1730225 (Refugee)

1730225 (Refugee) [2022] AATA 650 (27 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730225
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:James Lambie
DATE:27 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 January 2022 at 4:50pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – Federal Court remittal – actual or imputed political opinion – membership of the Bangladesh Nationalist Party – subject of false criminal charges – victim of a politically motivated court case – pending criminal case – not an active member of the party – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 20 June 2013 and the delegate refused to grant the visa on 7 November 2014.
The First Tribunal affirmed the delegate’s decision on 4 August 2016. The First Tribunal’s decision was set aside by the Federal Court of Australia on 27 November 2017 and remitted to the Tribunal as presently constituted.
The applicant appeared before the Tribunal on 13 May 2021 and 21 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.
Refugee criterion
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).
Australia is a party to the Refugees Convention and generally speaking, 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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age]-year-old national of Bangladesh. He is a Sunni Muslim.
The applicant first arrived in Australia undocumented [in] March 2013. He has remained onshore since.
On 20 June 2013, the applicant applied for a protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 7 November 2014.
On 16 December 2014, the applicant applied for review of the delegate’s decision to refuse his protection visa application.
On 4 August 2016, the First Tribunal affirmed the delegate’s decision. The First Tribunal’s decision was set aside by the Federal Court of Australia on 27 November 2017 and remitted to the Tribunal as presently constituted.
Claims:
The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.
The applicant claims he is a member of the Bangladesh Nationalist Party (BNP).
The applicant claims that due to his membership of the BNP, his life is in danger by [the] Chairman and Secretary of the local Bangladesh Awami League Party (BALP) and supporters in his village.
The applicant claims that four months before his departure, the BALP’s local chairman blackmailed him and demanded [amount] Bangladeshi takas. He claims the chairman and his men, [Mr A] and [Mr B] came to his shop and told him if he wanted to operate his business, he should pay them the money. He claims they gave him 15 days and threatened that if he contacted the police they would shoot him.
The applicant claims that after he left Bangladesh on [date] February 2013, his father opened the shop and seven of the chairman’s men approached his father and asked about the applicant’s whereabouts. He claims the men intimidated his father and ransacked and destroyed the shop. He claims his father was intimidated and could not resist. He claims they stabbed his father and threatened that if he went to the police station they would kill him. He claims his father fled to his house and never opened the shop again.
The applicant claims that in 2010, [Mr C], a member of the BALP filed a case against him and 15 other people accusing them of stealing [an item]. He claims they never did this and that the case was filed in order to get money out of them. He claims the case was ongoing and remains pending in Bangladesh.
The applicant claims that if he returns to Bangladesh, the BALP supporters will target him because he is a BNP member and supporter. He claims the BALP are the current government in Bangladesh and it will not extend protection to the applicant as it views members of the BNP as its opponents and a threat to their hold on power.
The applicant claims relocation is not available to him because of the lack of state protection.
On 18 July 2021, the applicant submitted an undated statement to the Tribunal. In this statement, the applicant made new claims in relation to his disability. He claims he has had a stutter since childhood, which obstructs his flow of speech and results in incomplete expressions. He claims he did not have any means of receiving treatment for his stutter.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 20 June 2013;
(b)the applicant’s identity documents provided to the Department, being copies of his birth certificate and ImmiCard;
(c)the protection visa decision record dated 7 November 2014;
(d)the application for review form dated 16 December 2014;
(e)Department file [number] concerning the applicant’s protection visa application, which includes all documents submitted to the Department in support of the application, including:
·written submissions from the applicant’s previous representative dated 10 September 2014;
·statutory declarations of the applicant, sworn on 12 June 2013; and
·an untranslated document labelled as ‘chairman certificate’;
(f)all documents submitted to the first Tribunal in support of the applicant’s review application, including:
·written submissions from the applicant’s previous representative dated 22 January 2016;
·a support letter from [an] English teacher dated 22 January 2016; and
·copies of the applicant’s identity documents, including his Queensland driver licence and ImmiCard;
(g)all documents submitted to the current Tribunal in support of the applicant’s review application, including:
·the applicant’s response to the invitation to comment and request to provide information dated 28 July 2021;
·an undated statement of the applicant submitted on 18 July 2021;
·copies of Bangladeshi court documents;
·a First Information Report filed on 5 February 2012 in relation to an incident which occurred on [date] February 2012;
·an undated statement made by [Mr C][1] in connection with the First Information Report filed on 5 February 2012;
·an undated statement made by an unknown Investigation Officer and Court Officer;
·an undated letter issued by the Bangladesh Nationalist Youth Party; and
·copies of the applicant’s medical records issued by [a clinic] and [a Hospital];
(h)country information on Bangladesh relevant to the applicant’s claims, as set out below.
[1] Referred to as [Mr C] in the applicant’s written statements.
The applicant’s statement of 12 June 2013 includes the following:
I fled from Bangladesh as I feared for my life should I have remained in the country. As member of the BNP party my life was in danger by the hands of the Chairman and Secretary of the local Awami League Political Party, and for that reason I fled Bangladesh.
The Awami League Party had a chairman called [name deleted] who sat in the police station and look after the affairs of the village due to the fact that they were the government in Bangladesh. The chairman wanted to blackmail me and forced me to pay money to them. As I refused when his representatives approached me they laid a case against me with the local police to harm and ruin my life. This occurred four months before I flee to Australia. They wanted [money] from me.
When this happened I was like usual running my father’s shop in the village. They ([Mr A] and [Mr B]) came to my shop and told me to hand over the money to them. They told me that if I want to do business in the village I had to pay them. I told them this is my own shop and the land also belongs to us why should I pay them. He replied by saying they are in power and I have to pay. He then threatened me and said I have 15 days to pay out the money. He also said that should I go to the police station they would shoot me. Out of fear for my life I never returned to my shop went to Dhaka and then on to Chittagong after which I left for Australia.
After I have left Bangladesh on [date] February 2013 my father returned to the shop and open for business for one week. [Mr A] and [Mr B] with five other men came to my father and want to know where I was on which he replied he doesn’t know. They told my father to pass me a message that I have to pay them. They told my father that I have borrowed money from them and have to give it back – which was not true.
