1820127 (Refugee)

1820127 (Refugee) [2022] AATA 4804 (18 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER: 1820127

COUNTRY OF REFERENCE: Bangladesh
MEMBER:David McCulloch
DATE:18 November 2022
PLACE OF DECISION: Sydney
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 18 November 2022 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National party – political party protests – false criminal charges – physical violence – political activities in Australia – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2018 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 9 August 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 20 October 2022 at 9.30am to give evidence and present arguments. The Tribunal also received oral evidence in person from [Witness A] and [Witness B]. [Witness C] gave evidence by telephone from Bangladesh. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 22 August 2019, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the protection criteria are met. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal notes the applicant’s migration history from the decision of the delegate. On 4 April 2017, the applicant was granted a Class FA Tourist visa valid for one year. The applicant arrived in Australia [in] April 2017. The applicant returned to Bangladesh [later in] April 2017. The applicant returned to Australia for a second time [in] July 2017. The application for the protection visa was made on 9 August 2017.
The Tribunal notes the following from the application forms for the protection visa. The applicant was born on [date] in [a location in] Dhaka. The applicant is of the Islamic religion. The applicant was married [in] August 2000. The applicant lists both parents and [specified family members] living in Bangladesh. The applicant completed [school] education in [specified year]. From [then] until March 2001, the applicant worked as [an occupation 1] for a [a business 1], [Employer 1], in Dhaka, and from April 2001 until July 2017 he worked as [an occupation 2] for a different [business 1], [Employer 2], in Dhaka. The applicant refers to a false case being lodged against him when asked as to criminal charges pending.
The applicant provided the following written statement to the Department (not corrected for spelling or grammar):
1.     I was born in Bangladesh on [date] in a middle.class family, My Father is a farmer and my mother is a housewife, We are [number of children] from our parents. Many of our family members are involved in the politics of the BNP.
2.     I completed [school] in [year]. After completion of [schooling], I was admitted into [College 1] at [Gazipur], a political oriented colleges in our region.
3.     While I was at the above college I joined the Jatiyata badi Chatradal, the student wing of the Bangladesh Nationalist Party(BNP). In 1997 I became one of the Vice presidents of the college committee chatradal, at the same year in 1999, I appeared HSC from the above college but failed due to ceaseless involved in politics. In 2000 I joined a [business 1] named [Employer 2], as an Assistant [occupation 1]. Later I became [an occupation 1]. I joined [Employer 1] in April 2001 as a [an occupation 1]. In the meantime, I become involved in politics seriously and I joined the Jatiyabadi JuboDal, the youth wing of the BNP. In the meantime, our country experienced a parliamentary election, which was held on 1 October 2001.
4.     I participated in the above election and campaigned for [Witness C] who was nominated from the BNP. This time our arch rival was [Candidate A], from the Awami League. I campaigned and asked vote for our candidate, end of the day our candidate won the election at the same time our party gained two third majority seats in parliament.
5.     When the BNP came power, a development work emerged in the country and the BNP did remarkable work for the country. However, the BNP quitted from power after spending full five years in power and in October 2006 transferred power to a Caretaker government headed by then President lajuddin Ahmed, this head of the caretaker government did not like by the Awami ally. As such a political chaos erupted in Bangladesh. As a result, an army backed caretaker government came in power through a military coup. This caretaker government remained in power for about two years unconstitutionally and arrested many BNP leaders and activists including our party head Begum Zia and Mr Tareq Zia. However on 29 December 2008, a parliamentary election held in Bangladesh under the above named caretaker government. This time I also did campaign for [Witness C], Again our party faced rivalry with [Candidate A] This election mandated the Awami League to from the government. Our candidate failed to win the election.
6.     In 2011 I became an executive member of [Branch 1] Jubo dal and later in 2015, I became one of the vice president of the committee and in 2016 I became an executive member of the Thana committee Jubodal. My political progress became smooth, and I gradually became a target of the local Awami League activists.
7.     A number of occasions I was attacked by them, in 2016 and 2017.In April 2017 I came Australia from my company and returned home. When I returned home, after new years eve, the Awami League and the BNP made a program at the same place and same venue and police helped the Awami League to vandalized our meetings and processions.
8.     In the above incident. I was beaten mercilessly but there was another issue, they also filed a false case against me, My life was totally devastated and I spoke with my family and relatives they suggested me to leave the country, If I return home I will be persecuted. My life is not safe in Bangladesh, I left behind my two children and a wife in Bangladesh I am seeking status of refugee in respect to the above statement.
The applicant provided to the Tribunal the following Statutory Declaration dated 5 June 2018. While it is indicated that this was provided to the Department, it does not appear on the Departmental file relating to the applicant’s application:
1.   I provide following statement in support of my application for a protection visa correcting some information provided earlier. I provide correct information to my previous agent who speaks Bengali but what I said was mistakenly interpreted differently. I wish to correct it.
