on 5 January 2014 and our parliamentary seats were taken by AL members. BNP and other alliances boycotted the vote and we continued to voice our opinion to criticise AL's unfair and unjust conduct.
Please refer to the enclosed photos which show some of my activities as a key member of the BNP.
During this political turmoil and crisis between 2008 and onwards, many of the BNP's key personnel were persecuted. Some of them were caught and jailed. Some of them had to go into hiding.
I was attacked and almost killed [in] August 2010. I was in the [Region 1] regional office talking with my subordinates; there were five (5) or six (6) junior leaders and supporters there with me. I was the most senior person among the people. I remember that we were discussing how to organise an upcoming public gathering and our future steps against the AL. Suddenly, several AL leaders and members burst into our office. [Mr C], the organising secretary of AL's [regional] office was one of the perpetrators. [Mr D], the press secretary of AL's [office] and a man called [name] were also with [Mr C]. They were all armed; some had steel bars, some had long swords concealed behind their backs, and others had knives. Some of us somehow managed to escape. The rest of us including me were caught and harmed. I sustained the most injuries. I was knocked conscious. The last thing that I can remember is that we were attacked by members of the AL who broke into our office, including [Mr C]. When I woke up, I was in the hospital. I sustained severe cuts on my chest and left leg. I had to stay in the hospital for a week. Please refer to the enclosed letter from [a named doctor] in this regard.
I obtained the above mentioned letter from [the named doctor] by contacting [the health centre] after deciding to apply for this protection visa in Australia. My [Relative B] in Bangladesh has been assisting me to collect some evidential documents for me and emailed the scanned copy.
I cannot submit a police report of this incident because we did not report the incident to the police. The local police support the ruling party, AL, so they do not take any action against the AL for attacking BNP members. As mentioned above, the local police were part of the crowd who attacked BNP members and supporters.
[Mr E], the [Party Position 4] of [our] Zila (district) was also jailed and tortured right before the January 2014 elections. Please refer to the enclosed copy of the poster in this regard., [Mr E] was the [Party Position 1] of the [Region 1] before he was promoted to be the [Party Position 4] of [our] Zila. I am his successor in the [Region 1]. In addition, [Mr E] is my [relative]. [Relationship to Mr E specified.].
The news about [Mr E] had a particularly significant impact on me because of not only the family connection, but more so the fact that I am his successor. [Mr E] and I worked closely together and we shared the same political values and vision. It was at this time that I started fearing for my life and safety.
In January 2015, [Mr F] who is the [office bearer] of the other Upazila in our [our] Zila was caught and jailed. He holds the same position as I for the [specified] Upazila. Please refer to the enclosed copy of the poster in this regard.
[Mr G], the president of BNP [in our district] was also captured and jailed while he was hiding in the capital city, Dhaka.
The above mentioned this news made me believe that my life would not be safe even if I tried to hide in the big cities in Bangladesh. I heard from various colleagues in the BNP that AL has a list of key members of the BNP and their identities. The AL is using this list to target these people. I do not know whether I am on their list and how credible this information is. However, [Mr F] and [Mr G’s] capture made me extremely fearful and the possibility of me being captured and jailed became very real to me and my family.
I now do not know the whereabouts of my colleagues. I managed to talk to our president [Mr B] on the phone from Australia. I asked whether he could write me a letter stating my position in the BNP's [Region 1]. He said he would help me, but he did not want to reveal his whereabouts. Please refer to the enclosed letter from [Mr B] dated [in] June 2015 in this regard. I do not know where any other key members of the BNP's [Region 1] are. I heard that some of them have fled the country.
The harassment towards me has been escalating. People from AL used to come to my [training] centre demanding money and damaging my [equipment] and other property. Now they are coming to find my whereabouts. I know that those people were from AL and their harassment against me was politically motivated because I not only knew their faces but also some of the names of the people who were among the perpetrators. [Three specified people] are a few people that I knew and they were usually among the group of people who come to my training centre. I believe that they are the leaders of [Town 1] ward AL. I know this because we grew up together in the same village, [Town 1].
When those perpetrators came to my [training] centre, they usually used to demand money for no other reason than to intimidate us. When I refused to give them money, they would bash and kick my [equipment] and damage property to further intimidate me, my staff and students. I was sometimes left with no choice but to give them some money, about [amount range] Bangladesh Taka just avoid their further harassment to protect my students. Since 2008, I suffered approximately between 10 and 15 attacks of this kind by AL members and the frequency of the harassment increased near the 2014 elections. I lost many students in my training centre because they were and are fearful that they may be harmed by those people. I used to have more than 30 students per semester. I now have less than 15 students, but they are no longer attending the school regularly because they are too fearful and have been intimidated by the actions of the AL members.
My [training] centre was severely vandalised in September 2013 and March 2014. One of the teachers, [Teacher 1], was physically harmed by AL members. The AL members came to our training centre and demanded to know my whereabouts. I was not there at that time. When [Teacher 1] told them that he did not know where I was at that time, they smashed our [equipment] and physically assaulted him. He was roughed up and shaken by the incident. Fortunately, [Teacher 1] did not sustain any major injuries; however, those kinds of threats and intimidation have been happening often enough to scare our students away.
As stated above, I did not report any of those incidents to the police because it was useless. The police would not take any action against AL. I have enclosed some of the receipts as evidence of repairs and purchase [equipment] after my training centre was damaged.
I cannot return to Bangladesh because I am fearful of being persecuted and even killed should I be forced to go back to Bangladesh for the abovementioned reasons.
I strongly believe that the Bangladeshi authorities cannot save or protect me simply because they condone the harassment and persecution against members of the BNP. They support our perpetrators, AL, and work together with AL to persecute us. Given my prominent position within the BNP, I firmly believe that I face a heightened risk of being singled out and specifically targeted in this regard.
Possibility of Relocation in Bangladesh
As stated above, some members of BNP have been caught and jailed while they were hiding in a big city such Dhaka. I am fearful that I will be targeted for persecution anywhere in Bangladesh. I was forced to move around and could not stay with my family before arriving Australia out of actual fear for my safety and my life.
I have very real and grave fears for my safety should I be forced to go back to Bangladesh. I do not have any right to enter and reside in any other country other than Bangladesh and Australia. Australia is the only country now that can offer me protection.
Settlement / Connections in Australia
Should Australia decide to provide me with a protection visa, I would like to re-establish my life in Australia with the assistance that [Mr A] and my [Relative A] are willing to provide for me. [Mr A] and my [Relative A] have been residing in Australia since 2006 and 2007 respectively and they are now proud Australians. My [Relative A] has been supporting me financially to go through this application process.