My father then told them that if that was the case it was a matter between myself and them to sort out. They then told my father as the shop belongs to me they have to take stock from it and went ahead and help themselves. My father wanted to prevents them from taking stock but they were seven men and my father was intimidated and could not resist. They then stabbed my father and said that he should not go to the police station otherwise he would be killed. They then destroyed my shop and my father fled home and never returned to the shop.
In 2010 a man by the name of [Mr C] a member of the Awami League made a case against myself and 15 other people and accused us of stealing [an item]. We never did this but they used the case and laid it in the hands of the government in order to get money out of us. I attended the court and told them that I did not do it. The [item is very heavy] and my lawyer told the court that 15 people could not carry [an item] of this weight. The case was not completed and is still pending in Bangladesh.
…
The government of Bangladesh is Awami League and I will have no defence against these people. I was threatened not to go to the police otherwise I would be killed. There are no security in Bangladesh which will protect me. I support the BNP and in my village I have recruited a lot of support amongst the villages for the BNP. Amongst my one people I was regarded as a leader and a mediator for many issues in my village. On many occasions I presented cases of people in my village to the village chairman and tried to support them or get a resolution. My village people have come to me for advice and now that I have left I fear that the opposition will intimidate these people and the BNP will lose their support in the village. I am well known and will not be able to hide.
Country of reference:
The applicant claims to be a citizen of Bangladesh. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 13 May 2021 and 21 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Bangladesh. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Bangladesh. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Bangladesh.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.
[The applicant] told the Tribunal that he was born on [date] in [District 1]. He has [siblings]. His father is [an Occupation 1] in [a workplace] in [District 1]. He and his siblings attended [school]. His [Sibling 1] now lives in [Location 1] and his [Sibling 2] in [Location 2].
He said that his family became involved with the BNP in about 2006 or 2007. He was [age] or [age] at the time. At that time the BNP was in its last couple of years of government at the national level in Bangladesh. He has a [relative], [Mr D], who was president of the local district of the BNP and, between 2001 and 2009, was the chairman of the local council board. The applicant and his father were the only members of his immediate family that became involved with the BNP.
[The applicant] said that his active involvement with the party took place between 2006 and 2009. He said that he did not hold any formal position with the party but was very actively involved in [Mr D]’s political activities. When asked to describe the political activities, he said that he attended party meetings and assisted with the party’s public events. [Mr D] gave him money to organise public events. He would organise for microphones and amplifiers to be brought to them. He could not recall any other political activities – he did not seek selection as a candidate, considering himself too young at the time. When asked if there were any documents that might support his claims of party membership, he said that there were no membership cards issued at that time and that no documentary records of party membership or party positions were kept. He said that the local party president knew who was who. The Tribunal put to [the applicant] that his knowledge of political activities seemed sparse and vague and that it might be inclined to doubt his claims to political activism. He said he was a young man and that he was waiting for an opportunity to further his position. He said he lobbied his [relative] for opportunities but was rebuffed. In response to repeated questions relating to party processes, he could present no further details and confined his answers to the issue of his own junior status.
The Tribunal put it to him that it seemed unusual that there would be no documentary material at all relating to party affairs or membership. He said, if given time, he could get a letter from the party president also attesting to his membership and activities. The Tribunal put to him that this was the first offer from him of any documentary evidence of his claims and that it was surprising that he had waited eight years to do so, and until the present hearing was underway. The applicant said that he was never told until now that he would be asked to submit any documents. However, he would seek to correct this, if given time. The Tribunal agreed to allow him time to submit further documents but put to him that he might never have been a member of the BNP and that, had documents existed to support his claims, he would have submitted them by now. He said that might well be the Tribunal’s opinion, but he had not been told he would need documents. The Tribunal reminded him that it was for him to satisfy the Tribunal of the veracity of his claims. He said he would submit documents to show he was a party member. The Tribunal reiterated that it would allow time to do so but cautioned that, should the documents contain information in any way inconsistent with the claims he had made in this application or any previous proceedings, the Tribunal may form an adverse view as to his credibility and that this may affect the outcome of his application. He said he understood. Similarly, any adverse view of the authenticity of any document may also affect the outcome of the application. In response to the Tribunal’s question, he said that [Mr D] is still alive and that he would seek a statement or statutory declaration from him attesting to his political activities. The Tribunal put to him that, given that he is still in contact with [Mr D], and that [Mr D] knows all relevant details of the his claims of political activism, it may form the basis of an adverse inference as to the veracity of his claims if that evidence is not submitted. He said he understood. No such material was subsequently submitted.
The Tribunal took the applicant to his specific claims of persecution. The applicant said that, in 2009, the Awami League won the elections. He said that it was from this time that life became hard for BNP members. The local powerbrokers in the Awami League were able to identify those in the community who had been active with the BNP and sought retribution.
In 2010, the applicant claimed, he was subjected to court action for stealing [an item]. He said that this accusation had been fabricated by local Awami League figures led by [Mr C]. He said the case had since been dismissed, but the threat posed by the proceedings had been used to extort money from him.
The Tribunal put it to him that there would definitely be documents relating to the proceedings for the theft of the [item]. He said that, in Bangladesh, courts did not produce documents unless it was a big corruption case. The Tribunal said that this was very doubtful and that he had, in fact, told the previous Tribunal that he would obtain the relevant documents. The Tribunal said that there had been some confusion in the evidence as to whether the court case was brought in 2010 or 2012 and that he had offered to obtain the relevant papers to resolve this.