2.   In my statement in Para 6 the second sentence start with ' ... later in 2015 I became one of the vice president of the committee and in 20161 became and executive member of the Thana Committee Juboda/ should be deleted because I did not tell him this information to my previous agent but it was included in my statement.
3.   I provide following information regarding my political profile:
a.Joined Bangladesh Jatiotabadi Chatra Dal (JCD) when I was at [College 1].
b.In 1997- became the Vice President of the College Committee JCD.
c.2001 - I was selected to the post of Vice President of Jubo Dal of [Branch 1].
d.2001-2005- Vice President of Jubo Dal of [Branch 1].
e.2005- 2011- Member
f.2011- became an executive member and continued to hold the position until I left Bangladesh.
4.   There was a mistake regarding my attack which I correct it now. I told the correct events to the ex-agent but I had no idea why he did this mistake. I was physically attacked two times by the Awami League cadres who were affiliated with [Candidate A], Awami League leader.
a.[In] January 2016 when I was going to my office around 7.30 am at the [named] Bus station, I was confronted by the Awami League cadres who work with [Candidate A] (including [two people named]) and attacked me on my [specified body parts]. Due to the intervention of the people who were there at that time, I escaped from the attack. I then went to see a doctor.
b.[In] May 2017, same people who attacked me again confronted me when I was coming back from my office around 6.30 pm. They asked me to join with them at the tea stall and I refused to accept their offer and started running. They followed me and hit me. People in the vicinity protected me from the attack.
5.   In my form 866 B, Qs 3, it was mentioned that I have no charges or case in Bangladesh. It is wrong and I have a case which is a false politically motivated one.
6.   In my form 866 C Os 55 should be yes. I have a previous passport and the passport no is: [number]
7.   I came to Australia [in] April 2017 and returned to Bangladesh [later in] April 2017, I came with my other colleagues on short business trip and stayed only for 6 days and could not go out to enjoy the places in Australia. Therefore, I decided to come back again as a visitor. I came to Australia [in] July 2017 and at that time, I did not have any intention to apply for a protection visa. However, later in end July 2017 when my wife told me that the police visited the house for inquiry and was told that there was a case against me for some issues occurred on [a day in] April 2017. l told the wife it was a false case because on that day I was in Australia. My wife told that the police did not care and would not care because the Awami League people were instigating to file false case against BNP people with profile like me. After discussing with my wife and the family, I decided to apply for a protection visa and sought immigration assistance. I did not know any one and some Bengali people suggested me to seek assistance from [Agent A] as he charge lower fee. At that time I did not know that he is [involved with] the Awami League branch in [City 1, Australia]. In end April 2018, I attended the protests against Shiek Hasina in Sydney. On 06 May 2018, my ex-agent [Agent A] send [message]. [He] said he is [involved with the] Awami league [in City 1, Australia] and asked me to provide the details of the people who attended the protests. I got [angry]. When I learned that he is [involved with] the Awami League, I decided to terminate his service and sought Immigration assistance from Parish Patience Immigration Lawyers. During the meeting through an interpreter, l told them I did not have copy of the form and statement and explained my situation. They told that they would do a FOi to get all documents from the Immigration and will call me again to have a consultation. In the meantime, the Department called for an interview and my representative requested the FOi to release the files asap.
8.   Once I received the file, a Bengali interpreter at Parish Patience Immigration Lawyers read me the contents of the statement and the form in Bengali and gave me a copy as well where I found the errors which I am correcting now.
9.   In my form 866 B, Os 3, it was mentioned that I have no charges or case in Bangladesh. It is wrong and I have a case which is a false politically motivated one.
10. After coming to Australia, I continue to involve with BNP political activities under the guidance of Australia BNP leader named [Witness A].
11. I fear if I returned to Bangladesh I would face harm for the following reasons:
a.Due to my political opinion supporting the BNP.
b.Due to my political profile as a BNP leader.
c.Due to my political activities in Australia promoting BNP.
d.Due to my political opinion against the Awami League.
e.If I had to return (involuntary returnee) I would be identified as a failed asylum seeker and would be perceived as a person who would have provided information against the Awami league party and Sheikh Hasina's government based on my past and present political profile.
12. In [City 1, Australia], there is an active Awami League group in operation and they continue to monitor the activities of the BNP people in [City 1, Australia] and I fear there is a real possibility they would pass such information about BNP members and their activities to Bangladesh authorities.
13. I fear I can not get protection from the authorities because my enemies are the government led by the Awami League and they use RAB and other para military to target and kill BNP members.
14. Even if I move to other parts of the Country I would continue to face harm because I would continue to support the BNP.
