1726538 (Refugee)

[2021] AATA 1032

1726538 (Refugee) [2021] AATA 1032 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726538

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Louise Nicholls

DATE:18 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2021 at 3:25pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – previous application on refugee criteria refused – current application on complementary protection criteria refused and refusal affirmed – remitted on grounds of procedural fairness – party membership and activity – generalised conflicts with members of rival party – land dispute with neighbour who was member of rival party – arrest and mistreatment – charged and convicted in absentia – intimidation of family and attack on home – party activity in Australia but no membership – credibility – vague, implausible and inconsistent evidence – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65, 417, 438, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 19A

CASES
AMA15 v MIBD [2015] FCA 1424
Minister for Immigration and Border Protection v Singh [2016] FCAFC
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
SZGIZ v MIAC (2013) 212 FCR 235

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

1. The applicant claims to be a citizen of Bangladesh and is [Age 1] years of age. He arrived in Australia travelling as a merchant seaman and he abandoned ship in Australia [in] January 2008. At the time he abandoned ship he held a temporary [visa]. The applicant previously applied for protection; however, his first application was refused.

2. On 20 May 2014 the applicant made a further application for a protection visa.

3. The applicant attended an interview with an officer of the Department of Immigration and Border Protection on 7 October 2014 in relation to his current application.

4. On 14 October 2014 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa. The applicant sought review of the delegate’s decision.

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

   Procedural history

6. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal on 17 November 2014.

7. The applicant appeared before the Administrative Appeals Tribunal,[1] differently constituted (Tribunal 1), on 15 June 2016 to give evidence and present arguments. The Tribunal has obtained a transcript of that hearing.

   [1]     On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

8. On 2 August 2016, Tribunal 1 affirmed the delegate’s decision.

9. The applicant appealed to the Federal Circuit Court and on 23 October 2017, by consent, the court quashed the Tribunal’s decision and remitted the application for review to the Tribunal for determination according to law.

10. The Court noted that the Tribunal had denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC, in circumstances where:

    ·A delegate of the Minister had issued a certificate pursuant to s.438(1)(a) of the Migration Act 1958 on 22 September 2014 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal; and

    ·At least some of the documents subject to the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

11. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

12. The applicant appeared before the current Tribunal on 16 January 2020[2] to give further evidence in the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant gave further evidence in relation to his background, his claims for protection, his conduct in Australia and other relevant matters. The applicant was represented in relation to the review by his registered migration agent.

    [2]     The Tribunal has had access to the recording of the hearing.

13. The Tribunal found the applicant’s evidence at times to be vague and lacking in plausible detail. However, it also notes that the applicant has lived in Australia since 2008 and has attended a number of hearings and interviews. He has given his story a number of times and there are some significant divergences. The Tribunal does not consider that minor inconsistencies in various accounts are of great relevance. However, it does consider that he has not given reliable evidence on a number of matters which it has noted and considered later in this decision.

14. As an example of some problems with the reliability of his evidence, he stated at Tribunal 1’s hearing that he had one brother and four sisters but it was pointed out that in his first application for protection he had listed one brother and two sisters. In his most recent application for protection he also stated he had two sisters. The Tribunal considers that, unless there are severe cognitive issues, family composition is a matter on which the applicant would have been able to give clear evidence or some explanation for the significant inconsistency. The inconsistent evidence does not relate to the particular claims for protection but signifies a rather fluid approach to factual matters.

15. The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to the Tribunal, differently constituted, could be considered in the review.

    Material before the Tribunal

16. The applicant provided a number of documents to support his application, including:

    Department File [Number]

    ·Copy of biodata page and pages of the applicant’s Bangladeshi passport issued by the Bangladesh High Commission in Canberra [in] 2011.

    ·Undated statement made by applicant.

    ·Undated letter to Senator Chris Evans, Minister for Immigration (as he was), from [Mr A] [Official 1] Bangladesh Nationalist Party (BNP) Australia.

    ·Representative’s submissions dated 20 May 2014.

    Tribunal file no. 1418735

    ·Representative’s submissions dated 8 June 2016.

    ·Applicant’s statement dated 30 June 2016.

    ·Applicant’s Statutory Declarations made on 9 June 2016 and 5 July 2016.

    ·Undated letter from Letter [Mr B], [Official], BNP [Upazila], Noakhali.

    ·Copy of letter from MP to [Mr C], Bangladesh National Assembly dated 26 December 2013.

    ·Copy of letter from [Mr D], BNP.

    ·Copy of letters from the applicant’s wife, [Ms E] dated 01/01/2015 and 18/12/2014.

    ·Copy of letter from Bangladesh Jatiotabadi Dal.

    ·Copy of letter from [Mr F], BNP dated 27/03/2016.

    ·Copy of letter to Senator Hon. Chris Evans from [Mr A], BNP - Australia, signed [in] June 2015.

    ·Medical Certificate [Medical centre 1], signed by [Dr G], dated 5 May 2016.

    ·Health Care summary sheet, [Medical centre 2] – signed by [Dr H], dated 9 June 2016.

    ·Various photographs (and copies) of the applicant participating in BNP Australia functions.

    ·Various Court documents from Bangladesh relating to criminal charges against the applicant, including warrants for arrest.

    Tribunal File no. 1726538

    ·Statement by [Mr F], [Official 1], BNP Australia, dated 2 January 2020.

    ·Photographs of the applicant participating in BNP activities.

    CONSIDERATION

17. The issue in this case is whether the applicant is entitled to complementary protection.

18. The relevant law is set out in Attachment A.

    How does the Tribunal deal with a further protection visa application made before 28 May 2014?

19. The applicant initially applied for a protection visa on 18 January 2008. His application was refused and his subsequent applications for merits and judicial review were unsuccessful. On 21 May 2014 he applied for a protection visa on the basis that his previous application had only been assessed against the refugee criterion.

20. In the Form B of his application for protection, the applicant advised he had previously applied for a protection visa on 18 January 2008. The applicant’s representative made submissions to the Department on 20 May 2014 in which he acknowledged a prior application for a protection visa which was assessed against the refugee criterion only.

21. The Tribunal finds that the applicant made a protection visa application in January 2008 and his first application was refused. He made a further application for a protection visa on 17 November 2014 and that application is the subject of this review.

22. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person.

23. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[3] That is, it did not prevent a non-citizen who had previously made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.

    [3]     SZGIZ v MIAC (2013) 212 FCR 235 at [38].