He said that because the case had been dismissed and was not a big corruption case, he would need to spend money to obtain any documents relating to it. The case is no longer running so any documents would be hard to obtain.
The Tribunal said that it had previously been his evidence that his father and his brother had also been accused in relation to the matter and that he had told the previous Tribunal he could obtain the documents from his family. He said he could ask his family, but because it was a political case, documents are not available. However, he would contact his family and find out. He said his lawyer might also have some of these documents.
The Tribunal returned to the issue of the attempted extortion. The applicant said that the supporters of the Awami League had demanded [amount] Bangladeshi takas from him. The Tribunal said that all of his previous evidence was that [different amount] takas (about AUD$4500) had been demanded. He said that they had held out the possibility that they would accept [different amount] takas. The Tribunal asked why, in all of his previous evidence, he had not mentioned the [amount] takas demand. He said he was confused – the [amount] takas was what he paid the people smuggler.
He said that, in addition to his [Occupation 1 job], his father ran a [shop]. [The applicant] worked in that shop. He said that two men, [Mr A] and [Mr B], who were known to him as active with Awami League, along with five others, visited the shop to extort money from him. They said he would need to pay [amount] takas in order to keep trading. He said the whole shop was not worth [amount] taka and he decided not to pay. He decided instead to flee to Dhaka.
The Tribunal asked whether he had any documents or photographs relating to his claims that the shop was subsequently destroyed. He said he could not produce any such material because, at the time he did not have a device, such as a smart phone, to create any record. The Tribunal put it to him that this was irrelevant because, on his previous evidence, he was not there when the destruction happened. He said he wanted to make it clear that he was not in the shop at the time, but he was nearby – he was closer to the family farm than to the shop. The Tribunal put it to him that all of his previous evidence was that this incident occurred after he had left Bangladesh. He said that he had previously said it had happened when he was in Dhaka. The Tribunal said that if his evidence was not consistent on this central issue, it would have real problems with the credibility of his claims overall. This was the only instance he had advanced of politically motivated violence against him and his family. He said he was being consistent – he had consistently said that the Awami League had demanded money. He had decided not to pay and fled to Dhaka. After he got to Dhaka, they destroyed his shop. The Tribunal put it to him that, in his statement to the Department, he had claimed this incident occurred after [date] February 2013, that is, after he had left Bangladesh. He said it was possible that he had been misunderstood. At any event, the incident occurred before he arrived in Australia. The Tribunal said that, until now, he had consistently claimed that the incident had occurred after he left Bangladesh. He said it was a possibility that he had been misunderstood in that he had said it happened after he left his village, not his country. The Tribunal put it to him that he had given an interview to the Department in Darwin in April 2013: at this time, he had not mentioned the destruction of the shop. He said he had paid the extortioners a little bit of money and then had run away. He had said that he had not been back to his shop since. The Tribunal put to that it was his statement of June 2013 that first contained the details of the attack on the shop. He said it was a long time ago now. The Tribunal suggested to him that the details he had provided the Tribunal were inconsistent with his previous accounts and that the Tribunal may take the view that the incident did not occur at all. He said that from the Tribunal’s vantage point in Australia, it might well come to this conclusion but that he would like his claims to be viewed from a humanitarian point of view. The Tribunal said that the humanitarian considerations applicable to his claims were at the core of its considerations, but it first needed to be satisfied that his central claims have a basis in truth.
The Tribunal asked if [Mr D], whom the applicant has described throughout as being a high-profile BNP figure, had, to his knowledge, suffered any difficulties in terms of politically motivated violence. He said that once, in about 2007, he had been attacked, beaten and imprisoned. The Tribunal said that, on his evidence, the BNP was still in power in 2007. It asked if this might have happened after 2009. He said it was 2007. The Tribunal reminded him that it was his evidence that the political violence against the BNP in his region took place after the Awami League took power in 2009. He said that he couldn’t actually remember. The Tribunal asked if there was any reason he had failed to mention it before, given that the alleged incident would have had an impact on his family and would have been likely to have caused fear. He said it was not related to him directly. The Tribunal noted that the applicant had described [Mr D] as his political mentor and that he only now had claimed that [Mr D] had suffered significant harm for his political opinion, and in response to the Tribunal’s own direct questions. He said he did not want to mount his claims on the back of [Mr D]’s experiences.
The Tribunal put to [the applicant] the following concerns with his evidence:
(a)His claims to membership of the BNP appear to be vague and unconvincing, and are not supported by objective evidence despite his claims that such evidence is available;
(b)If the Tribunal is unable to accept his claims of BNP political activity, it may make it difficult to accept that any harm he claims to have suffered was because of a Convention reason;
(c)His claim to have been the victim of a politically motivated court case is not supported by any documents, despite previously claiming that documents were available;
(d)The claims relating to the destruction of the shop was inconsistent with the evidence he had given to the Department and the First Tribunal and was also capable of being supported by documentary evidence which has not been provided.
The Tribunal told [the applicant] that it would not form a view on these concerns until he provided further evidence, or the time given to provide that material had elapsed. He was asked if he had any comment on the Tribunal’s observations.
[The applicant] said that there was the need to spend money to get the documents and the experience of some other Bangladeshi protection visa applicants he had spoken to was that the Department and the Tribunal had considered their documents to be forgeries. He did not want to spend such money needlessly. He said that his request was for the Tribunal to consider his case from a humanitarian point of view without the need for further evidence. He said that he was financially very constrained. The Tribunal asked that he give serious thought to seeking the evidence, much of which should be available with the assistance of his family in Bangladesh and without any apparent need to spend money. The Tribunal would, however, take his financial constraints into account.
The hearing was adjourned in order for [the applicant] to consider the submission of further evidence.
Between 8 July and 18 July 2021, the applicant submitted a number of documents to the Tribunal. These included an undated document described on its face (in the accompanying translation) as “Approved Partial Committee of Bangladesh Nationalist Youth Party, [specified] Branch” and copies of court documents.
On 19 July 2021, the Tribunal wrote to the applicant seeking his response to and comments on the following:

