1727246 (Refugee)

[2021] AATA 1843

1727246 (Refugee) [2021] AATA 1843 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727246

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nicole Burns

DATE:23 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 23 April 2021 at 4:18pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – race – Bihari – political opinion – Bangladesh Nationalist Party (BNP) supporter and activist – unofficial position with Jubo Dal youth wing – threatened and assaulted by Awami League supporters – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 10 December 2014 and the delegate refused to grant the visa on 30 October 2017.

3. The applicant appeared before the Tribunal on 9 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.  He attended the hearing.

5. The issue in this case is whether the applicant is owed protection obligations as either a refugee or under Australia’s complementary protection provisions.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVENT LAW

6. 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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’).

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality and relevant background

11. The applicant is a [age]-year-old married man from Dhaka, Bangladesh.  He came to Australia on a [Visitor] visa in November 2014.  His wife and daughter remain in Bangladesh, residing with his parents-in-law in Jessore, southwest Bangladesh.  His mother, [brothers] and [sisters] also presently reside in Bangladesh. 

12. The applicant claims to be a Bangladeshi national and has provided a copy of his Bangladeshi passport to the Department and Tribunal.  The delegate did not indicate any concerns in the decision record about his identity or nationality.  The Tribunal is satisfied the applicant is a national of Bangladesh against which it has assessed his protection claims.

    Claims, evidence and findings about the applicant’s past experiences in Bangladesh

13. At the Department stage, the applicant claimed to fear persecution based on his Bihari ethnicity, as a Bihari community leader, and as a Bangladesh Nationalist Party (BNP) supporter and activist.  He claimed to fear extremist Bengali groups, and Awami League (AL) and/or Jubo League[1] members and supporters.  He has maintained these claims at the review stage, although provided more detail and clarified some earlier mistakes in evidence he had provided to the Department (discussed where relevant below).

    [1] The Awami League’s youth wing

14. The applicant’s initial claims were set out in a signed but undated statutory declaration he provided to the Department in support of the visa application.  In a subsequent statutory declaration provided to the Department dated 22 July 2015[2] – made with the assistance of an Urdu interpreter and migration agent – the applicant explained that there were several mistakes in the earlier statutory declaration (and parts of his application form) attributable to interpreting mistakes and misunderstandings made by his friend who helped him apply.  The applicant tried to explain his issues and then his friend wrote out a statement and completed the relevant forms.  However, his friend did not read the statement back to the applicant, and the applicant only realised the mistakes after he obtained a migration agent and had the statement read back to him in Urdu. For example, inaccuracies about aspects of his family background and history, which was tied to the emergence of modern Bangladesh.  Regarding his alleged involvement with the BNP, the applicant clarified that whilst he supported BNP’s student wing (Jatiotabadi Chatra Dal (JCD)), he was never a leader as erroneously stated in the earlier statutory declaration.  He had a ‘leadership type’ position (as [Position 1] in his local area) but was not a senior leader.  Other mistakes included his time in prison after being arrested around the elections in 1996 (not 1995) along with other BNP supporters being for a month, not a year.

    [2] The copy on the Departmental file is unsigned

15. The applicant also explained that he is suffering from a head injury which affects his memory, which may have affected the information he gave to his friend who helped him apply for protection.

16. Such inconsistencies between the two statutory declarations provided to the Department does raise some credibility concerns.  Nonetheless, the Tribunal notes the applicant’s core claims to have been involved with the BNP in Bangladesh and experienced threats and problems from AL and JL supporters as a result has been consistent from the start.  Having heard the applicant’s oral evidence at hearing which was consistent with his detailed claims set out in his 22 July 2015 statutory declaration and a further statutory declaration[3] he provided to the Tribunal, the Tribunal accepts the mistakes made in the first statutory declaration are attributable to misunderstandings and interpreting issues between the applicant and his friend who helped him apply for protection, as well as possible confusion resulting from the applicant’s head injury and memory loss (which was evident at times at hearing), not due to serious credibility concerns.