24. The Federal Court in AMA15 v MIBD held that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application which has been made on the basis of the complementary protection criterion, to consider against the refugee criterion.[4]

    [4]     AMA15 v MIBD [2015] FCA 1424 at [48].

25. Applying the reasoning in SZGIZ v MIAC and AMA15 v MIBP the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a), and it has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

    What information can be considered on remittal?

26. As noted in paragraph 9 above, the application for review was remitted to the Tribunal for reconsideration according to law on 23 October 2017.

27. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [5] Section 19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [6] Section 19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

28. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[7]

    [7]     MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

29. In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by Tribunal 1.

    Non-disclosure certificate

30. A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s.438 of the Act. The Tribunal notes the matter was remitted on the basis that the existence of a certificate on the Departmental file [Number] was not disclosed to the applicant. Since the matter was remitted to the Tribunal for reconsideration the Department has revoked the certificate. The Tribunal has provided copies of the material covered by the certificate to the applicant except for the names of third parties who were included in a schedule of matters referred to the Minister and were not related to this matter.

31. The Tribunal notes that the material previously covered by the certificate was a submission made to the Minister regarding the applicant’s request for Ministerial intervention under s.417 of the Act.

    Background

32. The applicant is [Age 1] years of age. He was born and lived in Noakali which is in the Chittagong area of Bangladesh. He attended school in his village and finished at the intermediate level. His father and uncles were farmers and grew [crops]. After the applicant finished school he helped on the farm for a few years and then became a seaman where he received training from the shipping company as a [job task]. He claimed he was quite well paid as a seaman. Generally, he would spend periods of time onboard and then return home where he helped with the farm for periods of time.

33. He stated that his father has passed away and his mother is alive and living in his home village in Bangladesh. His brother was previously living and working in [Country 1] but has now returned to live in Bangladesh. The applicant’s brother is married and operates a small [business] as well as being involved in farming.

34. The applicant married in [Year 1] and has one son ([Age 2] years) and two daughters ([Age 3] years and [Age 4] years). His wife and two of his children live in Dhaka in the home of his wife’s sister. His eldest daughter has completed her college studies and is married and living in [Country 2]. He stated he speaks to his family two to four times each day. He stated that the family are supported by his wife’s sister who has moved to [Country 3] and sends money for their support.

35. At Tribunal 1’s hearing the applicant stated that he had one brother and four sisters and his father was deceased. Tribunal 1 pointed out that in his original protection visa application he listed one brother and two sisters. The applicant stated that the agent had misstated his family composition. Tribunal 1 pointed out that in his most recent application he also stated he only had two sisters. The applicant reiterated he had four sisters. He stated that all of his sisters are married and living with their husband’s families in the Noakhali District.

36. The applicant stated that he lived in his home village until the age of [Age 5] and after that he obtained his shipping job and went backwards and forwards between the village and his shipping job after that. He stated he started working in a shipping company from 1984 and then started working for his most recent former employer in 1992.

37. The applicant confirmed that when he was home from the ships, he lived in the family home in Noakhali. He stated he worked for about 13 months on the ship and then would return to the village for around a year sometimes up to 20 months.

38. He last arrived in Australia [in] January 2008.

39. He and has lived in Sydney for the past 13 years. He claimed that apart from a few casual jobs from time to time he has not worked at all. However, he has had Centrelink benefits for some periods. The people he lived with were from Bangladesh and they supported him for reasons of community sentiment. They looked after him for nine to ten years and they paid for all his expenses. He stated there are four to five persons and they all lived together in a share house. The Tribunal put it to him that it was difficult to accept that his housemates paid for his accommodation, food, mobile telephone, public transport and clothes for nine to ten years. He stated he worked occasionally and gave them some money.

40. The applicant then stated he sometimes works on a casual basis. He claimed that he managed to save a little bit to help him with his legal expenses. He also claimed that he has been excused from paying legal costs awarded against him in earlier proceedings.

41. While he has been in Sydney, he has occupied himself by spending time with some people who gave him shelter and food and he has been going to the mosque.

42. He confirmed he had a mobile telephone, used public transport and owned some cooking implements. He also had a [Bank] account. He stated he has not had any trips outside Sydney and does not have a partner in Australia.

    Country of reference

43. The applicant claims he was born in Noakhali, Bangladesh and is a citizen of Bangladesh. He provided a copy of his passport which was issued [in] 2011. He has consistently claimed that he is of Bangladeshi nationality, he spoke Bengali fluently and he was familiar with the geography and culture of Bangladesh.

44. Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Bangladesh and that Bangladesh is the receiving country for the purpose of s.36(2)(aa) of the Act.

    What are the applicant’s claims?

45. The applicant’s claims were set out in the application for protection and in the statement accompanying the application for protection.

46. The applicant discussed his claims for protection with the delegate at an interview on 7 October 2014.

47. The claims for protection were expanded upon in a statutory declaration made on 9 June 2016, an undated statement and a statutory declaration made on 5 July 2016.

48. The applicant’s representative made submissions on matters of fact and law. The submissions contained large numbers of links to various reports and items of country information.

49. The applicant gave oral evidence concerning his claims at the Tribunal hearings held on 15 June 2016 (Tribunal 1) and 16 January 2020.

50. Essentially the applicant claims if he returns to Bangladesh, he faces significant harm from Awami League members and Bangladeshi authorities because of his involvement in the BNP. He claims that due to his political involvement with the BNP in Bangladesh he had been arrested and mistreated on several occasions. He claims that while absent from Bangladesh he has been charged and convicted of criminal offences. He claimed Awami League activists attacked his home. He claims that if he returns to Bangladesh, he fears the Awami League will accuse him of having an affiliation with Jamaat-e-Islami and would like to convict him as a war criminal. He claims he has joined the BNP in Australia and would face harm due to his affiliation with that group. He claims his life will be in danger if he returns to Bangladesh.

    Assessment of claims and evidence

1. The Tribunal accepts that the applicant is [Age 1] years of age and was born and lived in Noakhali in the Chittagong District of Bangladesh, except for lengthy periods of time he was working as a seaman on a number of ships. It accepts his pattern of work involved working as a seaman for 12 to 14 months and then returning to his home village for periods of time where he helped on the family farm.

2. The Tribunal accepts that the applicant is married with three children. His wife and two children live in Bangladesh and his eldest child is married and living in [Country 2].

3. The applicant claimed in his initial statement that he joined the BNP in 1982. The applicant stated that when the BNP was in government between 2001 and 2006 he was involved in political movements and was opposed to the Awami League. He claimed that the Awami League caused trouble for him by asking for ransom payments or threatening him. 