1.In your evidence to the Tribunal, you claimed that:
a. In or about 2010, you were accused of the theft of [an item];

b. This allegation came before the court in or about July or August 2012, and the case was dismissed; and

c. Following the dismissal of the court proceedings, supporters of the Awami league demanded money from you and your family and, on your failure to pay the demand, they attacked and destroyed the family shop.
2. In your evidence to the Tribunal, you claimed that court documents existed to
support your version of events, and that you would seek to obtain them; and
3. Attached to your email to the Tribunal of 15 July 2021, you enclosed copies with certified translations of Bangladeshi court records indicating that, in February 2012, you were charged with offences relating to unauthorised entry into a residence and bombing for the purpose of committing murder and serious injury, and with stealing.
This information is relevant to the review because the court documents are inconsistent with your evidence to the Tribunal and suggest that the accounts you have previously provided of events in Bangladesh forming the basis of your protection claims are untrue.
If we rely on this information in making our decision, we may affirm the decision under review to refuse your application for a Class XA, Subclass 866 (Protection) visa.
On 28 July 2021, the applicant responded in the following terms:
I believe what I said in the hearing was consistent with what is in the documents I submitted. I may not have remembered the exact wording of the charge correctly but I believe that what I said was broadly consistent with the documents. I invite you to listen to the relevant part of the recording with another interpreter.
If there is any discrepancy, it is explained by the passage of time that has elapsed since the charges were laid. What the paper says it is more reliable than my memory because what is written cannot be distorted.
[The applicant] was clearly aware that the documents he had submitted were inconsistent with his evidence because he had also made a submission received on 19 July 2021 in the following terms:
My case hearing was held on May 13, 2021, and I believe honourable judge is in process of making a decision. I would like to thank you for giving me an opportunity to present my case for asylum in Australia. I understand that there may be some discrepancies between what I said during the hearing and the documents I submitted. I am really sorry for that but please consider my documents as valid evidence against my claim for asylum. Returning to Bangladesh would be a definitive death sentence for me as the current government, their political activists and the administration maintain a zero tolerance to the activists of opposition party, in particular BNP. However, I will respect any decision the honourable judge makes. If your decision comes against my claim as an asylum, could I please request you to consider my disability status as a ground for this claim? I have a tendency to stutter since my childhood, which obstructs my flow of speaking and most of the time, I end up with an incomplete expression. This has always had some toll on my success …
After consideration, the Tribunal decided that a further hearing was required in order to allow the applicant to explain the apparent discrepancies in the evidence and determine whether he was making new or further claims in support of his application. The second hearing took place on 21 September 2021.
At the second hearing, after reminding [the applicant] of the nature of the proceedings, the Tribunal took him to the further documents and submissions he had provided. He confirmed that the documents received by the Tribunal were complete.
The Tribunal took the applicant to the Tribunal’s letter of 19 July 2021 and repeated its contents. It told the applicant that his previous evidence was that he had been accused of the theft of [an item] belonging to a member of the Awami League in about 2010, and that in 2012, after the proceedings in relation to that alleged incident were dismissed, members of the Awami League attended his shop and made demands and threats. The Tribunal had requested documents that might support this version of events. The Tribunal had now received copies and translations of court documents from him. As the Tribunal had noted in the letter, it was concerned that these documents were inconsistent with his claims. In particular, the Tribunal now sought his response in relation to the suggestion that he might, in fact, be the perpetrator rather than the victim of the events he had previously described. The Tribunal had noted his written submission that his return to Bangladesh was a death sentence because of the government’s policy of zero tolerance for members of the BNP. He said that this was the case.
The Tribunal then took the applicant to the BNP membership list he had provided. The Tribunal told the applicant it did not know what to make of it. He said the document was evidence that he was a member of the BNP. The Tribunal said that the document describes itself as an “approved partial list” of a committee of the youth wing of the Party. It is undated. A date would be essential for determining whether the applicant was in the party during the time he claims and to determine the period in which he, and the committee, was active. If it was part of the records of the party, a date or dates would be necessarily expected. Four members of the committee are described as “UP members”: the applicant was asked what this meant. He said that “UP” meant they were a member or a party worker. The Tribunal asked why four members were described as “UP members” while the applicant was just described as a “member”. He said that “UP” members are the senior members of the committee and hold positions like president or secretary. The Tribunal also noted that the translation provided was incomplete, in that two apparent signature blocks in the original were not included. He said he would go back to the translator and seek to have a fresh translation submitted, The Tribunal noted that this document was the only one before it that might evidence his membership of the BNP and that it might be in the applicant’s interests to do so, given previous findings that he was not a member. As matters stood, the Tribunal might be inclined to view the document as unreliable.

