1721061 (Refugee)

1721061 (Refugee) [2022] AATA 3815 (23 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1721061
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Gabrielle Cullen
DATE:23 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 23 August 2022 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – membership and activity in opposition political party – campaign, protest, committee and social media activity – attacks and threats by rival party supporters – credibility – delay in applying for protection – applied after arriving as dependent on wife’s student visa and multiple returns to home country – inconsistent claims and evidence – detailed and accurate knowledge of party history, ideology and activities – activity in Australia otherwise than for purpose of strengthening claim – country information – effective protection measures not available – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36(2)(a), (b)(i), 424AA
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
ESD17 v MIBP [2018] FCA 1716
Ram v MIEA (1995) 57 FCR 565
SZTFI v MIBP (2015) 231 FCR 222
VFAC v MIMIA [2004] FCA 367
VSAI v MIMIA [2004] FCA 1602
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Bangladesh, applied for the visas on 7 October 2016.
The first named applicant (the applicant) claims to fear return from members of the Awami League due to his involvement in the Bangladesh Nationalist Party (BNP) and its associated organisations in both Bangladesh and Australia.
The second named applicant, a citizen of Bangladesh, is the spouse of the first named applicant. While she submitted a Part C form, no claims were made in the application.
The third named applicant was born in Australia on [Date] and is the child of the first and second named applicants. While she submitted a Part C form, no claims were made in her application.
At hearing the applicant indicated the other applicants had no claims in their own right but indicated he feared his daughter, the third named applicant, would be kidnapped on return to Bangladesh.
The applicant arrived in Australia [in] January 2009 as a dependent on his spouse’s Subclass 572 student visa valid to 23 June 2010 and was granted further student visas to 28 February 2017 as a dependent. He applied for the visa to which this decision relates on 7 October 2016. Following his arrival in 2009 he has departed Australia and returned to Bangladesh from [October] 2011 to [November] 2011, [January] 2013 to [March] 2013, [August] 2013 to [September] 2013 and [December] 2015 to [April] 2016.[1]
[1] As per evidence outlined in his application for the visa and evidence provided at hearing
The second named applicant arrived in Australia [in] January 2009 and held student visas to 28 February 2017. She has departed Australia from [January] 2013 to [March] 2013 and [January] 2016 to [March] 2016.
The third named applicant was born in Australia on [Date] and departed Australia with her mother from [January] 2016 to [March] 2016.
On 22 May 2017 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision. The other applicants did not attend the Department interview.
The delegate refused to grant the visas on 18 August 2017 on the basis that the applicant’s involvement with the BNP was not of a sufficiently high profile for him to face a real chance of serious harm or real risk of significant harm. The delegate was also of the view he did not face any of the difficulties he claimed on his return to Bangladesh due to his delay in applying for protection and as he has repeatedly returned to Bangladesh.
The applicants applied for review of the Department decision on 28 January 2019 and attached the decision of the Department.
The applicant appeared before the Tribunal on 15 August 2022 to give evidence and present arguments. The other applicants did not attend. The applicant was assisted with an interpreter in the Bengali and English languages. The applicant’s representative attended the hearing. [Mr A] also gave evidence. As requested by the applicant, the Tribunal attempted to call [Mr B] in Bangladesh on 3 different telephone numbers but he did respond.
The issues considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
Criteria for a protection visa
The relevant criteria are outlined in Attachment A at the end of this decision.
CONSIDERATION OF Claims and evidence
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicants’ protection visa applications dated 7 October 2016, claims made in the applicant’s attached statement and identity documents.
·Oral evidence of the applicant at the Department interview held on 22 May 2017 and the Tribunal hearing held on 15 August 2022.
·The applicant’s statutory declaration dated 8 August 2022.
·Letter dated 29 January 2017 from [Mr B], [Official 2] of the BNP [Thana]. He indicates the applicant was a member of the BNP since 1992 and was a well-known worker. He states the applicant was a very active worker and involved in many activities.
·Letter dated 20 May 2021 signed by [Mr A], [Official 1], and [Mr C], [Official 2] of BNP Australia. They state the applicant was involved with Bangladesh Jatiyatabadi Chhatra Dal[2] (JCD) [Thana], [District] . They state that in 2009 he came to Australia and participated in BNP programs. His current position is [Official 2] of BNP [State 1 branch], Australia.
[2] Student wing of the BNP
·A letter signed [in] November 2018 by [Mr A], [Official 1], BNP Australia, and [Mr C], [Official 2] of BNP Australia. The letter lists members of BNP Australia, including the applicant.