15. Accordingly, I seek protection in Australia.
16. I confirm that the contents have been read and explained in Bengali.
Also provided to the Tribunal was the following Statutory Declaration dated 17 October 2022:
1.   I provide following statement in support of my application for a protection visa correcting some information provided earlier and in relation to my political activities in [City 1, Australia], Australia.
2.   My wife's name is [name] and my daughter's name is [name] and my son's name is [name].
3.   I started working in [a business 1] from June 2000 to March 2001.
4.   I arrived in Australia [in] July 2017.
5.   I actively involve with the Australian BNP and participated in the program organised by the BNP-Australia. Furthermore, I am an active on social platform ([social media]) expressing my political opinion supporting the BNP and also express my critical opinion against the Awami League. Being compassionate and a true supporter of BNP, I always share my views and support for BNP via my [social media] profile to portray the current leading party Awami League are involved with inappropriate political actions within the society.
6.   I am currently serving as the Member of [a group within] the BNP Australia Convening Committee.
7.   Since I came to Australia, I have been an active member of BNP. I have joined [in] September 2018.
8.   On 27 April 2018, I attended the protest against the Prime Minister, Sheikh Hasina in Darling Harbour, Sydney. Later in December 2018, my house in Bangladesh was under attack and robbed. In the course of that attack, the Awami League cadres maliciously damaged the fixtures inside my property in Bangladesh with dangerous weapons and taken away some of my electronic devices. After that incident, my family in Bangladesh is in fear for their life.
9.   I have also attended Begum Khaleda Zia's Birthday celebration on 21 August 2018.
10. In 2019, I have attended Lt. General Ziaur Rahman's 38th Martyrdom Anniversary here in Australia and took part in both the 41st Foundation Anniversary of BNP in 2019, followed by 42nd Anniversary in 2020.
11. On 7 November 2019, I was actively involved in the Sovereignty Day celebration of BNP in Sydney, Australia. One of my most influential activity was also in 2019, where I attended protest, demanding for unconditional release of Begum Khaleda Zia, followed by an official discussion program.
12. In 2020, I was actively involved with organising and attended the protest against unlawful activities of Awami League cadres, such as rape and sexual assaults within communities in Bangladesh. Moreover, I have also attended the protest for democratic Bangladesh in 2021.
13. I am actively involved with [Community Group 1] Australia since 2019 and I use to assist with their cultural fairs and events. On 26 December 2021, I got appointed as [a position] of [Community Group 1] in Australia. Since then, I regularly organise meetings and events for the [Community Group 1] and among all other events, I acted as an organizer for the [specified] celebration [in] 2022.
14. I was actively involved with the protests regarding the "Enforced Disappearance of Citizens" [in] August 2022 in [City 1, Australia].
15. Therefore, I request the Tribunal to consider my circumstances and seek protection visa for me to permanently stay in Australia.

The following documents were also provided to the Department:
·A letter dated 4 February 2018 from [an official] of the [named] Thana, Jubodol which indicates that the applicant has been known to the writer for about 10 years. It indicates that the applicant was a leading activist of the BNP. It indicates that before leaving Bangladesh, the applicant was the vice president of [Branch 1] [named] Jubo Dal and was an executive member of the Jubodal Thana committee. He participated in many demonstrations, which were considered ‘an eyesore’ by the Awami League, and he left the country to secure his life.
·A letter dated [June] 2018 from [Witness A], [Position 1] of the BNP Australia. The writer stated that he has known the applicant since 1996 when they were in Dhaka. The applicant arrived in Australia in July 2017. In Bangladesh he worked with the BNP on activities including the national election campaign, and several meetings and activities, under the umbrella of the mainstream party. The applicant continues to participate in BNP activities in [City 1, Australia]. The applicant participated in various anti-government rallies and demonstrations in Bangladesh. To the best of the writer’s knowledge, the applicant suffered as a result of severe violent acts committed by the ruling party and if he returns to Bangladesh his life could be in jeopardy. The letter attests to the applicant’s good character.
·A statement addressed to ‘The Officer-in-Charge, [of a named] Police Station’, indicating that the statement was filed at the Police Station on [a day in] April 2017 at 11:30pm. The statement is from [named] sub-inspector at the Police Station. The writer indicates that he and his team members were patrolling on [a day in] April 2017 and he received an order from the station to take immediate action at [a named location]. On arrival they saw a public bus and a private car burning. Many of the local vehicles were jammed and many people were injured. The team immediately brought the situation under control and informed operations about the occurrence. Injured people were sent to the nearby hospital. Physical evidence was collected. When the situation was under control, the writer left and tried to arrest the accused people who perpetrated the destruction and criminal activities, based on information from a police source. Accused individuals are listed after ‘absolute’ information is provided by eyewitnesses based on different police sources. There are four listed accused, with the applicant being the third person listed. There is then a reference to the accused, along with 30 or 40 unknown companions, taking part in ‘a political clash’ against the ruling party at 9:10am. The accused tried to cause destruction. One of them threw a cocktail bomb at the local bus. There were injuries. The accused damaged many vehicles, including the private car mentioned. The accused left ‘the place of occurrence’ and hid. There has been an operation to arrest the accused.