He said that the document was genuine, but that it was possible it contains mistakes. He would arrange for it be retranslated. He said the issuers of the document may also be able to clarify it.
The Tribunal said that the court documents cause it a little more difficulty. It put to the applicant that these documents indicate that it was he and his family who committed the violence against his neighbour, rather than the other way around. He said it was his family that was the victim of the attack, and that these documents show that his neighbours made a false claim against his family. The Tribunal put it to him that his evidence at the earlier hearing was that this neighbour, following the claim that he had stolen [an item], had come and made threats to him at his family’s shop, and later attacked it. He said the evidence he had given earlier was correct. The documents he had provided were evidence of a false claim made against him, which was why he had to leave the country.
The Tribunal said that all of these new documents are to the effect that the applicant and his family attacked [Mr C]’s property using Molotov cocktails and other weapons, stole a quantity of gold and cash and wounded someone with a knife. He said what had actually happened was that they had attacked him, and he could not file a case. They had then filed a case against him claiming to have been the victims. In fact, he was the victim. The Tribunal asked if he was submitting these documents as evidence [Mr C] had made a false claim against him. He confirmed that this was his intention.
He said that, if all of the details are considered, it was clear the allegations were false. He said that his father was [age] to [age] years old, and his uncle [age] to [age] years old at the time. They were too old to go to someone’s [workplace] and carry out an attack. This was a false claim to harass his family. He said that his family had a land dispute with [Mr C]’s family. The false case was also brought as a way to grab his family’s land.
The Tribunal said that all the written evidence before it was to the contrary of the applicant’s claims. The adjournment of the first hearing had been granted because the applicant had told the Tribunal he would be able to obtain copies of the legal documents relating to the dispute over the [item] and other documents relating to the attack on him and/or the family’s shop. The only documents produced relate to an assault by the applicant on others. He said these allegations against him are all false. He had not even fully aware of the nature of the allegations against him until he received them. His father had not even told him of these allegations, perhaps so that he would not worry too much about them.
The Tribunal reminded the applicant that it had informed him at the first hearing of other inconsistencies in his account. He had been given the opportunity to obtain a statement from [Mr D], which had not been provided. Further, he had previously claimed that his troubles started when the local chairman of the Awami League accused him of stealing the [item], a matter which went to court and was subsequently dismissed. Then came the visit to his shop by [Mr A] and [Mr B], whose threats caused him to flee to Dhaka and then ultimately to Australia in February 2013. At some time around then, people came and destroyed the shop. The applicant had variously given evidence that the shop was destroyed after he had left Bangladesh, that he was nearby when it happened, and that he was in Dhaka at the time. He said he was not nearby when it happened. If he had been nearby, the perpetrators would have killed him.
The Tribunal asked the applicant why he had never mentioned before that members of his family had been arrested for the alleged attack on [Mr C]. He said it was recorded in the court documents that his father and other family members were arrested and held in custody for 50 days. The Tribunal was unable to locate any such record.
The Tribunal took the applicant back to his original claims. It asked if there were any documents relating to the incident with the [item]. He said he did not have any such documents. He confirmed that he also had no documents relating to the subsequent claimed events. The Tribunal put to the applicant that the only documents he had submitted were to the effect that, in either February or December 2012[2], the alleged attack had occurred and that he and some relatives of his had been named as the perpetrators. The documents suggest that a number of his relatives were arrested and subsequently released on bail, while an arrest warrant was issued for the applicant as a fugitive.
[2] The dates on the various documents vary as to whether the alleged incidents occurred in February or December 2012, the months being rendered as 02 or 12 respectively. The relevant day is consistently rendered as 05. It is possible that this is as a result of a transcription or translation error.
The Tribunal told the applicant that, if he sought to make a new claim based on the existence of these charges, it might be difficult to see where the refugee claim arises, given that his relatives appear to have been given due process and released on bail. Further, despite the serious nature of the charges, the applicant has made no claim that anything further has happened to them, other than the claimed attack on his father’s shop. The applicant said that they were in prison for three months, and could be in prison for one year, or even for five years. The Tribunal put it to him that, if that were the case, he would have made that part of his claim. There was nothing to suggest that they had come to any harm. He conceded this point. The Tribunal put it to him that, therefore, if nothing serious had happened to them, despite the serious nature of the charges, it might suggest that nothing would happen to him if he returned to Bangladesh.
The applicant said that this may be correct, but the Tribunal should note that he had come to Australia nine years ago and had worked hard and paid tax to the Australian government. He had not walked away from his responsibilities and his duties. He said he deserved something better after spending nine long years in this country. The Tribunal said it understood the submission, but the purpose of the hearing is to assess his claims against the refugee criteria: this requires the Tribunal to be satisfied that he has a well-founded fear of persecution should he return to Bangladesh.
The applicant said that there is still a risk because the case against him is still pending. If he returns to Bangladesh, the case will be reactivated and he will face serious consequences. The Tribunal put it to him that seven other members of his family have been accused in the case, have been granted bail, and no other consequences appear to have followed. He said the situation is different for him because he first learned of the case after he had left the country. Unlike them, he could not surrender to the court and seek bail. He said that, if he returned, he would be treated as a fugitive and face harsh consequences. He said that, further, his father and uncle are both old and have been treated leniently because they do not represent a threat.
The Tribunal suggested to him that, until this hearing, none of his claims related to him being a fugitive from justice. They all related to his persecution as a member of the BNP. He said that this was the way he framed his case so he could stay in Australia. It is hard for him to make his case in a complex way.
The Tribunal took the applicant to his entry interview with the Department. It noted that he had claimed to have [number of children]. He said that was [correct]. The Tribunal told him that, in that interview, he had claimed that he had received threats that his [child] would be kidnapped but he had not since repeated that claim. He said he had been worried about the possibility at the time but did not now claim there was any continuing threat to them. The Tribunal asked if, since 2013, his family had faced any trouble in Bangladesh, either as a result of the criminal complaint against them, or from the Awami League. He said the government had occupied the family land. He could not provide any document about that. In response to the Tribunal’s question, he said that no-one had come to any harm. His parents’ main problems are age-related health concerns.
The Tribunal asked if, should be return to Bangladesh, he would be safe in Dhaka or Chittagong. He said he was not safe anywhere in the country because the criminal case could be reactivated at any time and he would come to harm. The Tribunal said that, as far as could be determined, none of his co-accused had so far faced any criminal sanction. He said that his case was different because he would be treated as a fugitive.
The Tribunal reiterated that some clarity was required in relation to the claimed BNP membership list. A period of four weeks was given to submit any explanatory material in relation to this.
The applicant raised the fact that he had recently had [a] surgery. The Tribunal said that, if there was anything he wished to say about this, he should submit his medical reports within the time allowed for any post-hearing submissions.
Following the hearing, the applicant submitted a new version of the party committee list and some medical records, discussed further below.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[3]
[3] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[4]
Membership of the BNP
[4] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal has had regard to the following country information on Bangladesh relevant to the applicant’s claims.
Political opinion
The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[5] reports on Bangladeshis who hold an actual or imputed political opinion and the BNP:
[5] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Bangladesh’ (22 August 2019) at pp 24-27.
Political opinion (actual or imputed)
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.
…
3.66 Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. 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.
3.67 Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI (see relevant sections). These restrictions have included:
·using police and other security forces to arrest thousands of opposition political 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, including through preventing them from submitting election nominations.
3.68 Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.
3.69 While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country (see Media). Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.
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.
Bangladesh Nationalist Party (BNP)
3.77 The BNP was founded in 1978 following the assassination of President Mujibur Rahman, and was established on a platform of Bangladeshi nationalism and Islamic identity. At its founding, and at the 2014 election, it cooperated with JI. In the lead-up to the 2018 election, however, BNP attempted to distance itself from JI as a way to demonstrate that it did not support extremist ideology.
3.78 The BNP Standing Committee is the top decision-making body of the party. Various secretaries have responsibility over political portfolios, such as foreign affairs or information, within that body. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
3.79 Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.
3.80 BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The 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.
3.81 Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.
3.82 DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.
The Tribunal has questioned the applicant at length concerning his claimed active membership of the BNP. In doing so, the Tribunal has been mindful that the application was remitted to it by the Federal Court with the notation that the Tribunal as originally constituted committed a jurisdictional error by failing to put the applicant on notice that it was proposing to make a finding that he had not been a member of the BNP, in circumstances where a delegate of the Minister had accepted that he was a member of the BNP.