4. He claimed he actively participated in BNP politics including attending processions and meetings and was involved in BNP charitable works and recruiting new members.

5. He claimed he was arrested on several occasions but released without charge. He was also charged when he was absent from Bangladesh and was recently sentenced. He referred to a District Court decision, details of which were provided to the Department. He claimed Awami League activists attacked his home and threatened his family. He heard that two fellow BNP members went missing and the police reported they had been abducted. He suggested the Awami League was responsible.

6. His family had moved from Noakhali to Dhaka to hide and they telephoned him and told him his life was in danger. He has heard senior leaders of the BNP have had to go underground. He has heard that the Awami League is trying to convict the applicant as a war criminal. He also believes that he has been charged with a further case. A warrant has been issued by Bangladeshi Police for vandalism. He claimed if he returns to Bangladesh his life will be in danger.

7. Attached to submissions made on 25 February 2015 were several documents provided to support the applicant’s claims of BNP involvement. One letter stated that he was a supporter of the BNP in Bangladesh, another letter stated he had been a member of the central committee of the BNP from 2002 and another stated he was a dedicated BNP activist. Another letter from the BNP Australia noted that the author had known the applicant for four years as a member of the BNP and another stated the applicant was a member of the BNP in Bangladesh and Australia.

8. In his statutory declaration of 9 June 2016, he repeated the claims he made in his earlier statement. He also stated that he had applied for an Australian protection visa in the past. He has continued to be involved with the BNP in Australia and participated in their programs. Recently he gave a speech on continuing political violence in Bangladesh.

9. Tribunal 1 held a hearing on 15 June 2016. The applicant gave evidence that everything he had stated in his applications and statements was true.

10. He told the Tribunal that he left Bangladesh [in] August 2007 because he was working in a shipping company. His wife and children had told him there was a court case trumped up by the Awami League up against his name and if he went back to Bangladesh he would be arrested and most probably killed. He was on a ship and due to return to Bangladesh when he heard the news so the next time the ship docked, he came on shore in Australia.

11. He was asked what he feared would happen if he returned to Bangladesh. He stated he was a supporter of the BNP and protested against the Awami League in processions and meetings. There were scuffles and he was beaten and if he goes back to Bangladesh the Awami League will have “trumped up” charges against him even though he was not present so he fears he will be arrested and killed.

12. The applicant gave evidence that he was a “co-starter” of the BNP and used to work for the BNP to get contributions as well as printing and distributing material. He also carried out protest rallies and meetings. He claims members and supporters of the BNP are being killed in crossfire incidents and he fears that as there is no rule of law the Awami League will arrange for him to be arrested or killed.

13. The applicant told Tribunal 1 that he was a merchant seaman working in oceangoing vessels as a [job task]. His last ship was the [Name] which was running from [Country 4] to Australia and other ports. He entered Australia in June 2007 and remained for two months and left [in] August 2007. He came back on the ship in September 2007, stayed for another two months and then left again in November 2007. He agreed he was coming back and forth because the ship was loading and unloading cargo. He agreed his most recent arrival in Australia was [in] December 2007.

14. He claimed the last time he was in Bangladesh was sometime in March 2007.

15. The applicant stated that he was a member of the BNP in his Union[8] in Bangladesh and is a sympathiser in Australia but has not put his name down. He claimed that while he had not joined the party he has engaged in meetings and other activities in Australia.

    [8]     Union councils (or union parishads or rural council or Unions) are the smallest rural administrative and local government units in Bangladesh. Khan, Mohammad Mohabbat. “Functioning of Local Government (Union Parishad): Legal and Practical Constraints” (PDF), Democracywatch.

16. The applicant claimed he joined the BNP in Bangladesh in 1982 and was the spokesperson for the party and had the duty of enlisting members, taking donations, printing leaflets, distributing leaflets and party propaganda materials and organising processions and meetings.

17. The applicant stated that he did not have a membership card from the BNP in Bangladesh because it had been 10 years past, but he did have letters from the Australian branch of the BNP. Tribunal 1 pointed out that he had provided several letters from the BNP in Bangladesh. He stated that he had asked the leaders in Bangladesh to send letters and they have done so. He stated his job was to distribute to the poor and needy, to collect donations, enlist supporters, talk to people about the party, give speeches and organise protest rallies and other rallies. When asked to elaborate he said he talked to people about the party and explained what they are doing and then asked them to join the party. He stated they were people mostly known to him and he used to talk to them in the local dialect. He talked to them about their family, general topics and asked them to join and vote for the party because that would help the country.

18. There were other people with him when he did this. Sometimes he was given directions and other times he decided to do it on his own. He stated he gave speeches after studying a little bit about the party and the party profile. When asked about the speeches he claimed he spoke to between 500 to 3,000 people and that at that time there were many BNP supporters. When questioned further about speaking at large gatherings he stated that he had only introduced the speakers and spoke after the meetings.

19. He claimed he attended meetings and processions as a banner and placard holder. In big meetings he helped in arranging chairs, building up the dais and bringing people to attend. When asked whether there were some periods that he was more active he stated that supporters come and go all the time and there may be more activities sometimes and less at other times. The applicant gave evidence that in 2001 the BNP won the national election and at that time he was very active. He was involved in printing party papers, banners, posters and distributing them as well as collecting donations. They were going to the grassroots level and talking to each person. He claimed that he was working in the electorate of [Union council]. When questioned he stated [Union council] was the Union and [Upazila] was the subdivision.

20. Tribunal 1 put it to the applicant that in his first statement he claimed he had joined the BNP in 2002 and had never been involved in politics before then. The applicant said that was not correct and had been misstated. He claimed he had been associated with the BNP since studying in school, however when he was out of the country and working on the ships, he was not active. Tribunal 1 put it to him that he had also made this claim in his submissions to the Minister to intervene in his case and in another statement on 12 May 2010 when he stated his political involvement with the BNP began in 2002. The applicant stated that was not correct and stated that he was under a lot of stress at the time because his family was in financial stress in Bangladesh.

21. Tribunal 1 asked the applicant about his claim that he had been arrested in Bangladesh. The applicant gave evidence that he had been arrested in February 2007 when involved in a procession and he was kept in jail for a period of time. At the date of that hearing he claimed there were trumped up charges against him. He also claimed he had been arrested many times before 2007.