·A letter dated 22 January 2017 from [Mr D], [Official 2] of BNP Australia. The letter states the applicant has been involved with BNP since arriving and has become [Official 1] of the [State 1] branch. [Mr D] writes that the applicant is an active member and participates in all programs and meetings.
·Bengali newspaper articles:
o   English translation of original newspaper article of BNP Australia’s [Function 1]. The article demands the release of former Prime Minister Khaleda Zia. The article states the applicant, who is pictured and named as the [Official 2] of BNP [State 1], [participated in the event]. Other members, including the [Official 2] and [Official 1] of BNP Australia, also attended.
o   English translation of original newspaper article titled ‘[Title]’. The article states a meeting and ceremony was held on 14 August. The chief guest was [Mr E] and it included a discussion meeting and prayer ceremony with the organisation’s president and other members. The applicant is mentioned as having attended the event.
·[Social media] posts of BNP related material:
o   The name, [deleted], [Official 1] BNP.
o   Post in relation to Khaleda Zia’s contributions and that she is serving a sentence for corruption charges that have been fabricated. The post notes the BNP leadership has no strategy for dealing with the fascist Awami government.
o   Post in relation to 719 crore taka that Begum Zia received as a donation from the then Emir of Kuwait. It states that the money was not the money of the people of Bangladesh. It states that (of that amount) 454 crores were spent on the Karnaphuli Bridge and 265 were used on the Bahaddarhat crossing 6 lane road expansion.
o   Post titled “[Title]”. It states that a protest and prayer program was organised on June 12 by BNP Australia.
o   Post of an image with several people. The translation states it is a protest meeting demanding the release of Begum Khaleda Zia and the death threat by Hasina. BNP Australia members were in attendance.
o   Seven BNP letters in Bangla and English translations. All letters contain a list of Members of [a Committee]. The letters are signed by [a named official], National Standing Committee BNP. The letters are dated (in the order they were provided) [date] May 2021, [date] May 2021, [date] May 2021, [date] May 2021, [date] May 2021 and [date] May 2021, and the applicant is named in them.
·Image of a Zoom meeting that took place [in] August 2021; the applicant is seen attending.
·[Social media] likes, comments and shares by the applicant, of BNP leaders’ posts.
·Images of BNP related meetings, protests and gatherings:
o   Zoom meeting dated [September] 2021 with Bangladesh Ministers and BNP Australia leaders, with the applicant seen in attendance.
o   Image of Zoom meeting dated [May] 2021 where the applicant can be [seen].
o   Images of BNP related gatherings including at a hall, and images of protests and rallies, some that appear to be in [City 1]. The applicant can be seen in these images.
·Photo images dated December 2017, September 2015 and February 2018 with the applicant attending numerous BNP organised protests in [State 1] and [City 1].
·Photos of the applicant attending BNP celebrations for [an event] and a photo of the applicant with visiting BNP [MP].
·Submission from the applicant’s representative dated 8 August 2022 including country information as to the difficulties faced by BNP activists in Bangladesh and Australia.
·Department of Foreign Affairs and Trade (DFAT) Country Report: Bangladesh, 22 August 2019.
·Department of Home Affairs – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
Is the applicant credible as to his claims?
The applicant’s claims
In his protection visa application dated 7 October 2016 the applicant claims to fear return as a member and supporter of the BNP and its associated organisation. He claims he will face serious harm including torture and degrading, inhuman and cruel treatment due to his political opinion and activities in Bangladesh and Australia.
The applicant claims that in Bangladesh he was:
·From 1992 to 1994 a supporter then member of the JCD[3] when studying at [College].
·From 1995 to 1999 the Assistant [Official 3] of the JCD, [Thana] branch [District].
·From 1997 to 1998, while studying at [University], a member of the JCD.
·From 1998 to 2000 involved in the BNP youth organisation, the Jatiyatabadi Jubo Dal (JJD) for the District Committee, [Thana].
·In 2005 elected [Official 4] of the JJD District Committee and he served in that position from 2005 to 2009.
[3] BNP student organisation
As to his activities, he claims he would receive instructions from the leaders and help organise seminars, meetings and put up posters. He claims in 1996 and 2001 he supported [Mr G] who won in his area for the BNP, and in 2008 [Mr B] contested on behalf of the BNP from [Thana] and he won the election. He claims he was very close to [Mr G] and helped him in his political activities and election campaigning. He claims he departed Bangladesh in 2009 when the caretaker government came to power on the advice of the BNP leaders. He claims he has continued to be involved in the BNP in Australia.