The delegate found that:
The applicant has been consistent during interviews (entry and PV interviews) that he and his family were BNP supporters. I accept that the applicant was a BNP supporter. I however do not accept that the applicant had a major involvement with BNP besides being a low-level supporter.
The applicant’s evidence to the Tribunal as presently constituted is summarised in paragraphs 45 to 47 above. His knowledge of party activities was, in my assessment, strikingly limited and he ventured no views in terms of the BNP’s policies and aims in his local area, or of its internal processes. The documents he submitted as evidence of his party membership and activism are of very little value, being two versions of the same document, the second having been amended to take account of the Tribunal’s criticisms. The submission of a committee membership list that contains no date is of very little assistance, bearing in mind the necessarily changing membership of party committees, the applicant’s own claims of involvement only over a period of some three or four years, and the fact that his claimed membership ceased some 12 years ago. I have also had regard to the country information on the prevalence of document fraud in Bangladesh.
The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[6] reports on the following on document fraud:
5.43 Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.
[6] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Bangladesh’ (22 August 2019) at p 52.
While the Tribunal notes that obtaining party documents may indicate the use of patronage networks, which might be probative of party membership, there is nothing in the documents to suggest that their origin is genuine. In coming to this assessment, I give considerable weight to the fact that the claimed committee membership list is undated as to its currency in both versions and the amendments made to the second version in apparent response to the criticisms made of it at the hearing. The signatures of the two officials in the second version appear likely to be in the same hand, although the Tribunal makes no finding in that regard.
I have considered the applicant’s evidence concerning the political activities of his [relative], [Mr D]. As suggested by the country information, the applicant’s place within a patronage network may be probative of party affiliation. However, I do not consider the applicant’s claims in relation to [Mr D] to be reliable, the history of his political victimisation running counter to [the applicant]’s own narrative and in the absence of any evidentiary support from [Mr D]. In the absence of any explanation, I consider the combination of the submission of the claimed membership list and the absence of any support from [Mr D] quite surprising, given that [Mr D] was his principal contact with and entrée to the party.

100. In all of the circumstances, while I am prepared to accept that, in his local area, [the applicant] may have been identified as a BNP supporter, I do not accept his claims to have been an active member of the party.
Politically motivated violence
101. In assessing the applicant’s claims that he and his family had been the subject of politically motivated violence, I have given consideration to the finding of the delegate accepting the plausibility of the extortion attempt and that it had a political dimension. I have also had regard to the country information quoted at paragraph 93 above that:
allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.