22. When asked why he was arrested in February 2007 and what the charges were, he claimed he was a BNP functionary and that was the only charge. He had to go over to the Awami League and if he did not, he would be put in jail for an indefinite period. When pressed on the nature of the charge he stated it was a murder charge, but he did not kill anyone. He claimed he was charged with murdering an Awami League person in his Union. He stated he did not have a lawyer and did not know where the murder had taken place. He claims he was arrested and then released. When Tribunal 1 expressed some surprise that he had been released, he claimed there was no rule of law and they can do anything that they like. In any event, he claimed the charge was totally false.

23. Tribunal 1 put it to him that at the time he was arrested the caretaker government was in power and both BNP and Awami League people were being arrested. The applicant said he did not know what happened.

24. He claimed he had been threatened many times that he would be killed, and his family and his children would be killed. There was no specific person who made these threats. “They generally come in and threaten you”. Tribunal 1 put it to him that as he lived in a village it was likely that he knew these people. He stated the people may not be living in the village now (2016). He stated that Awami League people in general threatened BNP people in general in their Union. When pressed he stated that he had scuffles with a person known as [Mr I] or [Mr J] but both may not be alive anymore. These people were at the same level in the Awami League as the applicant was in the BNP.

25. Before 2000 he got into scuffles with Awami League people and he once was cut on his [body part] by a chopper. He was not sure who these people were; they were from another Union. At other times there were plenty of fist fights and stick fights going on, but he did not receive any other physical injuries. Tribunal 1 confirmed with the applicant that, except for the injury to his [body part], he did not suffer any other injuries from any other person for any reason.

26. Tribunal 1 put it to the applicant that he had made different and inconsistent claims in the past. He referred to the applicant’s earlier statement that he was involved in a land dispute with a neighbour, [Mr J]. The applicant stated that [Mr J] was an Awami League member and he had mentioned this dispute in his statement. When asked about the knife wound and his earlier claim that he had sustained it in 2004 at the hands of [Mr J] and his family he stated that the date was not right in the earlier statements and in any event [Mr J] was a member of the Awami League.

27. With respect to the land dispute between the applicant and his neighbour, he stated the dispute was unresolved. At the time of Tribunal 1’s hearing his brother was in [Country 1] and the Awami League are waiting until the applicant and his brother come home. He also stated he really did not know what was going on as he was not there. His brother’s wife told him not to return home because they are searching for him. He stated that his brother’s wife told him the disputed land is lying unused at the moment.

28. The applicant stated that he did not leave the ship in [Country 3] or [Country 2] as he did not have the opportunity. He did not leave the ship on his two earlier trips to Australia because his wife only called him and told him about the false charges on his last trip, so this is why he asked for leave and left the ship. He claimed that the later false case was another murder charge but when asked who had been murdered, he stated it was an unknown person.

29. Tribunal 1 questioned the applicant about the court documents and arrest warrants obtained from Bangladesh submitted in the week before the hearing. It noted the cases were spread over a number of years from 2007. He stated his brother got those documents. It was pointed out that there were many charges, but the applicant stated he did not know what he had been charged with.

30. Tribunal 1 expressed some concern that the applicant had no idea what charges had been made against him, even if the charges were false. Tribunal 1 asked the applicant why the documents had only been provided just before the Tribunal hearing and not at the time the second protection visa application was made. He stated that he did not get the whole news of what was happening and when he got the detail, he provided the papers.

31. When questioned about the letters he obtained from BNP members in Bangladesh he could not explain why one of the letters did not have BNP letterhead or why the letters had not mentioned the positions he held in the past. The Tribunal put it to him that country information indicated that it was very easy to obtain false documents in Bangladesh and false documents are often used to support visa applications. The applicant denied he had provided false documents.

32. The applicant stated he has been involved with the BNP in Australia and has been joining their meetings, helping with fundraising and keeping up with developments. When questioned about the 2015 letter from the [Official 1] of the BNP in Australia ([Mr A]) which stated that the [Official 1] had known the applicant for more than four years the applicant stated his 2008 application was supported by [Mr A]. Tribunal 1 also asked the applicant about previous material which indicated that he was a member of the [Organisation]. He stated he was a member of both the BNP and the [Organisation].

33. The applicant stated he had lived in Noakhali the whole time he lived in Bangladesh, other than times when he had worked on the ships. The Tribunal put it to him that in his first application for a protection visa he stated that he lived for some time in [Location] in Dhaka because he had run away from his house in the village. He stated there was some trouble in the village and at that time he was in Dhaka. Tribunal 1 put it to him that in his first application he stated that [Mr J] had attacked him. He stated they were planning to attack him and that is why they left.

34. Tribunal 1 discussed the inconsistencies in statements he had made in his first application for protection and in submissions to the Minister accompanying his request for Ministerial intervention with the material and evidence he had given to the Tribunal in relation to his current application. Tribunal 1 outlined the information, explained its relevance and asked the applicant if he would like further time to address that information. The applicant requested further time to respond to Tribunal 1 in writing.

35. In an undated document (translated on 30 June 2016) provided to Tribunal 1 the applicant stated he had one brother who used to support the BNP and was pressured by the Awami League. His brother went to [Country 1]. He claimed everyone was afraid of Awami League members and all BNP leaders and activists are in hiding. He claimed there was an election in his home union and the Awami League won without the election. He claimed the authorities are listening to them and are influenced by the Awami league.

36. He came to know by phone that Awami League people are looking for him and if he returns home, they will arrest him or he will be killed in a crossfire incident. He does not want to return to Bangladesh.

37. On 5 July 2016 the applicant responded to Tribunal 1’s invitation to comment/respond to adverse information by way of statutory declaration as well as making submissions on other matters.

38. In relation to the issue of court documents he confirmed that the documents and false cases made against him were true and genuine. He stated during that hearing he was accused of attempting to murder by causing previous hurt and the charges under ss.323, 324 of the penal code confirm this. He claimed he could not get the court documents earlier because of the political situation in Bangladesh.

39. He stated the letter from [Mr D] confirms he was a local BNP central committee member. When he arrived in Australia it took him time to familiarise himself with the situation and then he started his involvement with BNP Australia activities.

40. His electoral constituency was [Upazilla], [Union council] at [Noakhali].

41. [Mr J] and his family wanted to take revenge against the applicant and they are still waiting to take revenge.

42. At the Tribunal hearing held on 16 January 2020 the Tribunal explained the reason for the remittal and noted that the non-disclosure certificate which was the subject of the remittal had since been revoked. The Tribunal explained the nature of the documents previously restricted and undertook to send a copy of those documents to his representative. He stated he had won his case in the Federal Court. The Tribunal explained the different nature of judicial review and merits review.