·An outpatient Bangladesh hospital record dated [in] January 2016 in relation to the applicant, which refers to blunt trauma to the [body part]. Reference is made to advice of a consultation with an orthopaedic consultant for further treatment.
·A picture of a number of individuals with a cake in front of a banner of the BNP Australia.
The following additional documents and photographs were provided to the Tribunal:
·Screenshots of the applicant’s social media posts from 2018 to 2019, showing several pictures of people in a gathering of what appears to be BNP meetings.
·Six separate lists of thematic sub-committees (Australia) of a BNP [specified] celebration. The applicant’s name appears on one of the lists as a member.
·Letter from [Witness C], [from a named] District BNP, dated 15 January 2022, which states that the applicant was an active member of BNP Jubo Dal at the union level. The applicant was elected vice president of [Branch 1] Jubo Dal in 2001. The applicant campaigned door to door and participated in demonstrations against the Awami League.
·Letter from [Witness A], [Position 1] for BNP Australia, dated [in] September 2022, which states that the applicant worked with the BNP in Bangladesh and Australia. The applicant participated in anti-government rallies and demonstrations. The author also states that to the best of his knowledge the applicant ‘suffered severe violent acts’ perpetrated by the ruling party activists. The author also provides a good character reference for the applicant.
·Letter from [Witness B], [Community Group 1] Australia, dated 27 September 2022, which states that the applicant is an active member of [Community Group 1] Australia.
·[Community Group 1] executive committee members for 2022-2024.
·Several photographs described as photo evidence of political activities from 2017 to 2020 and 2022. Some of the photographs have handwritten notes, which read: ‘Protest for Begum Khaleda Zia’s release – 2017’, ‘Protest for Begum Khaleda – 2017’, ‘40^th BNP Anniversary – 2018’, ‘Birthday Celebration for Begum Khaleda Zia – 2018’, ‘Birthday Celebration for Begum Khaleda Zia’, ‘sovereignty day event 2019’, ‘Sovereign Day event 2019’, ‘Zia-Ur-Rahman – 38^th Martyrdom Anniversary – 2019’, ‘41^st Anniversary of BNP – 2019’, ‘Protest against PM Sheikh Hasina – 2020’, ‘42^nd Anniversary of BNP – Celebration – 2020’, ‘[Community Group 1] Australia – Committee – Meeting 2020 regarding Annual Fair’, ‘44^th BNP anniversary event 2022’, ‘44^th BNP Anniversary – 2022’. Some pictures are not described, depicting men putting up posters, holding a banner, and in settings of what appear to be a gathering. There are pictures of a door lock, some items of personal property on a mattress, a cupboard door and the displacement of items consistent with the premises being robbed or vandalised.
·News article titled, ‘Australian Senator called upon utilising the Magnitsky Act: Victims of Enforced Disappearance remembered in [City 1, Australia]’, by Faroque Amin, September 2022. The article talks about a protest that happened in [City 1, Australia], NSW on 30 August 2022 in relation to the enforced disappearance of political leaders and activists, naming Bangladesh as the enforced disappearance capital of the world. Accompanying the article is a photograph of seven individuals holding a BNP banner relating to enforced disappearances. [Details deleted].
·Letter from [Mr A] dated [June] 2021, which states that the applicant and others were accused of a criminal offence in relation to a matter dated [in] April 2017, which was being investigated by police. The letter indicates that the applicant is [known to] the writer, and the identity card provided in relation to [Mr A] indicates that he is a member of the Dhaka Bar Association.
A submission is provided to the Department by the applicant’s lawyer dated 28 June 2018. It is submitted protection is owed on the basis of the applicant’s political opinion in support of the BNP. Reference is made to well-documented attacks on opponents of the current Awami League Government in Bangladesh, and it is stated that there is no option of relocation or effective protection from authorities. A significant number of internet links are provided, together with references to recent Tribunal decisions. Independent information is summarised, referring to political instability and harm suffered by individuals in political violence, and arrests and difficulties faced by opposition political activists. The detailed submissions include the assertion that active members of opposition political parties face a higher risk of arrest and physical violence.