As to the difficulties he faced he claims the following:
In 2013, I returned to Bangladesh to see my father and I was attacked by the Awami League people when I visited Council Chairman and BNP local [leader]. In 2016, I visited Bangladesh and during my stay in Bangladesh, I faced attacks two times. First time when was on the road, I was attacked by 7 people on last week of February. Second time, Awami league people attacked my home and fired gun shot and my family and I escaped from the attack in early March. My family and I came back to Australia in April 2016. My wife is on a student visa, so we were able to come back. After I come back to Australia, my family has undergone mental depression and stress due the attack. We then decided to look for option, initially we were thinking of applying for permanent residency after my wife’s education. However, the circumstances and the mental depression force me to look for option and then decided to apply for a protection visa.
At the Department interview held on 20 November 2018 the applicant reiterated his claim to fear return on account of his involvement in the BNP in Bangladesh. He consistently outlined in his statement the roles and activities he had undertaken with the BNP and its associated organisations in Australia. He was asked a number of questions about the BNP and why he became involved. He advised that he was attacked by members of the Awami League; once in [Year 4] after a successful political campaign and once in 2013 when he returned to Bangladesh where he was beaten by 5 to 7 people, who he believes were members of the Awami League. He also referred to being shot at while at his home when he returned in 2016. The delegate asked the applicant why he was continually targeted by the Awami League when he had left Bangladesh in 2009 and was only visiting family in Bangladesh temporarily. The applicant answered that he is known in the local area, so members of the Awami League still took an interest in him.
The delegate raised as of concern that he continued to visit Bangladesh after the alleged attack he had suffered in 2013 and the applicant responded that he had to continue visiting Bangladesh because he was the only son in the family and had family obligations. The delegate also raised concerns as to his delay in applying for protection. The applicant responded that he thought things would improve in Bangladesh and that was the reason why there was a delay in his application for protection. He also stated that it was not until March 2016, when he returned to Bangladesh again to visit his mother and unknown men came into his family house shooting at him, that he had realised he needed to apply for protection in Australia.
In a statutory declaration dated 8 August 2022 the applicant reiterates his claim to fear return as an active BNP leader and member. He outlines in detail his BNP leadership role in Australia, including that he was [Official 1] of the [State 1] branch of the BNP and is currently [Official 2] of the BNP [State 1] Branch. In these roles he claims [deleted], discusses the existing political situation and how to build awareness of the current harm it is causing, liaises with Australian BNP leaders regarding the ongoing political situation and communicates with BNP leaders overseas. He notes that as a BNP member holding a significant position he engages in political activities, including meetings, protests and demonstrations organised by BNP Australia. He notes he attended a protest held in September 2015 to call for fair elections in Bangladesh, and attended a protest in February 2018 organised by BNP Australia in front of [Venue 1] and [Venue 2] in [City 1]. He notes that he [took part in] the publicised demonstrations against the visit of the Awami League leader to Australia in 2018. He adds that during the COVID-19 pandemic he attended meetings via Zoom and was involved in political discussions with BNP activists and leaders, attended [an event] organised by BNP Australia, attended revolutionary events organised by BNP Australia and attended the victory day event. He adds that as an active BNP leader he also expresses his political opinion though social media. He attached numerous images of himself participating in events as well as copies of newspaper articles as outlined above.
At the Tribunal hearing held on 15 August 2022, the applicant reiterated his claim to fear return based on his political involvement in the BNP. He consistently outlined his involvement with the BNP, election campaigning and its associated organisations while in Bangladesh prior to his departure in 2009. He was able to provide evidence in detail and consistent with independent information as to the BNP, its ideology and history. He was able to provide detailed evidence as to why he became involved with the BNP while living in Bangladesh. He was able to provide detailed evidence as to his electorate and the BNP members elected to that area and who he helped in their campaigns to become elected.
As to his claims of harm, he added that since his departure in 2016 members of the Awami League have continued to come to his home and ask about him and threatened to burn down the home. He confirmed that he has returned to Bangladesh on the 4 occasions he has departed Australia including from [October] 2011 to [November] 2011, [January] 2013 to [March] 2013, [August] 2013 to [September] 2013 and [December] 2015 to [April] 2016. The Tribunal asked where he lived when he returned to Bangladesh, and he indicated that in 2011 and the first trip in 2013 he spent the whole time with his family in [District]. The applicant, however, gave confusing evidence as to where he lived on his second trip in 2013, particularly when concerns were raised, and where relevant this is outlined below. In 2016 he said he only returned to Dhaka and [Location], which is close to Dhaka, staying with his parents-in-law. The Tribunal raised a number of concerns regarding his return to Bangladesh as undermining his claim he faced any difficulties in Bangladesh and where relevant these are outlined below.