I will try to gain employment as quickly as possible, so I can start re-paying [Mr A] and [Relative A] for their assistance and become a productive member of the community in Australia. I would like to apply for a visa for my wife and our son, so we can be re-united in Australia.
I have given up on my political career. I was a very keen member of the BNP. Even the attack against me and the injury that I sustained as a result of the attack in 2010 did not stop me being an active Member of the BNP. However, I now realise that my political activity has not only put my life in danger but the lives of my wife and child. In addition, for the safety of my family and my own safety I have been forced to live away from my family. I am no longer willing to sacrifice my life for my politics. I would like to be a good father to our son and good husband to my wife. I would like to have a safe and happy family life in Australia.
Evidence:

The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and signed [in] July 2015, lodged [later in] July 2015 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·Documents submitted by the applicant including:
oreceipts from [a supplier to his business] (sic);
oBNP flyers;
ophotographs of the applicant;
oletter from [a health centre] dated [June] 2015 and photographs of the applicant’s injuries;
oletter from BNP dated [in] June 2015;
oblank page with [Business 1] letterhead;
oeducational records of the applicant;
ostatutory declaration of the applicant dated [in] July 2015;
·Record of interview with the delegate dated [in] September 2015.
·The protection visa decision record (‘delegate’s decision record’) of [September] 2016;
·The Tribunal Decision Record (‘previous Tribunal’s decision’) of 1 December 2016;
·The Federal Circuit Court of Australia Order (‘FCC Order’) of [August] 2017;
·The review application form which did not include a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Bangladesh, published on 5 July 2016.
Country of reference / receiving country
The applicant claims to be a Bangladeshi national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 29 January 2018 and a continuation of the hearing on 8 February 2018. He was not represented. The hearing was assisted by an interpreter in the Bengali and English languages. The applicant was accompanied by [Mr A] as a support person during the 29 January hearing only.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant said the forms were completed by his representative and he signed them himself.
The Tribunal noted that his claims were set out in his Statutory Declaration dated [in] July 2015. The Tribunal asked the applicant whether he was still familiar with that document and whether he wished to amend or correct anything in his statutory declaration. He stated that he was and that he did not need to change it.
The Tribunal summarised the applicant’s claims as follows:
The applicant claims he was a key regional member of the BNP during the January 2014 elections.
Prior to, and after that election, key members of the BNP have been persecuted, jailed and harassed by AL. Many of them, including the applicant, went into hiding, or fled.
That is why the applicant came to Australia – to protect himself and his family who he has left behind in Bangladesh. The AL are trying to harm or even kill him, though they are not necessarily interested in the rest of his family.
The applicant claims he is the [Party Position 1] of the [Region 1]. He claims he used to attend two to three meetings of the Upazila a week.
The applicant claims he was a key member responsible for organising a huge gathering in August/September 2013. He was also a main speaker.
The applicant claims he was attacked and almost killed [in] August 2010. He claims he could not submit a police report as it was not reported to police. The local police support the ruling party.
[Mr E], his predecessor in his role as [Party Position 1], was jailed and tortured before the January 2014 election. [Mr F], the [Party Position 1] of the adjoining Upazila was caught and jailed.
The applicant had a business called [Business 1]. It employs [Teacher B]. The applicant claims that members of AL would come to his business demanding money and if he refused, they would kick and bash his [equipment]. He claims his [training] centre was severely vandalised in September 2013 and March 2014. One of his staff was physically harmed by AL members. The applicant did not report these incidents to the police.
The Tribunal read to the applicant the summary of his claims as set out in paragraphs 22 to 39 above. The applicant confirmed that the summary of his claims were all accurate, except that to his knowledge [Mr F] had only been harassed by the authorities. He reminded the Tribunal that there was a lot more detail in his statutory declaration.
The applicant confirmed that he arrived in Australia [in] May 2015 as the holder of a [temporary] visa sponsored by his [Relative A]. The Tribunal asked the applicant whether he had intended to return to Bangladesh at the end of his visa. He said he had come here for sightseeing and because his life was in danger in Bangladesh. The applicant said that he had no intention of returning to Bangladesh.
The Tribunal noted its concern with that response reminding the applicant that he had told the previous Tribunal that he did not have the intention of staying here. He had told the previous Tribunal that it was when he came here and saw how good life is, he decided to stay with the co-operation of his [Relative A] and [family]. The previous Tribunal had asked whether he intended to return at the end of 3 months. The applicant stated that he did. When he left Bangladesh, he had the intention to return.
The Tribunal asked the applicant to comment on that inconsistency. He stated that he didn’t say that in the previous hearing, in so many words.
The Tribunal then reminded the applicant of what else he had said to the previous Tribunal. The previous Tribunal asked what would have happened if he had returned to Bangladesh at the end of 3 months. The applicant stated to the previous Tribunal that he would have been killed. He said the situation got worse 1 ½ months after he arrived in Australia. The previous Tribunal indicated that it might have difficulty accepting that the applicant came to Australia with the intention of returning to Bangladesh, in circumstances where he claimed that returning would have led to him being killed. The applicant had stated to the previous Tribunal that the situation became more dangerous. There were lots of protests and the government started to arrest the BNP.
The applicant stated that when he arrived in Australia he had very little idea of what it would be like, but then found there was law and order, and he liked the place. It was then that he decided he would stay. The Tribunal pointed out that he had now contradicted what he had told it a few minutes earlier.
The applicant then said that having seen things in Australia, he then decided that it wasn’t safe for him in Bangladesh. Asked to clarify what he meant, the applicant stated that he always thought Bangladesh was unsafe, but only when he got here did he realise how unsafe it was.
The Tribunal asked whether the applicant was working in Australia. He said that he was, at [a specified employer]. He said he is paying his taxes.
The Tribunal advised the applicant that it would like to discuss his involvement with the BNP. The applicant responded by saying that all members of the BNP are being persecuted. The Tribunal remarked that it was troubled by that generalisation, but in any event was particularly interested in whether, and how, he might be persecuted. The applicant persisted in arguing that all members of the BNP are persecuted.
The Tribunal discussed country information with the applicant as follows[1]:
DFAT assesses that under the current AL Government BNP leaders and JI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.