A submission is provided on behalf of the applicant to the Tribunal in October 2022, with attached information concerning the situation in Bangladesh. Country information is submitted as demonstrating significant harm in Bangladesh suffered by those actively involved in the BNP, including human rights violations, extrajudicial killings, enforced disappearances and torture. It is indicated that the human rights situation in Bangladesh is deteriorating. It is submitted that the applicant’s political profile is significant, and that he is not a low-level member. It is submitted that the information demonstrates that anyone who is actively involved in political activities and campaigning for the BNP faces the risk of targeted violent attacks from Awami League cadres. A 24 March 2021 statement from Human Rights Watch is cited as establishing that Bangladeshi authorities have arrested hundreds of people, including children, for criticising or satirising the country’s ruling party and its leaders. An Amnesty International statement of 3 June 2021 is referred to, indicating that a Bangladeshi engineer was arrested for a Facebook post expressing his opinion. It is submitted that these statements establish that the Awami League uses its power to target people who express their opinions on social media.
Independent information sourced by the Tribunal
The 2019 DFAT report on Bangladesh provides the following information (underlining added):
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.[1]
…
Bangladesh Nationalist Party (BNP)
…
[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.[2]
…
[1] Ibid pp. 24-25, paras [3.61] – [3.62].
[2] Ibid p. 27, paras [3.80] – [3.82].
PREVALENCE OF FRAUD
[5.39] The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.
[5.40] It is common for Bangladeshis to acquire documents through an agent, or ‘middleman’. This individual will make an application for documents on behalf of the person that has requested them, a process which may be subject to fraud. It is therefore possible that the person seeking the document does not know that their documents are fraudulent. The risk involved with the use of middlemen may be unavoidable, as some sources report that it is not possible to get documents without the use of such an agent.
[5.41] Passport fraud is a particularly common type of fraud, given many Bangladeshis travel or are trafficked abroad in order to get work. DFAT is aware of Rohingya obtaining genuine Bangladeshi passports by fraudulent means, such as paying bribes. Once these passports expire they cannot be renewed, which has led to some high profile cases of stateless people abroad unable to return, or being arrested or detained by Bangladeshi authorities upon return. Some Bangladeshis reportedly try to leave on fraudulent passports via India, where the bona fides of the passport are more difficult to check. These travellers may be detected by Indian immigration at inward or outward borders. Bangladeshi immigration officers at the border may lack the skills and expertise to identify fraudulent documents on entry or exit. Attempting to obtain a genuine passport without corruption can be difficult as each step of obtaining documents may require bribes. For example, obtaining a passport might require a police certificate, which could require a bribe. A fraudulent document can be more easily detected than a fraudulently obtained genuine document.
[5.42] Fraudulent NICs are harder to produce as they contain a plastic chip with biometric information embedded. A genuine, but fraudulently obtained document may contain some correct biometric information. Authorities can also check NICs on a national database, which may provide some protection against 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.
[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.[3]
[3] Ibid pp.51-52, paras [5.39] – [5.44].
The Tribunal notes the following recent relevant information contained in the report by the Country of Origin Information Services Section of the Department of Home Affairs, Common Claims – Bangladesh effective from 5 May 2022 (footnotes omitted):
Main opposition party members
The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties, using security forces to target its opponents. Social organisations that are close to the government are allowed to operate freely whereas those organisations which are associated with the opposition parties are prevented from implementing programs that are critical of the government. Police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances , torture and extra-judicial killings have become more common. It is estimated that 610 persons have disappeared since the AL came to office in 2009. While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found.
The US government imposed sanctions on the RAB. The August 2021, Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances. Aaccording to human rights organisations in the countrythe, Rapid Action Battalion (RAB) is responsible for more enforced disappearances in Bangladesh than any other unit. Human Rights Watch creates a webpage tracking and profiling the cases of 86 victims in Bangladesh who were forcibly disappeared and who remain missing. On 10 December 2021, the US Treasury Department imposed sanctions under the Global Magnitsky Human Rights Accountability Act on the RAB and several of its current and former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances. Since the sanctions, the RAB and National Security Intelligence (NSI) have been reportedly making threatening phone calls to victims and human rights defenders and their families, summoning them to their local offices, and visiting their workplaces and homes in the middle of the night.
Mass arrests of opposition members are also used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters – both BNP and JI – are not uncommon, and appear to be used as tools of intimidation against political opposition groups. Arrests often occur in the context of demonstrations. In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations. Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections. More than 4,500 BNP members were arrested on ‘trumped-up charges’. Mass arrests have also been used to suppress demonstrations by workers in the garment manufacturing industry. In its April to June 2021 report, Odhikar states that police arrested and detained 1230 opposition leaders and activists, including members of Hefazat-e-Islam, and another 53 leaders and activists of the Bangladesh Students, Youth and Labor Rights Council were also arrested and taken into remand through court, for holding rallies against Indian PM Modi’s arrival in Bangladesh.