When asked about the difficulties he faced in Bangladesh, he referred to an attack in 2001 while he attended a BNP rally and to being beaten in 2013 and shot at in 2016. The Tribunal raised a number of concerns with his evidence, including inconsistencies with evidence given at the Department interview and where relevant these are outlined below. The Tribunal questioned whether he had faced any of the difficulties he claims on his return to Bangladesh.
The Tribunal asked him about his involvement with the BNP and its associated organisations in Australia. He said he joined the BNP Australia party after he arrived in 2009. He said there are 4 BNP groups and the group he joined in 2009 was [Group 1]. He said he stayed with that group until 2018 and he said that group is called the JJD group and the [Official 2] is [Mr D]. He said prior to 2018 he was [Official 1] of the [State 1] branch and [Mr H] was the [State Official 2] of that group. He said after 2018 he joined a newly formed BNP Australia group with the witness, [Mr A] as [Official 1] and [Mr C] as [Official 2]. He said that since 2018 he has been [Official 2] of the [State 1] branch of the BNP, under the umbrella of the new BNP group. He reiterated evidence in his statutory declaration as to his activities with the BNP in Australia. He outlined the different BNP groups and their leaders. The Tribunal asked him about the images and evidence submitted and he outlined in detail each photo and why he attended or protested as per the image and evidence submitted.

The witness, [Mr A], indicated he was currently [Official 1] of BNP Australia. He confirmed the split with [Group 1]. He confirmed the evidence of the applicant as to his roles within the BNP in Australia, as outlined above, and that the applicant first became involved with the BNP in Australia in 2009. He said he only came to know the applicant following his arrival in Australia but they are from the same area in Bangladesh. He said he returned to Bangladesh about a year ago. He said he is an Australian citizen. The Tribunal questioned how he could return to Bangladesh, considering his role in BNP Australia. He said he behaved in a very quiet manner.
The Tribunal outlined a number of concerns and inconsistencies in the witness’s evidence. It also raised with him a number of concerns via s 424AA, including evidence he had been charged with a domestic violence related offence. He said the charges were dismissed. Where relevant these are outlined below. The Tribunal raised s 5J(6) with him, that is, that any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that they engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. He indicated he is a genuine follower of the BNP and had been for much of his life.
The applicant’s representatives noted that little weight should be placed on the witness’s return to Bangladesh as he is an Australian citizen and he would not be harmed by the Awami League or government in Bangladesh as they would be concerned at the reaction of the Australian government. He referred to the recent DFAT Question and Answer response from November 2021 as to the treatment of BNP members and supporters in Australia, noting that there is a real chance that a person with the applicant’s profile will face serious harm on return. He questioned whether s 5J(6) applied as the applicant had a history of involvement in the BNP in Bangladesh. He also referred to the applicant’s current leadership roles and that he would be considered a future leader on return to Bangladesh.
Assessment of credibility of claims
Having sighted a copy of the applicants’ identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicants are nationals of Bangladesh for the purposes of s 36(2)(a). For the purposes of s 36(2)(aa) the Tribunal accepts that Bangladesh is the receiving country.
This is a difficult case to assess as the applicant’s evidence was of concern and lacking in credibility as to the difficulties he and his family faced in Bangladesh on account of his political activities and involvement in the BNP in Bangladesh and/or Australia. The inconsistencies and concerns with his evidence outlined below lead the Tribunal to find neither the applicant nor his family ever faced the difficulties he claims, including being beaten in 1996, 2001 and 2013, being shot at in 2016, or his family in Bangladesh being threatened since his departure in 2016. These concerns in his evidence were raised by the Tribunal at hearing and relate to the following:
·His inconsistent evidence as to the difficulties he faced as a BNP leader and activist prior to his departure in 2009. At the Department interview he indicated that in 1996, because he was involved in the election campaign for the BNP candidate [Mr G], who became an MP as a result, he was attacked and beaten with a wooden stick after the election while he was on the road. He did not refer to any other incident other than being threatened on the phone from time to time. However, at the Tribunal hearing he said in 2001 he was attacked while at an election rally and he was beaten with wooden sticks. He said this was the only time he was attacked. The Tribunal is of the view that if the applicant was beaten, he would be consistent as to when this occurred, and does not accept his explanation for the inconsistency that he was confused and that as a political supporter they were often attacked.