DFAT assesses that AL, BNP and Jamaat members are subjected to a low level of inter-party violence but notes that, despite the increase in inter-party violence since 2013, the number of casualties remains relatively low in proportion to the size of these parties. Members of the AL’s student and labour wings are subjected to a moderate level of intra-party violence, while members of the BNP and Jamaat student and labour wings face a low risk of intra-party violence.
DFAT understands that the level of intra-party violence has increased with the decline of the BNP. This violence centres on competition over resources rather than ideological differences, and is greatest between rival factions of the AL’s student and labour wings because of the greater stakes involved in control over state resources.
[1] Department of Foreign Affairs and Trade, DFAT Country Report, Bangladesh, 5 July 2016, p15.
The applicant responded by saying that the Bangladesh Government will say what it wants everyone to believe.
The Tribunal asked the applicant when he first became interested in the BNP. He replied that it was when he was [age range] years old, when he was in high school. He said he became quite fond of BNP policies.
The Tribunal asked the applicant what policies of the BNP he was fond of. He replied that he liked that the BNP had an emphasis on education and building bridges and providing clothing and food to people.
The Tribunal asked how these policies differed from those of the Awami League. He replied that he was attracted to the BNP policies. The Tribunal said that it understood that, but wanted to understand what policies of the AL drove him to the BNP over AL – that one who was interested in politics as he claimed to be would have an understanding of the policies of the major parties so that he could make an informed choice as to which party to follow. The applicant replied that AL had more self-interested policies, and were more interested in power.
The Tribunal referred to the response the applicant gave to the delegate in his interview. The Tribunal reminded the applicant that the delegate asked him three times how the BNP program compared to other parties, and he answered each time to the effect that the BNP was a nice party and worked for the good of Bangladesh. The Tribunal pointed out that the delegate found that the applicant had little if any knowledge of the BNP. The Tribunal asked how it was that he did know something of the BNP now, and asked had he since researched what the BNP stood for. The applicant replied that he hadn’t fully understood the question asked by the delegate.
The Tribunal sought to understand the role of the [Party Position 1] that the applicant claimed to be. It asked the applicant what the [Party Position 1] did. The applicant replied that the [Party Position 1] operated at sub-district level. He said he could extend into the district and union level too.
The Tribunal suggested that to better understand that, it needed to understand the structure of the BNP organisation. The Tribunal asked who was at the top. The Tribunal clarified that it was seeking to understand the structure from national level down. It asked was there a Chairperson or President, the person who would be the Prime Minister if the BNP won the election. The applicant understood and said that there was a Chairperson and her name was Mrs Zia. The Tribunal confirmed that was correct. The Tribunal asked who reported to the Chairperson. He replied the [Party Position 1] of the party. The Tribunal confirmed that that wasn’t the applicant. It was not. There were many levels of [Party Position 1]. The Tribunal replied that that was excellent, as it wanted to understand all the levels as it wanted to understand the applicant’s role within the party.
The applicant said there was like a national committee that reported to the [Party Position 1]. Asked how many were on that committee, the applicant replied about 50 – 100 people. Then underneath the Committee, there were departmental or regional councils. He didn’t know how many of them. Underneath the regional councils are District Councils, or Zilas. The applicant said there were 64 or 65 of them. And underneath them were sub-districts, or Upazilas. The applicant thought there were probably about 500 Upazilas. And underneath the Upazilas were unions.
The Tribunal asked the applicant about the organisation within an Upazila. He said there was a president, one general secretary, a publicity officer and a sport secretary. There are other officers. The Tribunal confirmed that he was the [Party Position 1].
The Tribunal referred to the provisions of the Constitution of the BNP[2], noting that the previous Tribunal had also discussed this with the applicant.
(4)Upazila/thana council and upazila/thana executive committee

The upazila or thana council will be formed with the members of all union executive committees under a thana/upazila . This council will elect an upazila/thana executive committee from its members with maximum 101 members including one president, five vice presidents, one general secretary, two joint secretaries, one organizing secretary, two assistant organizing secretaries, one publicity secretary, one office secretary, one assistant office secretary and one treasurer for two years. The zilla committee will approve the upazila or thana committee.
[2] >
The Tribunal noted that this was different to what the applicant had described of one president, one general secretary, a publicity officer and a sport secretary and other officers. The Tribunal also noted how he had replied to the previous Tribunal, wherein he stated that the most senior person was the chairman and that there were then 3 general secretaries.
The Tribunal noted that what he explained today, and what he had told the previous Tribunal was quite different to what the Constitution defines as the structure of a president, 5 vice presidents and 1 general secretary. The Tribunal also reminded the applicant that he told the previous Tribunal that in his branch the 3 vice presidents were deemed to be general secretaries.
Asked to explain these inconsistencies, the applicant stated that both are correct.
The Tribunal again expressed its concerns at these inconsistencies, between the Constitution, what he had told the Tribunal and what he had told the previous Tribunal. The applicant replied that discrepancies are inevitable as there have been changes since he was there. He went on to add that each Upazila has a discretion how to constitute itself, which derives from the Zila level. The Tribunal expressed its concern at this response asking why the party would bother having a constitution if Upazilas could do what they want. The applicant replied they have a discretion. He said that things that are written are always subject to modification by the authorities.
The Tribunal asked the applicant when he joined the BNP. He said it was when he was studying [at school], when he was about [age] years of age. The Tribunal asked him how he joined. He said he went to the BNP office and they filled in the form. He said he then signed it. The Tribunal asked did he have to pay a fee. He said he paid 5 Tks. He then said that he acknowledged that he may have told the previous Tribunal that he paid 10 Tks. He was asked whether there were ongoing fees. He said he paid a monthly fee of 5 Tks. He then said that some members might pay more than that, they might pay 50 or even 100 Tks. The Tribunal asked whether that was like a donation. He said it was, and it depended on how much people could afford and how much they loved the party. Such payments were made especially at functions, where there might not be enough money to pay for the function.
The Tribunal referred again to the BNP Constitution. The Tribunal discussed with the applicant the following provisions from the Constitution of the BNP:[3]
Membership:
5. (a) Qualification for membership
(1)Any Bangladeshi citizen of the age of 18 years or above can be primary member of this party. The aspirants have to declare adherence to the party’s proclamation, constitution and programmes.
(2) The application at schedule 1, form ‘a’ of the constitution will be filled up for primary membership. This form will be available at the party office. No other form will be accepted for membership but when not available, printing of same form will be allowed for application of membership,
(3) If the form is accepted for consideration, identification (Schedule 1, Form ‘kha’) will have to be collected as evidence.