43. The applicant gave evidence that he was last in Bangladesh in 2007. He claimed he belonged to the BNP in Bangladesh and the situation for the BNP is now very bad. He fears being caught in a crossfire incident and he stated they have forcibly taken some land close to his house.

44. He claimed if he returned to Bangladesh, he would be caught by the Awami League people once he arrived at the airport and then would not be allowed to go to his home. He was not able to specifically identify the persons or agencies who would detain him. He claimed his name is on a list of BNP people. When asked how he knew this, he stated people in his village who belonged to the BNP told him not to return because the situation is very bad. The people in his village have been put in gaol, caught in crossfire incidents and some have disappeared.  When asked how he knew this, he claimed other people in the BNP told him about these incidents. He claimed that the “other people” are living in hiding and cannot go to the bazaar.

45. He also stated he will be harmed because he had a dispute with his neighbour over some land close to his home. The Tribunal asked him to provide more detail about this claim and pointed to the vagueness of his evidence on this issue.

46. He stated “they” (presumably his neighbours) eventually took his land next to his house by force and sold the land to people from the Awami League about 12 months before the hearing. The applicant stated that the original land dispute took place some time ago in 2007 and eventually they took the land. He said his brother had returned from [Country] but was busy with farming and was not involved in the dispute. They (his neighbours) took the land and sold it to Awami League people. The Tribunal pointed out the confusing nature of his evidence. He stated the issue goes back a long time and even his brother-in-law tried to resolve it but was not successful.

47. The Tribunal asked him why the dispute would cause him problems, given that the dispute took place in 2007 and land has now been sold. He stated that it was an old dispute, his family are not in the village and they will kill him if he returns. He added that the BNP does not have any voice, he is on a list at the airport and someone will take him from the airport and harm him.

1. He also stated that his name is also associated with the Jamaat-e-Islami because he is a Muslim. The Tribunal pointed out that most people in Bangladesh are Muslims. He agreed that 96% of the population are Muslims but “they” are attacking the BNP and Muslims. He stated there was pressure from foreign countries, Muslims do not have a voice, cannot cast votes and cannot go to the mosque. It also causes conflict with the police.

2. When asked about his involvement in the BNP in Australia he stated that he goes to functions and sometimes he is called over the phone to a meeting and then he attends.

100.   The Tribunal asked the applicant whether he wished to say anything about the evidence he gave at the previous Tribunal hearing in 2016. He stated that he had a representative and he gave all his documents to his representative. The Tribunal referred to the evidence given to Tribunal 1 and whether he had gone through it with his representative and discussed the reasons for the refusal. He stated that he did not really know; his lawyer just told him he was going to fight the case again.

101.   As the applicant did not appear to be able to recall the evidence given to Tribunal 1 the Tribunal, using the transcript of evidence from Tribunal 1’s hearing, summarised the evidence given by the applicant and concerns put to the applicant by Tribunal 1.

102.   After the Tribunal completed its outline summary of the evidence he gave to Tribunal 1, it asked the applicant if he disagreed with the outline of his evidence or whether he wished to correct or comment on that evidence. He stated he had tried to explain his situation.

103.   The Tribunal referred to the latest country report on Bangladesh prepared by the Department of Foreign Affairs (DFAT) which notes that the Awami League won the last election. It also confirmed a continuing high level of political violence in Bangladesh. It concluded that high profile BNP figures in Bangladesh might be at risk of politically motivated harm. The report also confirmed document fraud is still a big problem in Bangladesh and that Bangladeshi documents are not very reliable as evidence.

104.   The Tribunal put it to him that he had been away for a long period of time and asked him why he thought he would be at risk if he went back. He claimed the situation had worsened and the BNP was in bad shape and there is no fair election. He claimed that people want to go to the mosque, they face problems and they cannot raise their voices.

105.   The Tribunal noted the applicant had provided a passport issued in 2011 and he stated he has obtained a more recent passport which he did not bring to the hearing. The Tribunal put it to him that he was willing to approach the Bangladeshi government to get a new passport and did not have problems getting a passport which indicated that he had no problems with Bangladeshi authorities. He responded by explaining he was at risk because he belongs to the BNP in Australia. He claimed the Awami League people in Australia have a list and send the names to Bangladesh. The Tribunal pointed out he had not made this claim before and he stated that is what he has been told.

106.   In his final remarks he asked the Tribunal to arrange visas for his wife, son and daughter for Australia.

107.   Following the hearing the Tribunal provided copies of the documents previously subject to the relevant non-disclosure certificate.

Was the applicant a supporter or member of the BNP in Bangladesh?

108.   The Tribunal notes the applicant has consistently claimed that he supported the BNP in Bangladesh. It also notes his evidence that he was a member of the BNP in Bangladesh.

109.   In his statement and in evidence to Tribunal 1 he claimed he joined the BNP in 1982 but had no membership card. When he was asked by Tribunal 1 about earlier evidence that he joined the BNP in 2002 and made submissions to this effect to the Minister and in an earlier statement in 2010 he stated that was not correct and a misstatement by his representative and he was under a lot of stress. Tribunal 1 put the earlier information to the applicant pursuant to s.424AA of the Act and the applicant was given an opportunity to respond in writing.

110.   In his response he stated that a letter from [Mr D] from Bangladesh confirmed that he was a local BNP central committee member, however, the applicant did not address the significant inconsistency between his evidence that he was involved and a member of the BNP from 1982 with his earlier evidence that he joined in 2002, some 20 years later.

111.   The Tribunal finds that the applicant has not attempted to explain or reconcile this inconsistent evidence other than claiming he was stressed. The Tribunal found his evidence of membership and activism in the BNP in Bangladesh also lacked conviction and he appeared to be somewhat uninterested in the details of these claims.

112.   While the Tribunal accepts the applicant may have supported the BNP in Bangladesh, it does not accept he was an active member from either 1982 or 2002. While it notes the letters provided by the applicant which state he was a member and committed BNP activism in Bangladesh it has also considered country information which was discussed with the applicant at both hearings which indicates that false documents are easily obtained and are prevalent in Bangladesh.

113.   The Tribunal has not placed any weight on the letters as reliable evidence that the applicant was a member or committed activist of the BNP. The Tribunal considers the significant and unexplained inconsistency in the evidence of the applicant regarding the dates he joined the BNP as well as the country information on the prevalence of false documents indicates that the letters are unreliable evidence of his claim that he was a member of the BNP in Bangladesh.