·His inconsistent evidence as to the claimed attack by Awami League members in 2013. At the Department interview he indicated he was on his way to meet the Chairman of the Union, who is a BNP member, and was in a rickshaw after getting off the bus when 5 to 7 men riding 3 motor bikes attacked him with hockey sticks and sharp knives. He said as well as being beaten, they also tried to slash him with knives but were only able to slash the front side of his shoes before people from the surrounding shops came to assist him. In contrast, at the Tribunal hearing, he said he was walking with his father to the Union Office after being in the bazaar with his father, and whilst they were walking, he was attacked by 6 to 7 men on 3 motorbikes with hockey sticks. When asked if they carried other weapons, he answered in the negative. The Tribunal is of the view that if the applicant was attacked as claimed, he would be consistent as to the details of the attack, particularly whether he was on foot or in a rickshaw when attacked, whether his father was with him or not and where he was coming from prior to the attack. It does not accept his explanation for the inconsistency that he travelled in a rickshaw for part of the way, as at the Department interview, he indicated he was pulled off the rickshaw by the attackers, nor that he did not want to mention his father as he wanted to focus on himself and not involve his father.
·His inconsistent evidence as to the claimed attack by Awami League members in 2016. At the Department interview he said that in early March 2016, some men rang the bell at the family home in [District], and his mother answered as they said they were friends. He said his mother opened the door and he saw them through the sliding door to the kitchen, recognised them as Awami League people and then they shot at him, but he was able to run away very quickly. In contrast, at the Tribunal hearing he indicated that his wife answered the door to what she thought were friends, 6 or 7 people entered and asked for the applicant and then she showed them to the front room. He said one of them tried to enter further, they pushed his wife, there was a shout and then a gun went off. He said he was in a room inside, 2 rooms across from where they were sitting, and when he heard the shots he fled. He said he is not sure whether they pointed the gun at his wife or the wall. The Tribunal is of the view that if the applicant faced the difficulties he claims, he would be consistent as to the details of this incident, particularly as it is this incident that he claims led him to apply for protection in Australia. The Tribunal does not accept his explanation that his mother was there as well and there are sliding doors in his home.
·Despite claiming at the Tribunal hearing that after he departed Bangladesh in 2016, the Awami League visited his family home in [District] on a number of occasions asking for his whereabouts and threatening to burn the house down, he did not refer to these claims at the Department interview. This is despite being asked whether he had anything to add and being given a break to consult with his representative.
·The claims he has made regarding the difficulties he faced in Bangladesh are undermined by the fact that he continued to live there after the attacks and returned to Bangladesh and his home area. In particular, as raised with him via s 424AA, the Tribunal is concerned about his decision to stay at his home in [District] after the attack in February 2013 until his departure [in] March 2013, his return to Bangladesh and to [District] on his second visit to Bangladesh from [August] 2013 to [September] 2013 and from [December] 2015 to [April] 2016, and his decision to stay in Bangladesh for some time after the March 2016 attack. In response to these concerns being raised, he said he is the only son, and his father was unwell. However, the Tribunal does not accept that if he had faced the difficulties he claims, he would have returned to his home area, or Bangladesh.
Given the concerns outlined above, the Tribunal was initially concerned as to whether the applicant is a credible witness and was ever involved in the JCD, JJD and BNP politics in Bangladesh in the manner claimed and was genuine in his involvement in Australia.
However, the applicant: gave consistent evidence at both the Department interview and the Tribunal hearing as to his political roles with the BNP, JCD and JJD in Bangladesh; had a detailed understanding of the BNP and its ideology, as well as of BNP politics in Bangladesh, including at recent elections, and of BNP politics in his local area, consistent with independent information; gave internally consistent evidence and consistent evidence with that of the witness as to his role and involvement with the BNP and its associated organisations in Australia; provided numerous images of his involvement with BNP politics in Australia; and had detailed knowledge of the BNP generally and the various organisations in Australia. As a result, the Tribunal accepts the following:
·From 1992 to 1994 he was a supporter then member of the JCD when studying at [College].
·From 1995 to 1999 he was Assistant [Official 3] of the JCD, [Thana] branch.
·From 1997 to 1998, while studying at [University], he was a member of the JCD.
·From 1998 to 2000 he was involved in the BNP youth organisation, the JJD for the District Committee, [Thana].
·In 2005 he was elected [Official 4] of the JJD District Committee and served in that position from 2005 to 2009.