(4) Subscription fee is Tk 5 only for primary membership. Annual subscription fee after getting membership is Tk 5 only. The subscription from the members will be taken by receipt and the receipt will be provided from the party’s central office.
[3] Every upazila or thana office at its own locality will preserve the list of members of the party. The party’s central office in Dhaka will preserve as per rules the total number of members, name of members and their address.
The Tribunal noted the joining fee of 5 Tks, and that an annual payment of 5 Tks was required thereafter. This was inconsistent with what the applicant had told it. The Tribunal noted that the applicant had told the previous Tribunal that he had paid a 10 Tks joining fee and that he paid nothing after that.
The Tribunal also noted what he told the previous Tribunal about completing an application form. He initially said that he just wrote his name on a small piece of paper. Subsequently he said he had completed a form at his location. At this hearing, he told the Tribunal that the people at the BNP office completed the form. The applicant then said he gave the office a small piece of paper with his name on it and they took it and completed the form.
In relation to the inconsistencies about the fees, he restated that he paid a 5 Tks fee on joining and 5Tks per month. He said his answers are the same.
The Tribunal asked again about his role as [Party Position 1]. The Tribunal asked when he was appointed as [Party Position 1]. He said he couldn’t recall. He said that he didn’t want to remember the past. He was in Australia to make a new start.
The Tribunal asked the applicant what he did as [Party Position 1]. He said he used to motivate the leaders at union level. He said he used to tell them how to approach people in their homes. He said he used to tell them about how to approach people in their homes to ask people about their problems and concerns. He said he did publicity. He said he would tell people to do good things for the party and to resolve issues they were having. He said he would present programs and try to attract members.
The Tribunal asked the applicant several times to explain how many meetings he attended. It extracted that he would attend a quarterly meeting, which was an intra-party meeting with all party members of Upazila and union level. He would also attend district meetings and they averaged two to four a year. And there were general meetings and there were two to four of them a year.
The Tribunal referred to the applicant’s statutory declaration that stated that he attended two to three meetings a week, and noted that this was somewhat more than three quarterly meetings a year. He replied that he had many meetings, some for only a very short time to address many issues. He didn’t elaborate further.

The Tribunal asked the applicant about the BNP flag, noting the information the previous Tribunal had discussed with him. The Tribunal noted that the previous Tribunal was of the view that if he was a member of the BNP, he would have been able to accurately describe its flag.
The Tribunal noted the applicant’s description of the flag to the previous Tribunal as being “….like the sun. There is a wheel. The flag is green and white in colour. He did not notice all of it because he would see it so regularly. There is a wheel.” The previous Tribunal asked what the wheel represents. The applicant stated to it that it keeps the party moving forward. There is a branch in the middle. The previous Tribunal asked what the branch represents. The applicant stated to it that the nation is focussed mainly on agriculture.
Then the Tribunal read to the applicant the provisions of the Constitution relating to the flag:
3. The Party Flag:
The upper half of this party’s flag will be red and its lower half will be green. An industrial wheel in black will be in the centre of the flag. A golden sheaf of paddy will rise from within the wheel with a white star on top of the paddy. The green symbolizes the country, red is the symbol of our liberation war, industrial symbolizes development and progress and the white star is the symbol of our national hopes and aspirations.
The Tribunal asked the applicant about the inconsistency between the constitutional description of the flag and his description to the previous Tribunal. He explained that he had been unable to express himself properly to the previous Tribunal. He said that while he looked at the flag a lot, he did not have the opportunity to research it.
The Tribunal asked the applicant whether he had any proof of membership of the BNP, apart from what he had claimed and told the Tribunal. He said he had a letter from the Chairman which he had sent to the department. The Tribunal said it would come to that a bit later.
The Tribunal asked the applicant about the August 2010 assault, which put him in hospital. It asked where the assault took place. The applicant said it occurred at the Party Office. He said that people came in and started bashing him up. He said that he was the key target. The Tribunal asked who they were. He said he didn’t know as they had their faces covered up. The Tribunal asked how he knew that he was the one being targeted. He said that he noticed that as the people came in, they slapped another person out of the way and came straight for him. He stated that he was punched in the chest then became unconscious. When he woke up in hospital he realised that he had sustained a stab wound to his leg.
The Tribunal asked the applicant about what evidence he had of that attack. He referred to a letter that he had given to the department.
The Tribunal referred to the applicant’s statutory declaration where he had stated:
Suddenly, several AL leaders and members burst into our office. [Mr C], the organising secretary of AL's [regional] office was one of the perpetrators. [Mr D], the press secretary of AL's [office] and a man called [name] were also with [Mr C]. They were all armed; some had steel bars, some had long swords concealed behind their backs, and others had knives. Some of us somehow managed to escape. The rest of us including me were caught and harmed. I sustained the most injuries. I was knocked conscious. The last thing that I can remember is that we were attacked by members of the AL who broke into our office, including [Mr C].
The Tribunal noted that his evidence in this hearing appeared to conflict with his statutory declaration as to his knowledge of who the perpetrators were. The Tribunal asked how he might reconcile this difference.
The applicant said that at the time of the assault, he didn’t know who they were, but later he came to know who they were. The Tribunal asked how. He replied that he worked it out from their eyes as he thought about it later.
The Tribunal discussed with the applicant the two letters that he had submitted to the department in support of his claims, the letters the applicant had referred to as being in support of his membership of the BNP, his role as [Party Position 1], and the assault on him by the members of AL.
The Tribunal discussed with the applicant the prevalence of forgery in documentation in Bangladesh. It referred to country information from the Danish Immigration Service:[4]
A well informed diplomatic source (1) stated that anything can be produced by anybody in Bangladesh, including birth certificates, school certificates and passports. The source further explained that corruption is very high and everything is for sale. A well informed diplomatic source (2) similarly stated that in general, Bangladeshi documents have very little weight, except education documents which include photos, document a history, and can be verified.
[4] Danish Immigration Service, ‘Rohingya Refugees in Bangladesh and Thailand - Fact finding mission to Bangladesh and Thailand’, February 2011.
The applicant responded by saying that he wasn’t aware of what sort of forgery goes on. He stressed that his passport was legitimate.
The Tribunal laid the two letters out in front of the applicant. It asked the applicant to note that each letter used the same font, they were identically formatted with a dotted line at the top right hand corner for the date, that the date of the letters had each been inserted by handwriting that was identical to each other, and that the letters were of similar style, with the logo at the top with a solid black line under each. Both letters had been signed and again under the signature the date had been written a second time, and again, each with identical handwriting.