102. The Tribunal therefore observes that the claims made by the applicant have a prima facie degree of plausibility in the context of Bangladeshi politics, particularly in the aftermath of a change of government. However, the Tribunal has not accepted that [the applicant] was an active or high-profile member of the BNP, and he has made no claim to have been involved in violent protests. The country information provides only limited assistance to his application.
103. As noted above, [the applicant]’s evidence to the Tribunal as to timing and nature of the extortion attempt and subsequent attack was inconsistent with evidence he had previously given and was not supported by the documentary material he submitted. His claim to have been the subject of a fraudulent lawsuit or trumped up criminal charge in respect of the [item] between 2010 and 2012 has no documentary or other evidentiary support. His claim that those proceedings precipitated the visit to the family shop for the purpose of extorting [amount] taka has been consistently maintained and has some prima facie plausibility, subject to the observations below as to the evidence. The attack on the shop following [the applicant]’s failure to pay and/or departure from the village contain serious inconsistencies. The first of these relate to the timing of the claimed event: [the applicant]’s evidence to the Tribunal varied between it occurring while he was in Dhaka or after he had left Bangladesh. At the hearing, he made some remarks suggesting that he had been in the locality when the attack occurred but disclaimed them when the inconsistency was put to him. If the attack occurred at all, it is likely to have been at some time between April and June 2013, well after his arrival in Australia. This conclusion is informed by the fact that he does not mention it in his protection visa interview of 13 April 2013 but does describe it in his statement of 12 June 2013.
104. The documents provided by [the applicant] following the adjourned hearing complicate his account considerably. As noted in paragraphs 70 and 71 above, they indicate that [the applicant] and members of his family were the alleged perpetrators of an attack sharing striking similarities with that of which he claims to be the victim. These similarities include an incursion into commercial premises by a group of about seven or more, significant damage to those premises, a stabbing of one person, and an extortion demand of [amount] taka.
105. When these matters were put to [the applicant], his evidence was that the documents are evidence that his political enemies had twisted the events of which they had been the perpetrators so as to cast him and his family as the criminals. The principal problem with this explanation is that, on the face of the documents, the events they describe pre-date [the applicant]’s account of it by between 15 months and five months (see the footnote to paragraph 76 above in relation to disparities in the dates in the documents).
106. The documents are suggestive of a scenario in which [the applicant] decamped from the village in the aftermath of the alleged attack and then sought to evade arrest by leaving the country. However, he remained insistent that no such attack occurred and that the allegations were ridiculous. He maintained that the Tribunal should construe them as evidence of charges being brought against political opponents to silence or punish them. In all of the circumstances, I am inclined to give the documents more credit than I give to [the applicant]’s account, particularly having regard to the fact that they were apparently created well before the account he subsequently gave to immigration authorities (which is not to say that I accept that the allegations in the documents are true). Accordingly, I am not satisfied that the claimed extortion demand and the subsequent attack occurred as claimed, or at all. Further, in view of [the applicant]’s express evidence (see paragraph 81 above) that none of his family have had any reason to fear for their safety since he left the country in 2013, I am not satisfied that any fear of persecution on [the applicant]’s part is well-founded.
107. I note that certain of [the applicant]’s initial claims were not maintained at the hearing. He made no mention at the hearing of his father being stabbed and, in response to the Tribunal’s questions, said that his father had suffered no health effects (other than those related to his age) since he left the country. In any event, having not accepted that the alleged attack on the family shop occurred, I do not accept any of the specific events claimed in respect of it. The claim in respect of threats to kidnap his [child] he described as a general concern about kidnapping that he now no longer holds.
108. At the second hearing, [the applicant] told the Tribunal that the existence of the charges gave rise to a reasonable fear that, should he be returned to Bangladesh, he would suffer serious harm. He said that his arrival back in Bangladesh would reactivate the charges and that he was effectively facing a death sentence. Given that his father, uncle, and other family members were released on bail and that nothing further has happened to them, there is nothing to suggest that the case has been used as an instrument of political repression, or that it has proceeded beyond the most preliminary steps in the 10 years that have passed since the allegations were made. Other aspects of this claim are considered in terms of complementary protection below.
109. Although I consider the documents to be more reliable than [the applicant]’s own account (as he himself initially invited me to do), there is reason to treat them with caution. I have considered the possibility that a person or persons in Bangladesh sought court documents supportive of [the applicant]’s claims, misunderstanding the nature of the claims. This possibility is informed by the following in the DFAT country report:
5.44 Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents, can often be difficult to verify through formal channels. This is for a variety of reasons, including expectations by some officials of facilitation payments, or genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh[7].
[7] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Bangladesh’ (22 August 2019) at p 52.

Ultimately, however, it is unnecessary to make a finding on that possibility. The documents are not entirely satisfactory, either to their contents, or to their provenance. The dates in the translations make for a very jumbled narrative and there are also dates in the records that appear to have been transliterated with the dates the copies were purportedly made. I do find that, should the charges ever have been genuine, there is no evidence in them, or from the applicant, to suggest that they have proceeded.
110. Taking all of the evidence into account, I am not satisfied that:
(a)the applicant was an active member, or was identified as an active member, of the BNP, although I am prepared to accept that he may have been locally recognised as a supporter of the BNP;
(b)the applicant was the victim of an extortion attempt, whether for political reasons or at all;
(c)the applicant’s family shop was attacked, in the course of which his father suffered injury, whether for political reasons or at all; and/or
(d)the applicant and his family were the subject of false criminal charges because of their actual or imputed political opinion, or at all.