114.   When asked to describe his activities with the BNP he gave a generalised account of various activities such as holding banners, handing out pamphlets and talking to people. The applicant talked, in particular, about the period in 2001 when the BNP won the national elections. The Tribunal accepts these are activities which may be undertaken by local low-profile supporters of BNP candidates for elections. However, the applicant also claimed he had given speeches to thousands of people but when questioned further on this he stated he only introduced the speakers. The Tribunal does not accept that he gave speeches to thousands of people.

115.   The Tribunal accepts that the applicant may have provided some minor assistance to the local candidate in the 2001 election campaign but it does not consider that he was a member, or that he had a significant role in the party or in the 2001 election and it considers that he has exaggerated the extent of his involvement with the BNP in Bangladesh. 

116.   The Tribunal further notes that the applicant spent lengthy periods of time outside Bangladesh once he started working as a seaman from 1982 and, in these circumstances, while he may have supported the BNP from time to time, his occupation and lifestyle were not consistent with a commitment to regular political activities on an ongoing basis in Bangladesh.

Was the applicant arrested and detained in Bangladesh?

117.   The Tribunal does not accept the applicant’s claim he had been arrested and released in Bangladesh several times or that there are, or were, outstanding charges against him.

118.   In his statutory declaration of 9 June 2016, he stated he had been arrested and released in Bangladesh on several occasions but when asked about this at Tribunal hearings he did not give any details and was extremely vague. He referred to arrests during meetings and processions but claimed that he was released without charge.

119.   In his written statement he claimed he had been charged in his absence by the District Court, he referred to a copy of the District Court decision and stated that since the District Court decision he has been under pressure politically and financially. At Tribunal 1’s hearing he also stated he had been arrested in February 2007, he thought the charge was murder but he was later released and then left Bangladesh to resume his seaman occupation later in 2007. Tribunal 1 put it to him that the claimed arrest took place during the time the caretaker government was in power and both BNP and Awami League activists were being arrested. The applicant stated he did not know what happened.

120.   The Tribunal notes that the applicant has also provided copies of English language Bangladeshi court documents which are said to be warrants of arrest, first information reports and charges against the applicant.

121.   There are significant anomalies in the documents. The documents describe incidents in which the applicant was involved, despite being outside Bangladesh at the time of the incidents. Various incidents are said to have occurred in February 2008, December 2008, April 2010 and November 2011 when the applicant was living in Australia. While he acknowledged that some incidents were said to have occurred after he left Bangladesh, the Tribunal does not consider that this explains the anomalies or lead to the conclusion that they are genuine police and court documents.

122.   The Tribunal notes the applicant is named as the first accused in many of these documents and throughout all the documents he is described as an office holder of the Jatiya Party, Bangladesh.

123.   One document refers to an occurrence which took place in December 2008 but the date of forwarding the complaint from the police station to the court is noted as 27 January 2008[9].

[9] First Information Report Police Station Noakhali Tribunal File 1418735 f. 53

124.   One complaint refers to an incident in which the applicant and his brother are accused of serious assault; this incident is said to have taken place on 26 November 2011 when the applicant was outside Bangladesh.

125.   There is no reference to a murder charge in the documents.

126.   The applicant provided these documents in 2016 shortly before Tribunal 1’s hearing and when asked to comment on why it took so long to provide them, he stated he could not get them due to the political situation in Bangladesh.

127.   The Tribunal has not given the copies of Bangladeshi court documents any weight in supporting his claim that he has been charged with offences in Bangladesh or has outstanding charges against him.

128.   He told Tribunal 1 that he only had one outstanding charge against him. Tribunal 1 put it to him that the documents indicated there were a number of different charges and different cases. He told the Tribunal he could not read in English and did not really know. The applicant appears to know little if anything about the charges said to have been made against him or the subject matter of the court documents and appears to have shown little interest in those matters, despite being represented in this review.

129.   As discussed with the applicant, country information indicates that false and fraudulent documents are prevalent in Bangladesh and easy to obtain.[10] The Tribunal notes that the court documents were provided in 2016 just before the applicant attended a hearing with Tribunal 1. It does not accept that the political situation in Bangladesh explained the delay in providing those documents. Furthermore, there were anomalies in those documents which also indicate that the documents are not reliable evidence of the matters purported to be dealt with in those documents or that the applicant is facing false charges.

[10]DFAT, ‘Country Information Report Bangladesh’, (paras 5.39–5.40), 22 August 2019; Bangladesh: Reports of fraudulent documents BGD 105263.E 20 August 2015 Research Directorate IRB of Canada.

130.   For reasons set out above, the Tribunal does not accept that the applicant has been arrested in Bangladesh on several occasions, it does not accept he was charged with murder in 2007 or that he has been charged with an offence, or offences, in his absence and that the charges are outstanding. His oral evidence was vague, confused, lacking in plausible detail and not consistent with the documents he provided.

Was the applicant assaulted or mistreated in Bangladesh because of his association with the BNP?

131.   In his written claims the applicant stated he had been involved in scuffles and had been beaten in Bangladesh. When questioned by Tribunal 1 he claimed that in the past he had been involved in scuffles with a person known as [Mr I] and a person known as [Mr J]. [Mr J] was a neighbour and he and his sons had been involved in a land dispute with the applicant. He claimed they were also members of the Awami League. At Tribunal 1’s hearing the applicant claimed he had at some stage been injured on his [body part] with a chopper. He confirmed that, while he had been involved in earlier fist fights and scuffles, he had not sustained any other injuries.

132.   In the hearing held in 2020 the applicant claimed that he had been involved in a land dispute with a neighbour, [Mr J] in 2007 and the Tribunal accepts that this is possible. However, he stated the disputed land had been sold in about 2019. His brother had been busy so had not been involved in the dispute in the last few years. The applicant’s evidence regarding the dispute and the significance in terms of future harm was evasive and confused. At the hearing he did not appear to be able to discuss the details of the land dispute.

133.   With respect to the impact of the dispute on his safety if he returned to Bangladesh, the Tribunal put it to him that he has been absent from Bangladesh since 2007, his brother has returned to Bangladesh from [Country] and is farming in the local area and does not appear to be experiencing any conflict or threats from [Mr J] or his associates, the applicant’s wife and two of his children are in Dhaka and the disputed land has been sold.

134.   Notwithstanding his claim that [Mr J] and his associates are involved with the Awami League, given the current circumstances, the Tribunal does not accept that there is any continuing dispute over the land. The source of the conflict appears to have dissipated as a result of the sale of the land and the applicant’s absence from Bangladesh for the last 13 years.