The AL uses the courts and legal processes to suppress opponents. Fictitious charges are often laid against AL opponents. Trumped-up charges relating to corruption, publishing ‘false information’, pornography, instigating violence and vandalism are frequently used against political opponents. The Anti-Corruption Commission established in 2004 has targeted opposition parties, bureaucrats and officials and avoided investigating and persecuting ruling-party politicians accused of corruption. The ACC filed 262 cases in 2019, with submission of 267 charge sheets to various courts, but the conviction rate on cases stood at 63%, and these cases did not involve high-profile politicians or public officials. Between 2014 and until mid-2018, the Hasina government filed an estimated 78,000 cases against the entire rank and file of the BNP, which party leaders claim left some 1.8 million BNP workers and office-bearers charged, arrested or forced into exile. The Economist places the number of targeted BNP workers even higher, stating that lawsuits entangled some 2.5 million party workers in endless litigation. Opposition leader Khaleda Zia was convicted on corruption charges in February 2018 and imprisoned. Zia has been accused in a total of 37 cases, convicted in two (Zia Orphanage and Zia Charitable) cases, and is on bail in the remaining 35 cases. In March 2020, Khaleda Zia was granted a suspended jail sentence on the condition that she cannot travel abroad, as she still has more than two dozen other charges filed against her in recent years by the government. This was again extended in March 2022. Zia’s self-exiled son, Tarique Rahman, was given a life sentence in absentia in October 2018, for involvement in a 2004 assassination attempt on Sheikh Hasina. On 3 July 2020, the court sentenced nine men to death and 25 men to life imprisonment, who were all BNP members, for a 1994 attack on a train carrying Prime Minister Sheikh Hasina, who was at the time the leader of the opposition party.
Ordinary members of the BNP face a low risk of politically motivated violence but moderate levels of harassment from AL students. AL-BNP inter-party violence has declined since 2014, during which authorities reportedly responded to BNP street violence with torture, illegal detentions and extra-judicial killings of leaders and activists. During 2019, 4 incidents of AL-BNP clashes were reported that left 57 persons injured (compared to 26 clashes reported in 2017 that left 314 persons injured and one dead). The potential for inter-party violent incidents involving the BNP has declined after it was completely routed at the 2018 national elections. There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019, 2020 and 2021.
Hearing, credibility, findings, and assessment

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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.
In response to questions in the hearing as to aspects of his claims, the applicant gave evidence that was detailed and consistent with little hesitation, and in a manner that persuaded the Tribunal that he was recounting truthful events. The evidence that can be characterised in this way included details of his political involvement with the BNP after leaving college and evidence of him being physically attacked in January 2016 and May 2017. In relation to the claimed attacks, the applicant gave evidence of the attacks being perpetrated by three individuals he knew who were associated with the Awami League. The applicant referred to, consistent with medical reports provided, him being hospitalised with an injury to the [body part].
In relation to the applicant’s political activities, the Tribunal asked him whether he had participated in public protests. The applicant indicated that he had, on numerous occasions, and estimated that there might be eight to 10 protests per year concerning a number of political issues. There would be many opposition supporters involved in the protests. The applicant was asked whether the protests were disrupted by police/authorities. The applicant indicated that some of the protests were. The Tribunal asked whether the applicant was harmed in the protests. The applicant indicated that the extent of the harm that he suffered was being pushed. However, he indicated that others in the protest suffered more direct physical harm from authorities. The Tribunal asked the applicant if any individuals were killed by authorities in any of the protests that he engaged in. The applicant said that to his knowledge there had not been any killings.
The way that the applicant gave this evidence as to his participation in protests persuaded the Tribunal that he was recounting protests that he was actually involved in. The applicant did not seek to embellish the nature of physical harm that he himself suffered. Independent evidence makes clear that under the rule of the Awami League, authorities would disrupt and harm individuals involved in opposition political protests in Bangladesh.
As indicated, [Witness C] gave evidence in the hearing by phone from Bangladesh. He confirmed that he was previously a Member of Parliament from 2001 to 2006. He is currently [an office bearer] of the [named] division of the BNP. He indicated that he has known the applicant since about 2001 and corroborated the applicant’s claimed political involvement in the BNP from that point in time. He indicated that the applicant put considerable efforts into the party. He broadly corroborated the applicant’s claims and gave evidence consistent with his written letter of support.
As indicated, [Witness A] and [Witness B] gave evidence in the hearing in person. The former is the [Position 1] of the BNP Australia. He gave evidence of the applicant’s involvement in the BNP Australia consistent with his written statement. He has known the applicant since 2018. [Witness B] indicated that he is President of [Community Group 3], which is a Bangladeshi social, not a political, organisation. He gave evidence of the applicant’s involvement with the Forum.
The applicant’s evidence as to his political activities in Australia for the BNP Australia was credible and corroborated by witnesses. As indicated, the applicant’s evidence as to his political involvement from 2001 and the attacks he suffered in Bangladesh from individuals associated with the Awami League was convincing and credible to the Tribunal.
The Tribunal questioned the applicant about the fact that he claimed to have been physically attacked by the Awami League in January 2016, and his indication in the hearing that at various points after this he had gone into hiding, but did not take the opportunity to apply for a protection visa on his first visit to Australia in April 2017. The Tribunal asked the applicant what prompted his decision to apply for the protection visa in August 2017. In response, the applicant indicated that he had a good life in Bangladesh and the two physical attacks did not in themselves prompt him to seek protection in Australia. However, the catalyst for his decision was when the police and Awami League came to the home of his family in Bangladesh in July 2018 in relation to allegations of criminal behaviour by the applicant occurring [in] April 2017. He was told this by his wife.
The applicant indicated that he could not have been responsible for the claimed events because he was in Australia on that date. However, the fact of the allegations raised the applicant’s fear to a new level in terms of the power of the state to take adverse action in relation to him. It was at this point that he decided to seek protection.
The applicant indicated that when he heard about the approach by police to his family, he got the name of a lawyer in Bangladesh who he contacted. Notwithstanding that the applicant would have evidence that he was not in Bangladesh in time, the lawyer has advised that he needs to be in Bangladesh in person to defend the charges and to provide this explanation. It was his lawyer who obtained the police report in relation to the charges.
There was reasonable consistency and overall credibility in these claims made by the applicant.
However, the Tribunal has credibility concerns about aspects of the applicant’s evidence.
The applicant has claimed that he attended college [between specified years], where he was politically active in the student wing of the BNP. The applicant in hearing provided some detail of his political involvement during this period. The Tribunal asked the applicant for details of his study during this period. The applicant indicated that he was studying humanities/arts progressing towards passing the higher school certificate (HSC). The applicant indicated that ultimately, he did not manage to pass the HSC. The Tribunal asked the applicant what specific humanities subjects he studied. There was hesitancy and prevarication by the applicant in response. Eventually, the applicant said that he was studying history. The Tribunal asked the applicant what aspect and time period of history he studied. The applicant was not able to respond. Nor was the applicant able to respond to a question as to other more specific humanities subjects he was studying. After a long pause, the applicant indicated that he was stressed and confused.
The Tribunal has concerns regarding the inability of the applicant in the hearing to articulate in any meaningful detail courses studied over a four to five year period in college.
The Tribunal also noted to the applicant in the hearing that in his application form for the protection visa, in the section concerning employment details, he states that from 1995 until March 2001, he worked for a [business 1] called [Employer 1]. This could suggest that the applicant was not in college studying during this period. In response, the applicant indicated that this information was wrongly provided by his former migration agent.
The Tribunal asked the applicant about various places he has lived in Bangladesh, including with his family. Whilst there was initial confusion in the hearing in relation to this evidence, the applicant eventually indicated that two to three months before he came to Australia, he and his wife and children moved out of the family home where they had lived with his parents, and moved to another home in the same village, which the applicant had built. The applicant left this home to come to Australia. Prior to that, he had been living at his parents’ home from birth, apart from a period when he attended high school some distance away.
The Tribunal put to the applicant that this was not consistent with his evidence in the interview with the delegate that he had moved with his family on three occasions to different premises to escape the political issues he was facing. In response, the applicant indicated that he, but not his family, moved on two different occasions to escape the difficulties, once for 10 days and on another occasion for 15 days.
However, later in the applicant’s evidence he indicated that after the attack that occurred in January 2016, he would sometimes move away from home for a day or so at a time. He gave evidence that the reason for relocation was because Awami League cadres would be seen in the local area, although they did not approach the applicant’s home directly.
The Tribunal noted to the applicant that this still remains inconsistent with claims that the applicant moved with his family on three separate occasions.
The Tribunal also noted to the applicant that none of his reasonably detailed written claims make mention of him having to relocate on multiple occasions. In response, the applicant indicated that he should have stated this.
The applicant in the hearing also indicated that Awami League individuals had visited the family home when the applicant was still in Bangladesh on approximately four occasions. When asked to clarify, the applicant indicated that he was not at home on any of those occasions.
The Tribunal also notes that claims to this effect are not made in any of the applicant’s written claims.
The applicant also gave evidence that after the claimed ransacking of his wife and children’s home in 2018, his wife and family abandoned the premises and subsequently relocated on eight or 10 occasions to escape problems from the Awami League as a result of the applicant’s political allegiance and activities. The Tribunal put to the applicant plausibility concerns about his wife moving so frequently and asked the applicant what would cause them to move. The applicant indicated that the moves would occur when Awami League cadres would be seen in the vicinity of where the family were dwelling. When asked to clarify, the applicant indicated that these individuals would not directly approach his family and/or the home.
The Tribunal indicated to the applicant its plausibility concerns about whether, absent direct encounters with individuals from the Awami League, his wife and children would move so frequently. In response, the applicant said that the main safety concern relates to their daughter, and this is the main rationale behind relocating.
The Tribunal gave the applicant a period following the hearing to provide written submissions on the credibility issues raised with the applicant during the course of the hearing.
In response, the applicant provided a Statutory Declaration dated 7 November 2022. It reiterates the applicant’s involvement in the BNP both in Bangladesh and Australia and notes the corroborating evidence of [Witness C]. Additional independent information is provided concerning attacks and arrests in Bangladesh targeting the BNP.
In relation to the applicant’s studies, it is indicated that he is unable to get college enrolment documents. However, a supporting statement is provided from someone who claims to be one of the applicant’s college friends who studied with him at the same time.
The declaration does not make any comment in relation to other credibility concerns indicated above.
The Tribunal assesses the applicant’s various claims in light of the foregoing.
The Tribunal is satisfied that the applicant was significantly involved, as claimed, in the BNP, at least from 2001. The Tribunal is satisfied that the applicant took part regularly in protests. Although he was not seriously physically harmed in protests, the Tribunal accepts that others who participated were. The Tribunal also accepts that the applicant was physically attacked by individuals from the Awami League in January 2016 and May 2017. The Tribunal is satisfied, based on the overall credibility of the applicant’s claims and the corroborative medical evidence, that the applicant was treated for [a specified] trauma after the January 2016 incident. The applicant’s claims in these respects are also quite consistent with independent evidence, which indicates that there can be adverse treatment of BNP members by the ruling authorities.
The Tribunal is also satisfied, based on all of the evidence, that the applicant has had charges laid against him by authorities in Bangladesh. Independent evidence makes clear the significant use by authorities of false criminal charges against opposition political party members. The Tribunal is satisfied that the charges are concocted charges based on clear evidence that the applicant was in Australia when the criminal conduct by him was said to occur.
The Tribunal now turns to claims made by the applicant which the Tribunal is not satisfied of. On the evidence, the Tribunal is not satisfied that after the attack in 2016, the applicant relocated on a number of occasions from his family home to different locations out of fear of the Awami League. The Tribunal is not satisfied that there was an attack on his wife and children’s home in 2018 that caused them to leave the premises and relocate to eight to 10 different locations because of fear of the Awami League.
However, despite the Tribunal not accepting these claims and the credibility concerns surrounding them, the Tribunal remains satisfied that the applicant has been significantly involved in the BNP in both Bangladesh and in Australia. As indicated, the Tribunal is satisfied that the applicant was physically assaulted by Awami League individuals in 2016 and 2017 requiring, after the first assault, hospital treatment. The Tribunal is satisfied that false criminal allegations have been made against the applicant in Bangladesh, and that these charges remain outstanding. The Tribunal is satisfied that the applicant would wish, on return to Bangladesh, to be politically involved in the BNP, including attending protests.
The Tribunal is satisfied that there is a real chance of the applicant facing serious harm as a result of, cumulatively considered, his ongoing desire to be significantly politically active in the BNP on return, combined with the potential for prosecution on false criminal charges. The Tribunal considers that the risk of physical harm to the applicant is demonstrated by the two instances of the applicant previously suffering physical harm from political adversaries. The Tribunal also considers that the prosecution of false criminal charges amounts to serious harm when considered cumulatively with the risk of physical harm. The Tribunal also considers that the risk of physical harm is compounded for the applicant as a result of what it accepts is his ongoing intention to participate in opposition political party protests in Bangladesh. The Tribunal accepts that independent evidence establishes that authorities in Bangladesh take harmful physical action against opposition protesters.
The Tribunal considers that the essential and significant reason for the serious harm that the applicant has a real chance of facing is the applicant’s political opinion in support of the BNP. The Tribunal considers that the real risk of harm that the applicant faces is systematic and discriminatory.
The Tribunal considers that the applicant would wish to be politically active wherever he might live in Bangladesh, thus the risk he faces based on political activity would follow him throughout Bangladesh. The Tribunal also considers that the risk of being prosecuted on false criminal charges remains for the applicant wherever he might live in Bangladesh. For these reasons, the Tribunal considers that the real chance of serious harm relates to all parts of Bangladesh and that the applicant cannot relocate to avoid harm.
As the risk of harm is from either the political or law enforcement wings of the Bangladeshi Government, the Tribunal is not satisfied that the applicant can seek effective protection from the authorities.
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
For these reasons, the Tribunal satisfied that the applicant faces a real chance of serious harm for the reasons claimed. The Tribunal is satisfied that there is a well-founded fear of persecution for a reason set out in s 5J(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
David McCulloch
Member

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

[2022] AATA 4804

18 November 2022

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