·In 1996 and 2001 he supported and was actively involved in [Mr G]’s successful election campaigns for the BNP in his home area.
·In 2008 he supported and was actively involved in [Mr B]’s successful election campaign for the BNP in his area.
·He has been involved in BNP Australia since his arrival in 2009, as a member and as [Official 1] of the [State 1] branch, to 2018.
·From 2018 he joined a newly formed BNP Australia group with the witness, [Mr A] as [Official 1] and [Mr C] as [Official 2]. Since that time, he has been [Official 2] of the [State 1] branch of the BNP, under the umbrella of the new BNP group.
·In his role he invites people to meetings, convenes meetings, hires event venues, celebrates BNP days at meetings, discusses the existing political situation and how to build awareness of the current harm it is causing, liaises with Australian BNP leaders regarding the ongoing political situation and communicates with BNP leaders overseas. He also engages in political activities, including meetings, protests and demonstrations organised by BNP Australia, including attending a protest held in September 2015 to call for fair elections in Bangladesh, and attending a protest in February 2018 organised by BNP Australia in front of [Venue 1] and [Venue 2] in [City 1] against the visit of the Awami League leader to Australia.
Therefore, while the Tribunal has concerns as to aspects of the applicant’s claims as to the difficulties he faced in Bangladesh, it accepts he is a genuine supporter of the BNP, as claimed, in both Bangladesh and in Australia.
As a consequence, the Tribunal finds the applicant is genuine in his political belief of being opposed to the government and to being an activist, supporter and leader in the BNP in the past in Bangladesh and, since living in Australia, with BNP Australia and its associated organisations. It accepts his evidence that if he were return to Bangladesh he will express his political opinion by being involved with the BNP, being an activist and protesting, which the Tribunal accepts he has done in the past, or that he would be prevented from doing so due to a fear of harm.
Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?
Having accepted that the applicant is genuine as to his political belief opposing the current government of Bangladesh, that he was involved in the JJD and JCD in his local area, and that he was active in the past and has been active in BNP politics in Australia, holding leadership roles, the Tribunal has considered whether there is a real chance that the applicant will suffer serious harm on his return.
Under s 5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA.
In determining whether a person has a ‘well-founded fear of persecution’, s 5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. On the basis of his evidence, the Tribunal accepts that the applicant has a genuine fear of being persecuted in Bangladesh because of his political opinion, that is, being opposed to the government of Bangladesh and the Awami League. Further, the Tribunal finds that his conduct in Australia, joining the BNP Australia and JJD, and protesting and attending meetings was engaged in otherwise than for the purpose of strengthening his claim to be a refugee as he was involved in politics and protesting against the Awami League prior to his departure for Australia. Therefore, that conduct has not been disregarded: s 5J(6). The Tribunal finds that the applicant does have the subjective fear of being harmed for reasons of his political opinion as contemplated in s 5J(1)(a) of the Act.
Further, s 5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[4] Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s 5J(1)(a) must be the essential and significant reason for the persecution; it must involve serious harm and must involve systematic and discriminatory conduct.
[4] Chan Yee Kin v MIEA (1989) 169 CLR 379
As to the treatment of BNP supporters and activists in Bangladesh, despite its continued political dominance, the ruling Awami League government and its supporters have continued to suppress critics and BNP leaders and activists.[5] The evidence indicates that violence intensifies around periods of heightened political tension. Most AL-BNP violence occurs during periods of heightened political unrest such as elections, strikes, blockades[6] and local-level elections.[7]
[5] ‘World Report 2020 Events of 2019: Bangladesh’, Human Rights Watch, 14 January 2020 available at 20200424153542
[6] ‘Bangladesh - Country Information Request CI161130110919945 -Political Violence’, Department of Foreign Affairs and Trade (Australia), 6 February 2017, CXC9040661299; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, para 3.92, p.29, 20190822132438
[7] ‘Annual Human Rights Report 2016’, Odhikar, 1 January 2017, pp.7–8, CISEDB50AD44; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 2 February 2018, para 3.60, p.20, CIS7B83941169
The evidence also indicates the Awami League uses security forces to target high profile opponents and political activists, using them to restrict the activities of opposition parties and gather information, often through torture of members of opposition political parties.[8] There is evidence of mass arrests of opposition members, which is used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters, including BNP, are not uncommon, and appear to be used as tools of intimidation against political opposition groups.[9] Arrests often occur in the context of demonstrations.[10] In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations. [11] Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections.[12] More than 4,500 BNP members were arrested on ‘trumped-up charges’.[13]