135.   The applicant also made generalised claims of fist fights and scuffles with Awami League supporters over the years as a result of his political involvement with the BNP. He referred to marches and processions in his evidence. The most recent report by DFAT notes that:

3.92 Bangladesh is historically prone to high levels of politically motivated violence (PMV). Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party (intraparty violence), supporters of rival parties (inter-party violence), between party supporters and law enforcement agencies, and between issues-based, politically motivated protester groups and law enforcement agencies and/or party auxiliary organisations. Fatalities and serious injuries often result from these clashes. PMV tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.[11]

[11]    DFAT Country Report on Bangladesh 22 August 2019, p 3.92

136.   The Tribunal accepts that in the past the applicant may have been involved in fist fights and scuffles during elections, strikes and processions. However, other than for a claim he had been injured on the [body part] by a chopper, there is no claim that he has been seriously injured as a result of these activities and the Tribunal accepts that this is the extent of his claim of past mistreatment during these events.

Have the applicant’s family been threatened by Awami League activists?

137.   In his written statement and the statutory declaration of 9 June 2016 the applicant claimed that Awami League activists had attacked his home and made threats to kill his wife and children. As a result, his wife and children moved to Dhaka to live with the applicant’s sister-in-law.

138.   The applicant provided two letters from his wife in 2014 and 2015 which state that unknown persons had been threatening and intimidating her son and daughter/s so they moved to Dhaka. She claimed they had been demanding a ransom and the family were concerned about their safety. She asked that she and the children be granted a family visa to join her husband in Australia.

139.   At Tribunal 1’s 2016 hearing the applicant claimed that his mother and his brother’s family were living in the family home in the village and his wife had gone to Dhaka with the children. His brother had gone to [Country 1] due to problems with the Awami League. At the 2020 hearing the applicant stated his brother had returned from [Country 1] and had been engaged in farming and his business for a few years. His brother had not had any problems since his return. There were no further claims made regarding his wife and children at the 2020 hearing.

140.   The evidence is that the applicant’s mother and brother’s family have been living continuously in the family home in the village and appear not to have experienced any problems from the time the applicant left Bangladesh in 2007.

141.   With respect to the claim regarding his wife and children the Tribunal does not accept that some seven years after the applicant left Bangladesh that the applicant’s wife and children would be threatened in the manner claimed. Given that the applicant’s eldest daughter completed tertiary education in Dhaka before she moved to [Country 2] and the two younger children are currently attending school in Dhaka it appears likely that the family have stayed in Dhaka for educational and family reasons.

142.   The Tribunal does not accept that the applicant’s wife and children were threatened by Awami League activists or their house was attacked in 2014/2015. The applicant did not provide any reliable evidence to support these claims.

Has the applicant been accused of being a member of the Jamaat-e-Islami?

143.   The applicant claimed, he fears the Awami League will accuse him of being a member of Jamaat-e-Islami[12] and will have him tried as a war criminal. The applicant has not provided any reliable basis for such claims and the Tribunal does not accept these claims and considers they have been made without any foundation. 

Is the applicant a member and supporter of the BNP in Australia?

[12]   Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi   (northern Bangladesh) and Chittagong, the country’s second-largest city. JI is committed to the creation of an Islamic state with a sharia legal system, and to the removal of ‘un-Islamic’ laws and practices, DFAT Country Report on Bangladesh 22 August 2019.

144.   The applicant has given oral evidence and provided letters and photographs which indicate that he is now a member of the BNP Australia.

145.   In his statutory declaration of 9 June 2016, he claimed he had been involved with the BNP in Australia. He gave oral evidence to Tribunal 1 that he was involved with the BNP in Australia and a sympathiser but not a member. In his statutory declaration of 5 July 2016 following Tribunal 1’s hearing, he explained the evidence he gave at the hearing by stating that it took him some time to familiarise himself with the situation in Australia before he started to get involved with the BNP in Australia.

146.   He provided an undated letter addressed to Senator Chris Evans from [Mr A], who described himself as the then [Official 1] of the BNP Australia. The letter stated the applicant was a member of the BNP and had been known to the author for more than four years as an upstanding member of the BNP. The applicant also provided a handwritten letter from [Mr F] who described himself as the [Official 2] of the BNP Australia. The author states the applicant has been involved in the BNP in Bangladesh and Australia. He referred to a warrant of arrest (2008) and a general diary reference made by the applicant’s wife in 2015. [Mr F] provided a further letter in January 2020 where he stated that he was the [Official 1] of the BNP Australia and that the applicant was a member of the BNP in Australia. He stated he participated in all the programs and maintains close connections with the party.

147.   In January 2020 the applicant provided copies of a number of photographs. The photographs are not clear but appear to show groups of men at a meeting. One of the photographs was said to be a photograph of the applicant giving a speech, however the photograph only showed a person, possibly the applicant, standing in front of a microphone in front of a banner. There was no photograph of an audience, any other persons in the background or any context. The other photographs showed a group of men and were captioned as the applicant standing with BNP leaders in Australia.

148.   When asked at the 2020 hearing about his involvement in the BNP in Australia he stated he went to functions and when telephoned he would attend a meeting. He did not provide any further detail about his activities or role in the organisation.

149.   The Tribunal accepts that the photographs were taken at a BNP function and accepts the applicant attended that BNP function in Sydney. It does not accept that the photograph of the applicant in front of a microphone demonstrates that he was giving a speech. At hearing the applicant showed little interest in the BNP’s activities in Australia and did not provide any plausible detail of his involvement. This is not consistent with his claim that he gave a speech at a BNP function.

150.   The Tribunal accepts that the applicant may be member of the BNP in Australia and has attended a number of functions and meetings as shown in the photographs. However, if he were a committed activist or heavily involved in the party in Australia the Tribunal would have expected that he could have provided far more detailed evidence on those matters. The Tribunal considers his involvement has been minimal. The letters written on his behalf do not outline the length of his membership or the extent of his involvement. The letters are designed to be supportive, but they are overly generalised and provide little reliable evidence of the applicant’s active involvement in the organisation.

151.   The Tribunal finds that the applicant’s involvement with the BNP in Australia has been limited to attending BNP Australia functions and other social occasions.

152.   The applicant claimed in the 2020 hearing that a list of BNP members was sent back to Bangladesh and he would be identified on that list and at risk due to his involvement in the BNP Australia group. He stated people had told him about the list, but he was otherwise unable to give further detail on this claim and there is no country information or other evidence to indicate that these claims are reliable or accurate. The Tribunal does not accept that his name is on a list which has been sent to Bangladeshi authorities or the Awami League. This claim is speculative and without reliable evidentiary foundation.