The Tribunal noted its concerns that the two letters appeared to be forgeries. The applicant said that he had asked his brother’s son to secure the letters but didn’t know how he did that. The Tribunal further enunciated its concerns that if it found that the documents are forgeries, then that left no independent evidence of the applicant’s BNP membership and position of [Party Position 1]. Furthermore, it might cause the Tribunal to form the view that the applicant was prepared to submit forged documents in support of his claims, thus causing the Tribunal to have concerns about the genuineness of his claims generally. The applicant responded by saying there is nothing he can do if the Tribunal believes the documents are forgeries. But he said that everything he has told the Tribunal is the truth. And he maintained that the letter from [Mr B] is true.
The Tribunal determined that it was at this stage that it was appropriate to adjourn.
The Tribunal continued on 8 February 2018.
The Tribunal confirmed the applicant’s claim that he has given up on his political career. He confirmed that he had. The Tribunal asked the applicant whether he had engaged in any activities in Australia of a political nature, be they be activities in support of the BNP or otherwise. He said he had not.
The Tribunal noted that since the first hearing last week, there had been a new report from DFAT, dated 2 February 2018. The Tribunal said that it would be prudent to review the country information that has been discussed during the last hearing.
The Tribunal discussed the following country information[5]:
DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see following section) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
In recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions. In 2015, ASK documented 226 instances of AL intra-party violence (resulting in 33 deaths) and nine instances of intra-party violence involving all other parties (no deaths), as opposed to 30 instances in total of inter-party violence (25 of which were between the AL and BNP) resulting in seven deaths. In 2016, ASK documented 88 instances of AL intra-party violence (resulting in 17 deaths) and 44 instances of intra-party violence for all other parties (resulting in five deaths), compared with 18 instances of inter-party violence (13 of which were between the AL and BNP), resulting in four deaths. Similarly, in 2017 ASK documented 150 instances of AL intra-party violence (resulting in 29 deaths) and 92 instances of intra-party violence for all other parties (resulting in nine deaths), compared with 29 instances of inter-party violence (resulting in 11 deaths).
DFAT understands that intra-party violence between AL factions has been the most common form of PMV largely due to the party’s complete control over state institutions in recent times. Competition between rival factions and candidates (including so-called ‘rebels’, who have contested local elections as independents) for lucrative contracts, tenders and appointments to senior party positions, has superseded ideological differences.
[5] DFAT Country Information Report, Bangladesh, DFAT, 2 February 2018, pp 19 - 21
The Tribunal noted that the country information hadn’t noticeably changed the previous report, except to emphasise that most politically motivated violence appeared to be intra-party related, and most particularly within the AL.
The Tribunal asked the applicant how he travelled to Australia in 2015. He said he came by plane. The Tribunal asked the applicant whether he had experienced any difficulties at the airport as he was departing Bangladesh. He said he had not. The Tribunal asked the applicant had he experienced any difficulties in applying for and being granted a passport. He said that apart from an issue with the spelling of his father’s name, he had not.
The Tribunal noted the country information that DFAT suggested “that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of …… travel bans.”
It noted further[6] that:
DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
[6] DFAT Country Information Report, Bangladesh, DFAT, 2 February 2018, page 35
The Tribunal confirmed that the applicant had not been prevented from leaving the country.
The Tribunal also discussed conditions for returnees to Bangladesh[7].
DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.
[7] Ibid, page 36.
The Tribunal referred to the applicant’s claim that in August or September 2013 he had organised a huge gathering in the [Region 1] at which he said he was the main speaker. The Tribunal asked the applicant what he spoke about as the main speaker. The applicant replied that the main issue he spoke about was harassment by the AL towards the BNP. The Tribunal asked if there was anything else. He said he spoke about issues about the election. The Tribunal asked what they were. He said that elections should take place under the caretaker government.
The Tribunal told the applicant that it would like to discuss issues about his business.
The Tribunal asked whether his business was called [Business 1]. He said it was. The Tribunal asked when it was founded. He said in 2004.
The Tribunal asked the applicant why he chose the name [Business 1]. The applicant stated that he chose the name because [name meaning explained].
The Tribunal asked whether his business was related to or had an affiliation with any other organisation in Bangladesh. He said it was his main business. He was involved in it for approximately ten years. It was a standalone business.
The Tribunal noted that the previous Tribunal had put to the applicant that the [Business 1 name variation] is a non-profitable organisation in Bangladesh designed to train people in [subject] in Bengali. The applicant pointed out the differences in the name. The applicant said that profit was not the main purpose of his business – it was to serve the people. The applicant said the two businesses have different registration numbers.
The Tribunal acknowledged that, but asked whether it was unusual that there would be another organisation with a very similar name performing similar services in Bangladesh. The applicant said it was possible that businesses could share a name and objectives, but they would have different registration numbers.
The applicant confirmed that his business employed [Teacher B]. [Teacher B] was employed as a teacher of the students. He also did office work. The Tribunal asked when [Teacher B] started working for him. He couldn’t recall. The Tribunal reminded the applicant that he told the previous Tribunal that [Teacher B] commenced employment in 2013. He was still a student and worked part-time. The Tribunal asked whether this job was [Teacher B’s] first job. The applicant confirmed that it definitely was, as he had asked [Teacher B] that question specifically.
The Tribunal asked the applicant when the [Business 1] business closed. He said five or six months ago. The Tribunal suggested July or August 2017. The applicant confirmed that was correct and that he found out about it over the phone. The Tribunal asked the applicant how he managed to run the business when he was in Australia. He said he employed someone else to run the business for him. The Tribunal asked who that was. He said his wife and [Teacher B]. He said that his wife ran the business from home and didn’t go into the centre.
The Tribunal discussed with the applicant, as the previous Tribunal had, and using the procedure in s.424AA of the Act, that [Teacher B’s] [social media profile] (accessed through a link on the applicant’s [profile] – [Teacher B] was a [social media associate] of the applicant) stated that he is [an executive] of [Business 2]. It also states that [Teacher B] started working in this position [in] July 2011. This information is relevant as it might cause the Tribunal to doubt whether [Teacher B] works for [Business 1], which might in turn cause it to doubt whether [Business 1] actually exists, which might then cause the Tribunal to doubt the applicant’s credibility generally, which would form part of the basis for affirming the decision under review. The Tribunal invited the applicant to comment or respond.
The applicant stated that [Teacher B] was only associated with that other business, and that [Teacher B] was the applicant’s student.