111. The country information does not assess low-level BNP supporters as facing significant risk of arrest, aside from participation in violent demonstrations. There is no evidence to satisfy the Tribunal that the applicant meets any of the descriptions in the country information that might identify him as a person at risk because of his political views or activity. Accordingly, the Tribunal is not satisfied that the applicant holds a well-founded fear of persecution in Bangladesh by reason of his actual or imputed political opinion.
Access to medical treatment
112. The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[8] reports on the following on access to medical treatment:
[8] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Bangladesh’ (22 August 2019) at p 10.
2.15 The Constitution stipulates that the provision of health care is a government responsibility. In practice, however, the private sector and non-governmental organisations (NGOs) provide a significant portion of health services. Health care facilities in Bangladesh are generally poor in quality. While there are some private clinics that offer better quality, these tend to be beyond the means of ordinary Bangladeshis. Local clinics exist at the community or village levels, and support larger district or central hospitals. Although some government health services are supposed to be free, patients report that they are generally required to pay money to access services. Consultation fees are often exorbitant and out of reach of the poor. Doctors also reportedly tend to ‘over-service’ clients, ordering unnecessary tests to increase their incomes.
2.16 Despite considerable need, there are few support services available for those suffering from mental health disorders and no specific mental health authority. Private mental health facilities are primarily located in Dhaka, although there is also a large mental hospital in Pabna. Mental health facilities are limited, expensive, and difficult to access, particularly for those in rural areas. Those with the means generally seek treatment abroad, where the quality of treatment is better. A significant stigma attaches to people with mental health conditions. There have been public reports of mental health facilities and families shackling those with mental health conditions with chains or ropes in order to restrain them. It is unclear whether this practice is widespread.

113. The evidence from the applicant is that he has a speech impediment (a stutter) that affects his ‘success’. This is not supported by a report. I detected a very mild stutter when he gave some of his evidence in English. I am unable to be satisfied that it amounts to a disability.
114. The applicant also submitted a medical report from [a] neurosurgeon, dated 23 August 2021 indicating [specified symptoms] and the applicant had agreed to undertake [specified treatment]. He also submitted a discharge summary from [a] Hospital dated 31 August 2021. It reports that, following the procedure, he was assessed as independent in terms of mobility, activities of daily living, and diet. There is no suggestion of chronic illness or disability. There is nothing in this material to suggest that [the applicant] has any health conditions that might give rise to any well-founded fear that he might come to harm by reason of his health should he return to Bangladesh now or in the reasonably foreseeable future.
Treatment of returnees and conditions for returnees
115. Although [the applicant] has made no express claims in respect of treatment of returnees, I have considered the country information as to whether a maintainable claim might arise on this ground.
116. The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[9] reports on treatment of returnees and conditions for returnees as follows:
[9] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Bangladesh’ (22 August 2019) at pp 49-50.
Exit and Entry Procedures
5.24 The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh’; or where doing so would be contrary to the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
5.25 The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. Authorities require permission from both parents before allowing travel by a minor (children under the age of 12). Minors who have passports or whose names are listed on a guardian or parent’s passport may travel with only one parent.
Conditions for Returnees
5.27 Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees (including for Rohingya) before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organization for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
…
5.29 Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted (see Bangladesh Nationalist Party (BNP)). DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
5.30 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.

117. The Tribunal having found that it cannot be satisfied that [the applicant] would be identified as an active member of the BNP, it also cannot be satisfied that he has a political profile sufficient to attract official notice should he return to Bangladesh now or in the reasonably foreseeable future.

Cumulative claims
118. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his actual or imputed political opinion or his actual or claimed health problems of disabilities, or any other reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Bangladesh. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
119. The Tribunal has considered the applicant’s claims under complementary protection.
120. In doing so, the Tribunal has taken into account the relevant country information and, in particular the DFAT report on Bangladesh, at pages 41 to 43. I have assessed the applicant’s claims that he has pending criminal charges by reference to the country information on deaths in custody, the death penalty, and torture and cruel, inhuman or degrading treatment of punishment.
121. The country information on deaths in custody is that 64 custodial deaths were recorded between 1 January and 30 November 2018. Causes of custodial deaths included the effects of torture in police remand, negligence by prison authorities, and deprivation of medical treatment in jail.
122. The country information is that:
Bangladeshi law allows courts to impose the death penalty for a number of offences, including murder, terrorism, sedition, espionage, treason, rape, kidnapping and drug trafficking… Very few of these sentences are ever carried out, however, and Amnesty International reported that Bangladesh did not conduct any executions in 2018.[10]

123. The country information on torture and cruel, inhuman or degrading treatment or punishment is that:
DFAT assesses that allegations that Bangladeshi law enforcement agencies often use torture as a tool of interrogation or punishment are highly credible.[11]
[10] Ibid, p 42
[11] Ibid, p 43

124. In view of the country information, the Tribunal has given careful consideration to the applicant’s claims that his return to Bangladesh would reactivate the criminal investigation raised at the second hearing. The applicant, in reliance on the documents he submitted, claimed that his return to Bangladesh would be an effective death penalty.
125. For the reasons stated at paragraphs 108 and 109 above, I am not satisfied that the court documents are reliable as to their provenance or contents. I am satisfied, however, on the basis of the applicant’s own evidence, that all of his (claimed) co-accused are at liberty and have suffered no harm, and that the criminal proceedings have not advanced since 2013. I am therefore not satisfied, on the evidence before the Tribunal that the claimed criminal charges provide substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
126. For the reasons stated at paragraphs 111, 114 and 117, I do not consider that the applicant’s claims as to his political opinion, need for medical treatment or status as a returnee provide substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
127. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
128. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
129. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk that he will suffer significant harm.
Overall conclusion:
130. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

133. The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Lambie
Senior Member

[2022] AATA 650

27 January 2022

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