Does the applicant meet the complementary protection criterion?

153.   The Tribunal has considered whether, on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh. Significant harm means the applicant being arbitrarily deprived of his life or suffering the death penalty or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

154.   The Tribunal has found that the applicant may have been a supporter of the BNP in Bangladesh as well as providing minor assistance to a local candidate in the 2001 election campaign. However, for reasons set out above it does not consider that he had a profile as a regular and committed BNP member, supporter or activist.

155.   For reasons set out earlier in this decision, the Tribunal considers that the applicant is no longer engaged in a land dispute with [Mr J] (and his associates). [Mr J] was said to have been an Awami League connected neighbour. The applicant had little knowledge about the current circumstances of [Mr J] and even speculated he may no longer be alive. If there was a dispute at some time in the past the dispute is historical and for reasons set out earlier the reason for the dispute has now ceased to exist. After 14 years’ absence from Bangladesh, the Tribunal does not consider that if the applicant returned to Bangladesh now or in the foreseeable future, the previous land dispute with [Mr J] would result in the applicant having a profile as a regular and committed BNP member, supporter or activist or for having an anti-Awami League opinion.

156.   In its latest country report, DFAT[13] comments on the current social and political situation in Bangladesh noting that:  

2.4 Bangladesh has achieved impressive levels of economic growth since the 1990s, lifting large numbers of Bangladeshis out of poverty. The country continues to face numerous challenges, however, including growing authoritarianism, extreme political polarisation, an escalation in tensions between Islamists and secularists, marginalisation of religious and ethnic minorities, and increasingly politicised national institutions.

[13]   DFAT Country Report on Bangladesh, 22 August 2019.

157.   With respect to the political system and members and supporters of the two major parties it notes:

3.61 Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.

3.62 The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.

3.63 Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors.

158.   In the current climate DFAT notes[14] that certain persons could face a risk of harm due to their political profiles:

3.70 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 relevant sections) 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.

[14]   DFAT Country Report on Bangladesh, 22 August 2019.

159.   However, DFAT also notes that intra party violence in the Awami League is now far more common that inter party violence between the BNP and the Awami League.[15]

[15]    DFAT Country Report on Bangladesh 22 August 2019, p 3.94.

160.   However, the Tribunal has found that the applicant was not a BNP member, supporter or activist in Bangladesh, and it does not accept that he holds a profile which may put him at risk of significant harm. It does not accept that he has an adverse political profile arising from past experiences or conflict with an Awami League connected person, that is [Mr J].

161.   For reasons set out earlier in this decision, the Tribunal does not accept that there are any outstanding false criminal charges that could motivate government authorities or others to pursue him if he returned to Bangladesh and does not accept that he was arrested or detained as claimed.

162.   The applicant’s brother returned from [Country 1] and is living in the local area of the applicant’s home village and, according to the applicant, is busy with farming and his [business] and has not suffered any harm since his return. The applicant’s wife has lived in Dhaka for many years and his children are attending school in Dhaka. His eldest daughter completed her tertiary education in Dhaka and then married and moved to [Country 2]. The Tribunal does not accept his wife and children were threatened with harm as claimed but have lived in Dhaka for family and educational reasons. His family’s situation supports the Tribunal’s findings that if the applicant returns either to his home village or to Dhaka where his wife and children are living, he will not face a risk of significant harm.

163.   The Tribunal does not accept that the applicant intends to participate actively in politics on his return to Bangladesh.

164.   The Tribunal does not accept that the applicant’s limited and minimal activities with the BNP in Australia will motivate him to become engaged in politics if he returns to Bangladesh. It reaches this conclusion because it considers one of the main reasons he has associated with the BNP in Australia is to strengthen his claims for protection. He admitted in his statutory declaration of 5 July 2016 and at Tribunal 1’s hearing that he did not join the BNP Australia for some time after his arrival because it took time to familiarise himself with the situation in Australia. The Tribunal does not accept this; it considers the main reason he has joined the BNP in Australia is to strengthen his claims for protection but also to socialise with Bangladeshis who may have the same sympathies and the same priorities.

165.   The Tribunal finds no other circumstances to suggest that the applicant will seek to become actively engaged in politics on his return to Bangladesh. His 13 year absence from Bangladesh following his regular lengthy absences while working as a seaman from 1982 means that, even if he were interested (which the Tribunal finds he is not), he lacks the current contacts and local knowledge that would be necessary to gain any kind of political profile or influence.

166.   The Tribunal accepts that the applicant has a political preference for the BNP but does not accept this will motivate him to become involved in political activities in Bangladesh of the nature which would cause him to face significant harm. The Tribunal finds nothing in the country information to suggest that the mere fact of having a political preference for the BNP or being involved in an expatriate BNP organisation gives rise to a real risk of significant harm directed against him by Bangladeshi authorities, members or supporters of the Awami League or [Mr J], his friends and associates.

167.   He also claimed that Muslims in Bangladesh do not have a voice, cannot cast votes and cannot go to the mosque. This claim conflicts with country information in the most recent DFAT report[16] which indicates that:

3.27 Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people. Religious minorities reside throughout the country in small numbers.

3.37 Religion, particularly Islam, is a central part of Bangladeshi culture and identity. Publicly professed atheism is very uncommon. Islamist organisations have consistently used the pejorative label ‘atheist’ Islam in the state, including those advocating for secular values. The government has periodically used the blasphemy laws against such individuals, often following complaints from Islamist organisations. .….

[16] DFAT Country Report on Bangladesh, 22 August 2019.

168.   Considering relevant country information, the Tribunal does not accept that Muslims do not have a voice, cannot cast votes and cannot go to the mosque or face harm for reasons of their religious beliefs. It does not accept that the applicant would face a risk of significant harm because he is a Muslim or wishes to practice his religious beliefs in Bangladesh.

169.   Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

Conclusion

170.   For the reasons given above, the Tribunal has considered the 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).

171.   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

172.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Louise Nicholls
Senior Member

ATTACHMENT A

RELEVANT LAW

173. 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, the applicant 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.

174.   For reasons set out above, the Tribunal has assessed the applicant against the complementary criterion and the relevant law is set out below.

Complementary protection criterion

175.   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 a protection 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 the applicant 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’).

176.   ‘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.

177.   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.

Mandatory considerations

178.   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.