The Tribunal noted that the applicant had provided a number of photos and letters in support of his claims. The Tribunal asked the applicant who has sent the various photos and letters to him. He said it was his [Relative B].
The Tribunal showed the applicant the photograph appearing at folio 8 of the Departmental file, purportedly showing him in [Business 1] with his students on [a date in] December 2012. The Tribunal asked the applicant what the date represented. Was it the date of the photo, or the date it was sent to the applicant. The applicant replied that it was the date he printed the photo off his computer. He said he printed it out and then placed it under the glass that was on top of his desk.
The Tribunal discussed with the applicant the concerns the previous Tribunal had with the date on this photo - that the photograph was posted on his [social media] [in] December 2011. The previous Tribunal was concerned to know why he would need his [Relative B] to send him a photograph which he had available on [social media] in Australia. The applicant responded that he didn’t have a good understanding of [social media] in Australia. The Tribunal reminded the applicant that it understood him to be an IT expert. He replied that he taught [only his subject].
The Tribunal showed the applicant the copy of the page purporting to be the letterhead of [Business 1]. The applicant replied that it was not his letterhead, but his note pad. The Tribunal noted that the logo contained the words “Bangladesh Government approved”. The Tribunal asked why the Government, being AL, would approve anything that he, an official of the BNP, had anything to do with. The applicant replied that it was approved in 2004 when the BNP was in power and he has just continued to use it.
The Tribunal discussed the receipts he had submitted – the ones from [the supplier]. The Tribunal explained that the invoices provided no context for the purchase of the [equipment]. They did not state they were purchases made as a result of an insurance claim or of the business being vandalised. The Tribunal asked the applicant whether he understood that. The applicant reiterated they were invoices to replace the smashed [equipment]. The Tribunal showed the receipts to the applicant. It pointed out that one of them was purportedly numbered 3795 and dated [in] September 2013. The second one, numbered 3797, was dated 3 March 2014 (or 2019 – it is not entirely clear). Assuming the latter is actually dated 2014, then it would appear that [the supplier] had only issued one other receipt during the six month interval between his two invoices. The Tribunal expressed its concerns as to whether the receipts were genuine receipts. The Tribunal explained its concerns a number of times but the applicant claimed not to understand the point the Tribunal was making. The Tribunal reminded the applicant of the country information relating to the prevalence of fraudulent documents in Bangladesh.
The Tribunal then referred to the photo of the cake party. Again it explained that the photo had no context – that it may well have been a photo of his birthday celebration. The applicant stated that they have cake parties to celebrate significant events. The Tribunal accepted that, noting that tradition is similar in Australia, but that that photo, independent of what the applicant said it was, confirmed nothing other than four or five men were eating cake.
The Tribunal referred to the photo captioned as the opening of the [Business 2 name variant] office. The Tribunal asked the applicant what its relevance was. He said it was a social photo and that he was invited to the opening of the [Business 2] office. The Tribunal confirmed that it had nothing to do with the BNP. The applicant said that other party members were invited to it. The Tribunal asked was he trying to say that the photo was evidence of the [Party Position 1] being invited to a social event. He said it was. The Tribunal queried the coincidence that it should be the opening of the office of the same business that [Teacher B] was associated with. The applicant said that was not the case - they were different companies. One was [one name], the other was [a Business 2 name variant]. The Tribunal reminded the applicant that he had in fact referred to the office as that of [Business 2 name] himself earlier. He said he was mistaken. They were separate, unrelated companies.
The Tribunal referred to the photo captioned as the meeting at the party office (Folio 9 in the Department file). The Tribunal again noted that the photo had no context. It noted that there was no BNP signage, colours or flags on the walls or on the desk. The applicant responded that they may have been on the other walls – that they are scared to capture those images in photographs.

The Tribunal referred to the BNP flyers provided by the applicant. The Tribunal noted they contained no reference to the applicant. The applicant claimed that they related to [Mr A]. The Tribunal showed one of them to the applicant and asked him to translate it. The applicant gave a very extensive translation of the flyer – far more detailed than the interpretation provided to the Department as the translated version. The Tribunal asked the applicant what format such banners took. He said they were of a poster size that could be stuck on buildings or delivered as leaflets.
The Tribunal referred to the photos of the injuries. Again, the Tribunal explained that the photos lacked any context. The applicant confirmed they were photos of the injuries he sustained in the party office assault in 2010. The Tribunal asked the applicant why he waited five years after receiving such injuries to leave Bangladesh. That that was a long time to be scared and in fear. The applicant replied that he thought the BNP would be returned to power and that the country would return to normalcy. The Tribunal referred back to what the applicant had told the previous Tribunal in response to a similar question - that he was monitoring how the situation progressed. The applicant stated that he believed his answers were the same.
The Tribunal asked the applicant whether he was ready to call his witnesses. He stated that he did not want to call them. The Tribunal explained that the witnesses were his to call – to assist him to support his claims. He said he did not need to call them. The Tribunal records that at the conclusion of the 29 January hearing it told the applicant that it could call the witnesses during the next hearing, and at the commencement of the continued hearing, the Tribunal invited the applicant to call his witnesses, but he also said at that time that he didn’t need to call them.
The Tribunal then asked the applicant whether there was anything else he wanted to add. The applicant stated that because he was not living in Bangladesh, a lot of damage has been done to his business. Terrorists (whom the Tribunal clarified were AL members) had been to his business and used scare tactics on his students. Student numbers were dropping and now his business was closed. The business was his only means of a living.
The Tribunal queried the claim that the applicant’s wife ran the business in his absence. He said she ran it from home. He said his wife has been threatened but that she doesn’t leave home much. The applicant said he has an income in Australia and sends money home to his wife for his son’s education which is at a private school. He said his wife and son live with his mother. Neither his wife, son nor mother have been harmed by AL, though he says his son has been intimidated at school by AL members. He said he just wants to bring his wife and son to Australia.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has its reservations about the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for himself. The Tribunal has strong reservations about the credibility of the applicant’s claims. The numerous inconsistencies in his own evidence in this hearing, together with the inconsistencies as between the interview with the delegate, the hearing with the previous Tribunal, this hearing and his written claims, and the implausibility of some of his responses to other questions, causes this Tribunal to have no confidence in the integrity of the applicant’s claims. The Tribunal has formed the view that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal noted the process for the making of the application, and specifically noted that he arrived [in] May 2015. He did not apply for a protection visa until [July] 2015.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal notes the delay of nearly three months and finds that this supports the view of the Tribunal that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal was troubled by the inconsistency of the applicant’s evidence as to his intentions when he arrived in Australia and the ultimate implausibility of his explanation for those inconsistencies. When asked did he intend to return to Bangladesh at the expiry of his [temporary] visa, he told the Tribunal initially that he did not intend to return. When reminded of how he told the previous Tribunal that he had always intended to return to Bangladesh, he denied saying that. Then when reminded of the previous Tribunal’s view of the implausibility of that response, that he intended to return notwithstanding that he feared he would be killed and his fuller explanation to the previous Tribunal, that he intended to return until he realised things had changed in Bangladesh in the 6 weeks he had been in Australia, he told this Tribunal that when he arrived in Australia he had little idea of what to expect, then found he liked the place and then decided to stay. When told that he had now contradicted himself, he said it was only being in Australia that made him realise how unsafe Bangladesh was.