[8] ‘2020 Country Reports on Human Rights Practices: Bangladesh’, US Department of State, 30 March 2021, Sect.1.c, p.5, 20210331145218; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras 3.66, 3.67, p.25, 20190822132438; ‘Human Rights in Asia-Pacific: Review of 2019’, Amnesty International, 29 January 2020, p.13, 20200130115738
[9] ‘Bangladesh: Stop Reprisals Against Victims, Activists’, Human Rights Watch (HRW), 7 April 2022, 20220411160727; ‘UN: Ban Abusive Bangladesh Unit from Peacekeeping’, Human Rights Watch (HRW), 20 January 2022, 20220208111845
[10] ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras 3.80, 3.84, p.27, 20190822132438
[11] ‘Country Reports on Human Rights Practices for 2019 – Bangladesh’, United States Department of State, 11 March 2020, Sect.1.e, p.10, 20200312085617
[12] ‘Human Rights Monitoring Report on Bangladesh – 1–31 October 2018’, Odhikar, 2 November 2018, p.8, CIS7B839411036
[13] ‘Cycle of Fear Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh’, World Organisation Against Torture (OMCT) and Odhikar, 25 July 2019, p.20, 20190911123050; ‘2021 Country Reports on Human Rights Practices: Bangladesh’, US Department of State,12 April 2022, Sect.7a, pp.62–63, 20220413112829
In its most recent 2019 report on Bangladesh published on 22 August 2019, DFAT assessed that, under the current Awami League 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 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. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing. DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the Awami League government may be targeted for criminal charges, especially if they are involved in violent protests.[14]
[14] ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, pp.25–27, 20190822132438
The Crocodiles are Closing in: Everyday Life for a Local BNP leader is the title of a recent 2021 academic paper by David Jackman, which provides a unique examination of the political life of a local BNP Union Prashad Member leader in Dhaka. In it, the BNP member describes the increasing pressure for BNP members over the last decade due to the politicisation of the police and incentives provided to them to arrest members of the BNP. He describes how surveillance of his movements by the police has become relentless. The paper also reveals the complexity of local politics where alliances and rivalries are tangled in unexpected ways. This includes alliances between BNP mayors and Awami League MPs against their intra-party rivals, and greater conflict within parties. However, Jackman notes the challenge now is that the intense politicisation of the police makes it more lucrative for police to undermine these past local cross-party ties, and it is risky for political leaders to attempt to sustain them. For example, the local BNP member interviewed said he would previously socialise with Awami League politicians but, today, he is distant from them. He explained that even his own supporters have to pretend to support the ruling party.[15]
[15] D. Jackman, ‘The Crocodiles are closing in: Everyday Life for a Local BNP Leader’, in A.E Ruud and M. Hasan (eds), Masks of Authoritarianism: Hegemony, Power and Public Life in Bangladesh (eBook), Palgrave MacMillan, 2021, pp. 93–104

Bertelsmann Stiftung reports that the government frequently denies permission to hold assemblies, rallies and demonstrations organised by political parties, civic groups or students, using the excuse of public order and peace, whereas activists for the Awami League party are allowed to do so without permission. It notes the procedures for providing these permissions are opaque and completely under the government’s control.[16] Odhikar has reported that the government and Awami League leaders and activists have continued to obstruct and attack the rallies of the BNP.[17]
[16] ‘BTI 2022 Country Report: Bangladesh’, Bertelsmann Stiftung, February 2022, p.8
[17] ‘Human Rights Report 2021 – Bangladesh’, Odhikar, 31 January 2022, pp.30–31
On the basis of the applicant’s evidence, what the Tribunal accepts of his claims and the independent evidence outlined above, the Tribunal finds that the applicant’s political opinion would be the essential and significant reason for any persecution: s 5J(4)(a). For the purposes of s 5J(4)(b) of the Act, s 5J(5) provides that the following types of harm are in the nature of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; (c) significant physical ill-treatment; (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; and (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The Tribunal accepts that the applicant would suffer in the form of physical harm from the government, Awami League members and police were he to express his political opinion by protesting and being actively involved in BNP politics, which the Tribunal accepts he has done in the past and may do in the future, or may be prevented from doing so due to a fear of harm.
In light of the findings set out above, particularly the fact that the applicant continues to hold a political view about the government, the Tribunal is of the view that there is a real chance that members of the Awami League, security apparatus and/or government will attempt to intimidate, threaten him with harm or harm him if he protests to express his political belief.