    [3] Dated 2 March 2021

17. As noted, on review the applicant provided a further statutory declaration to the Tribunal in which he details his background, claims, addresses specific concerns raised by the delegate, and provides an update about his circumstances (as did the representative in his comprehensive submission provided to the Tribunal).  His oral evidence at hearing was generally consistent with his written claims before the Department and Tribunal, except for the ways noted earlier.  Although at times he struggled to answer some questions at hearing, the Tribunal is satisfied this was likely due to memory problems – possibly due to a head injury sustained in the past (the circumstances of which the applicant was unsure) in Bangladesh – not a deliberate attempt to be evasive or mislead.  He struggled to recall some basic information – such as his daughter’s age – not just in relation to specific events pertinent to his protection claims.  The applicant’s oral evidence about his background, support to the marginalised Bihari community in Bangladesh, and reasons for supporting the BNP – that is, in order to garner support and protection for the Bihari community – (among other things) was spontaneous, coherent and generally consistent with his earlier claims and supported by country information that indicates Bihari often align with the BNP.  Where the applicant was unable to recall an event or incident with any specificity, he indicated as such without trying to embellish his claims, past experiences or profile.  Overall the Tribunal found the applicant a credible witness. 

18. The Tribunal accepts the applicant belongs to the Bihari ethnicity noting his consistent claims in this regard and the provision of a translated ration card document identifying he is part of this group submitted to the Department.  At hearing, he clarified that he lived near the Mirpur camp which housed thousands of Bihari, not actually in it as incorrectly stated in the ration card.  The Tribunal accepts his evidence in this respect.

19. The Tribunal also accepts the applicant supported the Bihari community – specifically residents of Mirpur camp – over the years in Bangladesh in several different ways, including through liaising with local BNP members to provide support and protection, and himself offering material support at times, including financial support.  It accepts he had a role as a Bihari community leader, organiser and advocate for Bihari in Mirpur.  His close proximity to this marginalised community, strong sense of injustice at the way Bihari were often treated by Bengali groups with government support, and the fact he is Bihari himself was why he supported the community over the years, and why he supported the BNP, who he claimed were the only political party in Bangladesh willing to help Bihari: not necessarily out of respect, but to garner votes.  The Tribunal accepts the applicant’s evidence that he was a BNP supporter in the past primarily for this reason.  Country information (including that submitted by the representative) indicates that Bihari have a reputation as being sympathetic to the BNP, and that BNP politicians have sought votes from Bihari.[4]

    [4] International Republican Institute, Bangladesh: Urdu-speaking “Biharis” seek recognition, respect and rights (Report, 2020), p 6, at: >

    The Tribunal notes the delegate did not accept the applicant was a Bihari community leader and/or political activist for several reasons.  This included because whilst the most recent country information report on Bangladesh from DFAT confirms the existence of the BNP student wing (Jatiyatabadi Chatra Dal (JCD)) and that the student wings have presidents and secretary generals, there is no reference to ‘[Position 1]’ positions, which the applicant claimed to have held.  In his written and oral evidence to the Tribunal, the applicant explained that this was not a formal position or title, just one bestowed on him by the BNP in his local area to encourage him to gather votes for them, primarily. He clarified that he held the unofficial title of [Position 1] whilst part of the Jubo Dal (youth wing) at the end of university, not whilst he was part of the JCD as incorrectly stated in his statutory declaration dated July 2015 provided to the Department.