The Tribunal does not accept that the applicant was a member of the BNP for the following reasons:
·The applicant had, at best, a very superficial understanding of what the BNP stood for. One would expect that someone claiming to be a [Party Position 1] of the party would have some knowledge of the policies of his own party, and likely some knowledge of the policies of the opposition party. He was asked three times by the delegate how the BNP program compared to others and he replied that it was a nice party and worked for the good of Bangladesh. When asked the same question by the Tribunal, he replied that he was fond of BNP policies. He then said the BNP had an emphasis on education and building bridges. He said he didn’t like the Awami League as they were only interested in power – he could not identify any specific policies that he was against. When asked what he spoke about at a huge gathering that he had organised in August or September 2013 at which he was the main speaker, The Tribunal managed to extract from him that he spoke about harassment by AL, and when further pushed, said that he spoke about the election and that an election should take place. The Tribunal viewed this response as consistent with its view that the applicant had only a very superficial knowledge of the BNP and its policies.
·The applicant provided inconsistent evidence as to the structure of the party organisation. The Tribunal asked the applicant about the structure of his upazila council, of which he claimed to be the [Party Position 1]. He told this Tribunal there was a president, one general secretary, a publicity officer and a sport secretary and other officers. He was reminded that he had told the previous Tribunal that there was a chairman and 3 general secretaries. The Tribunal discussed with the applicant the provisions of the Constitution of the BNP which stated there was to be a president, 5 vice presidents and 1 general secretary of each upazila council. The Tribunal suggested this was quite different to what he had described. The previous Tribunal had noted the same concern and in response to the previous Tribunal, the applicant stated that the 3 vice presidents were deemed general secretaries. Like the previous Tribunal, The Tribunal does not consider this explanation to be plausible. It explained to the applicant that the Constitution sets out a structure for upazila councils, and this differs significantly from the structure described by the applicant on two occasions. The Tribunal would expect that if the applicant was the [Party Position 1] of an upazila council of the BNP, he would know the structure of the executive of that council. The Tribunal did not consider his response that upazilas have a discretion, or that things which are written are always subject to modification to be plausible.
·The applicant provided inconsistent evidence as to the process by which he became a member of the BNP. The Tribunal asked about the procedure to become a member of the party. The applicant stated that he went to the BNP office and they completed the form and he signed it. He said he paid a fee of 5 Tks. Asked if there was an ongoing fee, he said he paid a monthly fee of 5 Tks. The Tribunal reminded the applicant of what he had told the previous Tribunal when asked exactly the same questions. The applicant told the previous Tribunal that he wrote his name on a small piece of paper, and made a one off payment of Tk 10. The Tribunal discussed with him that the Constitution of the BNP required an application in the prescribed form to be completed, together with an initial payment of Tk 5 and subsequent annual payments of Tk 5. When this inconsistency was pointed out to him, he said they were not inconsistent. He said that he had written his name on a piece of paper, given it to the office, they filled out the form, and he signed it. The Tribunal reminded the applicant that he had told the previous Tribunal that the subscription fees were set by the local chairman. The previous Tribunal did not accept that the subscription fees would be set by each local chairman, when the Constitution sets out a prescribed fee with receipts to be issued by head office. Again the applicant said his answers were the same. The Tribunal would expect that if the applicant was a member of the BNP, he would know the actual procedure to become a member.
·The applicant could not recall when he became [Party Position 1] of his upazila. The Tribunal would expect the applicant would remember such a significant date, or even an approximate date, given his apparent pride in the appointment having been made. The Tribunal did not consider his explanation that he didn’t want to remember the past as plausible, given his preparedness to answer so many other questions about his past.
·The applicant provided inconsistent evidence about his role as [Party Position 1]. The applicant was asked several times to explain how many meetings he attended. He finally responded that he attended about three quarterly meetings a year. When it was pointed out to him that he claimed to have attended two to three meetings a week, he stated without elaboration that he had many other meetings, some for only a very short time to address many issues.
·The applicant was unable to address the Tribunal’s concerns about his responses to the previous Tribunal about his apparent lack of knowledge about the BNP flag. The Tribunal reminded the applicant that the previous Tribunal asked the applicant to describe the BNP flag. He told the previous Tribunal that it was green and white in colour. The previous Tribunal noted that the flag in fact contains red, green, black and white. Almost half the flag is red, as is apparent on the BNP letterhead provided by the applicant to the Department. The applicant was unable to accurately describe the meaning of the industrial wheel in the centre of the flag or the golden sheaf of paddy with the white star on the top. The previous Tribunal did not consider it plausible that the applicant saw the flag so regularly that this has caused him not to notice what it looked like. The applicant told this Tribunal that he had been unable to express himself properly to the previous Tribunal. He said that while he looked at the flag a lot, he had never had the opportunity to research it Like the previous Tribunal, this Tribunal would expect if the applicant was a member of the BNP, he would have been able to describe the flag (or logo) of the party. The Tribunal did not accept the applicant’s explanations for not knowing how to describe the flag to the previous Tribunal as plausible.
·The applicant had no independent evidence of his membership of the BNP. The applicant told the Tribunal that he had a letter from the chairman that confirmed he was a member of the BNP. The Tribunal placed no weight on the letter from the BNP dated [in] June 2015. The Tribunal had discussed with the applicant the prevalence of document fraud in Bangladesh. The Tribunal finds this letter to be a forgery. The Tribunal had laid out in front of the applicant this letter together with the letter from the Health [centre]. It had asked the applicant to note that each letter used the same font, they were identically formatted with a dotted line at the top right hand corner for the date, that the date of the letters had each been inserted by handwriting that was identical to each other, and that the letters were of similar style, with the logo at the top with a solid black line under each. Both letters had been signed and again under the signature the date had been written a second time, and again, each with identical handwriting. When confronted with the Tribunal’s concerns, the applicant stated that he didn’t know how his cousin had secured the documents, but that in any event, the letter from [Mr B] was true.