In this context, it is no answer to his claims to suggest that he could avoid that persecution by concealing and suppressing his well-founded sense of injustice and grievances with the government. According to the High Court decision in Appellant S395/2002 v Minister for Immigration (S395/2002 v MIMA), the need to act discreetly to avoid the threat of serious harm constitutes persecution. In the S395/2002 v MIMA decision, Justices McHugh and Kirby stated:[18]
In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
[18] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43]
The principle underlying the judgments in S395/2002 v MIMA is that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm.[19] The Federal Court has emphasised that, on the reasoning of the High Court in S395/2002 v MIMA, the harm in question is the threat of persecution, rather than the impact of repressed behaviour.[20]
[19] VFAC v MIMIA [2004] FCA 367 (Weinberg J, 31 March 2004) at [32]
[20] SZTFI v MIBP (2015) 231 FCR 222 at [72]
The principle in S395/2002 v MIMA has been held to continue to apply under the codified refugee provisions, specifically whether an applicant faces a real chance of being persecuted under s 5J(1)(b).[21] The Tribunal notes the provisions of s 5J(3) of the Act, which states that 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 his or her receiving country, specifically excludes as unreasonable any modification that would (amongst others) conflict with a characteristic that is fundamental to the person’s identity or conscience, conceal an innate or immutable characteristic of the person, or require the person to alter his or her sexual orientation or gender identity or to conceal his or her true sexual orientation, gender identity or intersex status. It specifically refers to a person altering his or her political beliefs or concealing his or her true political beliefs.
[21] ESD17 v MIBP [2018] FCA 1716 (Rangiah J, 14 December 2018) at [28]–[29]. See also MIBP v BBS16 [2017] FCAFC 176 (Kenny, Tracey and Griffiths JJ, 10 November 2017) where the Full Federal Court proceeded on the basis that the principle in S395 applied to the codified refugee provisions but did not expressly engage with this question (see, e.g. [82])
The Tribunal finds that, although the applicant may choose to modify his behaviour if he returns to Bangladesh and not express his political opinion by protesting, he would be doing so only to avoid persecution and due to fear, and in doing so, would be required to conceal his political opinion. Section 5J(3) therefore does not prevent the applicant from having a well-founded fear of persecution
On the basis of independent information and the evidence of the applicant, the Tribunal finds that the persecution the applicant fears constitutes serious harm as contemplated by s 5J(5) of the Act.
Pursuant to s 5J(4)(c), to be persecution, the harm the applicant will suffer must involve conduct by the government, police and security apparatus that is systematic, in the sense of being deliberate and premeditated,[22] and discriminatory, in the sense that the persecutor is motivated to harm the applicant personally[23] because of his anti-government political opinion. The Tribunal accepts, based on the independent information, that there is a real chance the government or those working for it will deliberately harm the applicant because of his political belief and the way he expresses it as he did in the past up to 2014. The Tribunal finds that the conduct to which the applicant will be subjected is systematic and discriminatory, essentially and significantly for one of the reasons set out in s 5J(1)(a), and so the Tribunal is satisfied that s 5J(4)(c), and, therefore, all of s 5J(4) of the Act, is met.
[22] See VSAI v MIMIA [2004] FCA 1602
[23] Ram v MIEA (1995) 57 FCR 565 at 568
On the basis of the findings of fact above, the Tribunal is satisfied that the applicant has a real chance of suffering persecution in the foreseeable future: s 5J(1)(b) of the Act.
The Tribunal finds that the real chance of persecution relates to all areas of Bangladesh, meeting s 5J(1)(c), as the government, from whom the applicant fears persecution, maintains control of all of Bangladesh.
As the harm the applicant faces is at the hands of the Bangladeshi government, security and intelligence forces as well as Awami League members, the Tribunal is satisfied that the applicant will be unable to obtain protection by those authorities from the harm he faces. The above information indicates the security forces can be complicit in the government’s oppression of BNP supporters and activists. The Tribunal therefore finds that effective protection measures, as defined in s 5LA of the Act, are not available to the applicant in Bangladesh: s 5J(2).
Therefore, based on all the evidence above, the Tribunal finds the applicant has a well-founded fear of persecution as defined in s 5J of the Act. Therefore, he meets the meaning of ‘refugee’ set out in s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal also accepts that the other applicants are members of the same family unit of the first named applicant, who is a person who satisfies s 36(2)(a). It accepts they satisfy s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the first named applicant.
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Gabrielle Cullen
Member

ATTACHMENT A
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment B.
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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Attachment B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3815

23 August 2022

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