20. The representative argues that DFAT’s statement[5] in the Bangladesh report that the BNP exercises a limited amount of control over auxiliary groups such as the Chatra Dal and Jubo Dal supports the applicant’s contention that he was affiliated with these groups and through them conducted his activities and was appointed ‘[Position 1]’, unofficially, as does the applicant’s evidence that rather than being an official BNP member he was affiliated with these auxiliary groups.  Reference is also made to country information that indicates the Jubo Dal is a separate organisation from the BNP and its executive committee structure is even more informal than the BNP.[6]

    [5] DFAT Country Information Report, Bangladesh, 22 August 2019 at 3.89

    [6] UK Home Office, Country Policy and Information Note, Bangladesh: Political Parties and affiliation, September 2020, 5.5

21. Additionally the representative submitted that until recently the Bihari were not recognised as citizens in Bangladesh and are generally politically disenfranchised; the applicant has not sought to embellish his status or role with the BNP or his community, and has consistently confirmed he has not held an official leadership role; that most Bihari live in shanty towns, and only 5 per cent have formal education.  In this context of poverty, marginalisation, and absence of formal Bihari political structures, the applicant’s role on behalf of Bihari including in his relations with the BNP can be accurately described as a leader and advocate, he submits.  The representative goes on to argue that it is plausible that the applicant as a university‑educated [Discipline 1] graduate, who speaks Urdu and Bengali, from a wealthy family, would play the role of community leader, activist and political intermediary as described.

22. The Tribunal has considered the delegate’s concerns that the applicant embellished his claims to be [Position 1] of a BNP auxiliary organisation in his local area at the visa application stage.  It notes he claimed to be a leader in the initial statutory declaration provided to the Department (purportedly written with the help of his friend) but was more tempered about his role in his second statutory declaration provided to the Department.  In that, and his subsequent written and oral evidence provided to the Department and Tribunal, the applicant has consistently claimed to have held an unofficial title of [Position 1] with one of the BNP’s auxiliary groups in the past in Bangladesh: before the Tribunal he clarified it was with the Jubo Dal.  At hearing, he indicated he was under no illusion as to why he was bestowed such a title by the BNP (albeit unofficial): that is, to motivate him to secure more votes among the Bihari community.  Given the applicant’s claim that the title was unofficial, the fact that DFAT fail to indicate such groups hold [Position 1] positions does not undermine his claims in this regard and the Tribunal does not share the delegate’s concerns in this respect.

23. Taking into account these considerations, the Tribunal accepts the applicant’s core claims about his past experiences and profile in Bangladesh, and related future fears, articulated at hearing and earlier, summarised as follows:

    ·The applicant was born into a reasonably well-off family of Bihari ethnicity in Dhaka where he grew up with his parents and siblings.  His family owned a [business] where he worked (as well as with some other companies) up until around the time he came to Australia in late 2014.  Prior, he had undertaken university studies – to [higher degree] level in [Discipline 1] – at a university in Dhaka.  He is married with one daughter, now aged about [age]: his wife and daughter live with his in‑laws in Jessore, out of Dhaka.

    ·The applicant and his family lived nearby Mirpur camp in Dhaka, which houses thousands of Bihari who up until relatively recently were not considered citizens.  Over the years he helped support Bihari members of the Mirpur camp, as well as within the community, who were marginalised.  His support included liaison between the community and political groups and leaders, speaking out about injustices they faced and providing material support.  The applicant was an active community leader, organiser and advocate for the Bihari in Mirpur when he lived in Bangladesh.

    ·The applicant was a recognised supporter of BNP and its affiliates.  His role included garnering votes, and organising participants in demonstrations (among other things) during university (with the student wing, JCD) and beyond (with Jubo Dal), where he was given an unofficial title of [Position 1].  (He never became a BNP member.)  The main reason he supported the BNP was to help protect the Bihari community, particularly the residents of Mirpur camp. 

    ·The applicant experienced problems due to his support to the Bihari community and BNP in these ways, including being threatened, harassed, and on occasion he was assaulted by AL (and their auxiliaries) members and supporters, including around election time, or during protests (even at the planning stage), to thwart their efforts, often with police cooperation.

    ·In mid-2014 an incident occurred which led to the applicant’s decision to depart Bangladesh.  Specifically, several AL and JL supporters attacked Mirpur camp during a religious festival (when the men from the camp were at the mosque) in an attempt to take over the land.  Property was set on fire and several people were injured and killed.  Along with others, the applicant mobilised men from the mosque to defend their property and persons at the camp.  He was assaulted with a stick.  Afterwards he did not return home or go back to his main workplace, instead staying with friends.  He had a visa to Australia which he used, deciding to protect his life. 

    ·The applicant’s wife and daughter moved out of Dhaka to her parents’ place in Jessore where they continue to reside.

    ·The applicant has heard from his brothers and neighbours in Bangladesh that members or supporters of the AL/JL have continued to look for him in their neighbourhood and elsewhere after he left the country.

24. At hearing, the applicant told the Tribunal if he has to return to Bangladesh, he will feel compelled to support marginalised members of the Bihari community in any way he can, noting that the sense of injustice he feels at their mistreatment prevails.  To do so, he will support the BNP in order to gain their support and protection of the Bihari community, as he did in the past.  The Tribunal accepts the applicant is genuine in his intentions in this regard, taking into account his oral statements and what it accepts of his past support to the Bihari community and associated activities with the BNP and their auxiliary organisations.  The Tribunal notes (as highlighted by the representative) the applicant successfully completed a [higher degree] in [Discipline 1] in Bangladesh, is aware of the political history faced by Bihari and has a keen sense of injustice about their treatment. 

1. Accordingly, the Tribunal is satisfied that the applicant will be politically active on return, aligned with the BNP to promote and protect Bihari rights, likely to be an activist and community leader in opposition to the ruling AL (and their auxiliary and aligned groups) as he did in the past. 

   Are the applicant’s fears as a Bihari, community leader, and BNP supporter well founded?

2. Given these findings, the Tribunal has considered independent country information (including that referred to in the representative’s written submission provided to the Tribunal) about politically motivated violence, the treatment of BNP and other opposition supporters, and discrimination and mistreatment of Bihari in Bangladesh to determine if the applicant faces a well‑founded fear of persecution from AL members and supporters (and others) on these bases on return to Bangladesh in the foreseeable future.

3. Country information indicates that Bangladesh’s political system is dominated by two parties: the Awami League (AL), who are currently in power, and the Bangladesh Nationalist Party (BNP).  According to DFAT, the relationship between the two parties is characterised by longstanding political and dynastic rivalry.  Bangladesh’s system of governance is based on political patronage, which is a motivating factor in voting, campaigning and party membership, and being a member of a political party or one of its auxiliary organisations may assist in getting a job.[7]  Further, DFAT report that the ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.[8] 

   [7]

   [8] Ibid at 3.66

4. DFAT state that since the AL came to power in 2008, it has considerably restricted activities of opposition political parties, particularly the BNP and the Jamaat-e-Islami (JI), including using police and other security forces to arrest thousands of opposition party members and supporters, often in conjunction with political demonstrations; using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and pressuring opposition candidates to withdraw from local and municipal elections.[9]  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.[10]

   [9] Ibid at 3.67

   [10] Ibid at 3.70

5. The UK Home Office in a recent report on political parties in Bangladesh make the following assessment about the risk faced by members of opposition groups in Bangladesh:

   In general, low-level members of opposition groups are unlikely to be of ongoing interest to the authorities and are unlikely to be subject to treatment that is sufficiently serious, by its nature or repetition, to amount to persecution. Opposition party activists, particularly those whose position and activities challenge and threaten the government and raises their profile, may be subject to treatment, including harassment, arrest and politically motivated criminal charges by the police or non‑state actors, which amounts to persecution.[11]

   [11] UK Home Office, Country Policy and Information Note, Bangladesh: Political Parties and affiliation, September 2020 at 2.4.7

6. According to DFAT, BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices; BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.[12]  DFAT assesses that allegations of violence against BNP figures are credible, and that other 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 AL government may be targeted for criminal charges, especially if they are involved in violent protests.[13]

   [12] DFAT at 3.80

   [13] DFAT at 3.82

7. In a recent report on political parties in Bangladesh, the UK Home Office state that BNP and JI officials claimed mass arrests and detentions of their supporters pre‑2018 election; thousands facing trumped-up charges or under the Digital Security Act for posting/liking posts against ruling party members on social media; filing cases against opposition although common, on many occasions cases are reportedly dismissed by courts for being without merit; reports of police extortion of numerous arrested activities and leaders; also reports of torture in police custody, extra-judicial killings and disappearances and restrictions on movement.[14] 

   [14] UK Home Office, Country Policy and Information Note, Bangladesh: Political Parties and affiliation, September 2020 at 2.4.5

8. The same report notes the AL currently holds significant power in Bangladesh. In the December 2018 elections the AL party’s coalition officially won 96% of the popular vote.  According to the UK Home Office report, foreign and domestic analysts assessed that the election was neither free nor fair with voter intimidation and harassment, among other things, and that over 10,500 BNP and JI party activists were arrested in the run up to the election.[15]  The next presidential election is scheduled for 2023.[16]

   [15] UK Home Office, Country Policy and Information Note, Bangladesh: Political Parties and affiliation, September 2020, at 2.4.2 and 2.4.3

   [16] The Economist Intelligence unit,

9. According to the Freedom House report, Freedom on the Net 2019, covering the period 1 June 2018 to 31 May 2019, ‘The ruling Awami League (AL) has consolidated political power through sustained harassment of the opposition and those perceived to be allied with it […].’[17] Freedom House, ‘Freedom on the Net 2019’ (Overview), 2019.

   [17] Freedom House, ‘Freedom on the Net 2019’ (Overview), 2019

10. Other sources confirm the crackdown on political opposition, regular harassment and arrest of BNP and other opposition supporters, and overall an increasing intolerance for any point of view that is seen as being in opposition to the AL government in Bangladesh.[18]

    [18] For example, Bertelsmann Stiftung, ‘BTI 2020 Country Report – Bangladesh’ (page 27), 2020; Human Rights Watch, ‘“Creating Panic”…’ (pages 11 and 14), December 2018; and Freedom House, ‘Freedom in the World 2020 – Bangladesh’ (Section B2), 4 March 2020

11. Regarding auxiliary organisations, DFAT report as follows:

    Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers or labourers). These organisations might be known by other names, such as “fronts”, “wings”, “associates” or “leagues”. While the exact size of these organisations is unknown, they are large […] The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities, and the auxiliary organisations maintain a high degree of autonomy.[19]

    [19] DFAT at 3.89

12. The auxiliary organisations support the political parties through fundraising and election‑related activities. However, they also play a major role in inter- and intra‑party violence. DFAT assesses as credible allegations that members of student wings are sometimes party activists rather than genuine students, and that auxiliary organisations engage in criminal activities on occasion, including violence and extortion. Student elections, like other elections, can turn violent and be characterised by inter-party and intra‑party violence in a pattern similar to civic elections.[20]

    [20] DFAT at 3.90

13. In this case, the Tribunal accepts the applicant was a community leader, supporter of the BNP in his local area and an activist promoting Bihari rights and speaking out against their mistreatment.  It accepts he has experienced harassment and threats as a result, including because he helped organise a civilian defence against the attack on Mirpur camp by AL supporters in 2014, prior to leaving.  It accepts enquiries about him through his brothers and neighbours have continued whilst the has resided in Australia.  It also accepts he holds political opinion in opposition to the authorities in Bangladesh (pro-BNP and pro-Bihari rights) as submitted by his representative, and if returns he will feel compelled to resume the role as an advocate because of these beliefs, and consequently his affiliation with the BNP.

14. Given these findings about the applicant’s past experiences and profile, and country information set out above including DFAT’s assessment that active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, the Tribunal is satisfied that if the applicant were to return to his home area of Dhaka, Bangladesh, and re-engage in political activities in support of the BNP and become a Bihari community spokesperson and leader (even if unofficial), he faces a real chance of serious harm by members, supporters and/or affiliates of the AL as per s.91R(1)(b).  The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s political opinion (pro-BNP and pro-Bihari rights) as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).

    State protection

15. The Tribunal has gone on to consider if state protection is available to the applicant.  It is submitted the harm the applicant fears is from the Bangladeshi authorities including police, military, intelligence service, and AL and their affiliates (state and non-state actors) who target BNP and other opposition supporters and leaders.  The applicant submits that the Bangladesh authorities cannot protect him from the harm he fears from AL members and supporters of a party who currently hold power (and have since 2008). 

16. As noted, DFAT state that the ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power[21] in Bangladesh.  This assessment is echoed in the UK Home Office report in which it is stated that:

    Law enforcement agencies are politicised in favour of the ruling AL and are used to supress and silence the opposition and those affiliated with it, including family members, particularly during times of heightened political tension, such as during election campaigns, student elections or during political demonstrations. Whilst some police officials discreetly support the BNP, most are allied to the ruling party and are alleged to be recruited on the basis of their political affiliation.[22]  

    … Law enforcement agencies are aligned with the ruling party. Political affiliation may be a motive for the arrest and prosecution of people on criminal charges. The police and the criminal justice system are functioning, but their effectiveness is undermined by poor infrastructure and endemic corruption, which severely compromises the state authorities’ ability to provide effective protection, particularly for active members of opposition political parties. There are reports of incidents in which members of the security forces engaged in human rights abuses, police ignoring complaints from the opposition and of not attempting to stop violence perpetrated by Bangladesh Chhatra League (BCL), the student wing of the ruling Awami League. 

    The willingness of the authorities to protect will depend on the profile of the person, in particular their links with the ruling party.[23]

    [21] DFAT at 3.66

    [22] UK Home Office, Country Policy and Information Note, Bangladesh: Political Parties and affiliation, September 2020 at 2.4.4

    [23] Ibid at 2.5.3 and 2.5.4

17. DFAT report that both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests.[24]  In their 2020 country report on Bangladesh, BTI go so far to state that ‘law enforcement agencies are used as political instruments to silence opposition’.[25]

    [24] Ibid at 5.5

    [25] Bertelsmann Stiftung, ‘BTI 2020 Country Report – Bangladesh’ (page 7), 2020

18. Given this country information about political influence and control of state institutions including the police and the AL’s dominance in the political arena, the Tribunal finds that the level of protection available to the applicant from the Bangladeshi authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to his home area of Dhaka now or in the reasonably foreseeable future.

    Relocation

19. The Tribunal has gone on to consider whether the well-founded fear of persecution in Dhaka in the applicant’s case extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Bangladesh where he does not have a well‑founded fear of persecution. 

20. At hearing, the applicant said he would be motivated to support the Bihari community – and through doing so, support the BNP – wherever he may reside in Bangladesh, including possibly in Jessore with his in-laws, which is not that far from Dhaka. 

21. In the circumstances of this case, where the harm feared is from both state actors and individuals who are aligned with the ruling party, which the country information indicates has interfered in and heavily politicised state institutions, including the police and judiciary and resulting in constraints to the rule of law in Bangladesh, the Tribunal is not satisfied that the applicant could remove the real chance of serious harm that he faces by relocating to another area of Bangladesh away from his home area in Dhaka.

22. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution from AL members and supporters if he returns to Bangladesh in the reasonably foreseeable future, for the reason of his (anti-AL/pro-BNP/pro-Bihari rights) political opinion.  

    CONCLUSION

23. 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).

    DECISION

24. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Nicole Burns
    Member

    
    
    

DFAT Country Information Report, Bangladesh 22 August 2019 at 3.63 and 3.64;
UK Home office 2.44