·The applicant had no difficulty leaving Bangladesh at the airport. The Tribunal had discussed with the applicant the latest country information that stated that DFAT was aware that authorities have prevented both senior and ordinary members of the BNP from leaving the country.
The Tribunal accepts that the applicant sustained injuries in 2010. However, it does not accept that the assault was as a result of his involvement in the BNP.
·There is nothing on the face of the medical evidence he provided to link the assault to political activities on his part. As discussed above, the Tribunal laced no weight on the letter from the Health [centre], as it believes the document to be a forgery for the same reason as its finding on the letter from the BNP.
·In evidence, the applicant told the Tribunal his attackers wore masks. In his written claims, he was able to identify who the attackers were. When asked to explain this inconsistency, he provided the implausible explanation that after he thought about it, he worked it out from their eyes.
·If the applicant was assaulted in August 2010, it would not have expected him to wait almost 5 years before attempting to come to Australia. The Tribunal did not find the applicant’s explanation that he waiting to see if the BNP won the election, or his response to the previous Tribunal that he was monitoring how the situation progressed to be plausible, particularly when this waiting and monitoring period extended for almost half a decade. The Tribunal also did not find his explanation that he intended to return to Bangladesh at the time he arrived in Australia to be plausible, if he had previously been assaulted and sustained serious injuries as a result of his involvement with the BNP.
·The Tribunal accepts that photos of his injuries submitted to the department are evidence of injuries sustained, but they have no context. The photos show no connection to the BNP or to how or where the injuries were sustained.
The applicant presented a number of documents in support of his claims. The Tribunal placed no weight on the following documents for the following reasons:
·The BNP flyers. These contain no reference to the applicant. Although the applicant claimed that they related to [Mr A], the applicant has provided no evidence to support this. In any event, as noted, document fraud is prevalent in Bangladesh and the documents cannot be verified. The Tribunal was also concerned at the variation in length between the applicant’s translation of the flyer and the “English translated” version supplied.
·The cake party photograph. There is no appearance of political content in this photo. While the applicant has captioned this photograph as celebrating a cake party in honour of his appointment as BNP [Party Position 1], there is nothing in the photograph itself to suggest a connection to the BNP. Furthermore, the applicant could not, or did not want to, recall the date of his appointment as [Party Position 1].
·[Business 2] Photo. This photograph shows the applicant sitting alongside a speaker in front of a banner. This banner is not in BNP colours, and the caption states that it was taken at the opening ceremony of the [Business 2 name variant] opening ceremony. Again, there is nothing on the face of the photograph to suggest a connection to the BNP.
·Party Meeting photo. This photo had no context. There is nothing to connect it to the BNP. When asked why there was no flag, or BNP colours in the room or on the desk, the applicant gave the implausible explanation that the other walls may have had the colours on them. He also added that they don’t like to broadcast where they are.
·[The named supplier] receipts. These receipts had no context. They did not state they were purchases made as a result of an insurance claim or of the applicant’s business being vandalised. Furthermore, as discussed with the applicant, the Tribunal had the view that the receipts were forgeries, as the numbered receipts were only two numbers apart (3795 and 3797) yet were dated six months apart. The applicant had no explanation for this, let alone a plausible one.

The Tribunal also considers that given the applicant has been prepared to tender forged documents to the Department and to the Tribunal, the Tribunal has further cause to doubt the applicant’s credibility and the genuineness of his claims.
The Tribunal has some doubts about whether the applicant operates a business known as [Business 1]. Those doubts are based on the similarity of the name of the business to the [Business 1 name variant], and the concerns it has about whether [Teacher B] works for [Business 1] (as [Teacher B] has represented on his [social media] that he worked for a company other than that operated by the applicant). Even giving the applicant the benefit of its very significant doubts and accepting that the applicant does operate the [Business 1], the Tribunal is not persuaded that it, its employees, or its operations have been in any way impacted by the BNP or people associated with the BNP. The applicant provided no statements from [Teacher B] or any other employees or students in support of any claims, notwithstanding that the applicant stated that the business only closed six months ago and that [Teacher B] remained employed in the business.
On the issue of witnesses, the Tribunal gave the applicant both notice of his right, and opportunities, to call his witnesses that he advised the Tribunal in his Response to Hearing that he would call. The Tribunal notes that the reason his appeal to the FCC was remitted by consent back to the Tribunal was that he had been denied by the previous Tribunal the opportunity to call witnesses in support of his claims. The applicant rejected all invitations to call his witnesses to this hearing in support of his claims.
The Tribunal had discussed with the applicant conditions for returnees to Bangladesh as failed asylum seekers. As he has not been engaged in political activities outside of Bangladesh since his departure, he is unlikely to face adverse attention whether he returns voluntarily or involuntarily.
The applicant has told the Tribunal, as he told the previous Tribunal, and as was contained in his written claims, that he has given up on his political career and will not be involved in politics in the future.
As the Tribunal has not accepted that the applicant was a BNP member, it follows that it does not accept that the applicant was the subject of adverse interest, or was threatened with harm, or was ever harmed, or that his business was vandalised because of his political opinion. For the reasons set out above, the Tribunal considers that the applicant’s claims to have been involved with the BNP to have been fabricated. The Tribunal accepts the applicant’s evidence that he would not be involved in politics if he returns to Bangladesh. It follows then that the Tribunal finds that if the applicant returns to Bangladesh the risk or chance of him being harmed for reason of his political opinion in the reasonably foreseeable future will be remote.
As the Tribunal has not accepted the applicant’s assault was due to his involvement in the BNP, the Tribunal finds that the risk or chance of him being assaulted in Bangladesh in the reasonably foreseeable future is remote. The applicant has identified no other factors which would provide a motivation for him to be assaulted, and he was not assaulted again between 2010 and 2015, when he departed for Australia.
After considering all the evidence the Tribunal is unable to satisfy itself that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a).
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, including that he may have been assaulted, though not for reason of his involvement in the BNP, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Bangladesh. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
The applicant’s claim to complementary protection is essentially the same claim he made in his application for protection as a refugee. Those claims have failed because the Tribunal did not accept that the applicant was a BNP member, that the applicant was the subject of adverse interest, or was threatened with harm, or was ever harmed, or that his business was vandalised because of his political opinion.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Bangladesh. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 922

28 February 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness