1825914 (Refugee)

1825914 (Refugee) [2023] AATA 1198 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)
CASE NUMBERS:  1825914, 1905286 & 2115322
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Meena Sripathy
DATE:2 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 02 March 2023 at 4:23pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – supporter of the Bangladesh National Party – fears harm from members of the opposing political party, Awami League – low level BNP supporter – murder charge – applicant has no ongoing BNP profile – no outstanding cases or charges against him – a failed asylum seeker returnee – applicant had provided conflicting, inconsistent and contradictory information over time – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 411, 424, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo & Anor (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

These are applications for review of two decisions made by a delegate of the Minister for Home Affairs on 2 May 2016 (the first protection visa application) and 6 October 2021 (the second protection visa application) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Procedural history
The procedural history to these cases now before the Tribunal is as follows.
According to Departmental records, the applicant who claims to be a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] October 2012. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 8 May 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, where the Court held that the Temporary Safe Haven visa grants in the Ashmore affected cases were invalid, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 7 August 2015. That application was not subject to the s 91K bar and was a valid application. On 1 October 2020, the Minister purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise visa on 11 October 2020 which was also valid.
The first protection application was refused by the delegate on 2 May 2016. The delegate refused to grant this visa on the basis that that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. The matter was referred to the Independent Assessment Authority as the applicant at that time was considered to be a fast-track review applicant and the IAA affirmed the decision to refuse the application on 26 May 2016. The applicant commenced judicial review proceedings against the IAA decision in June 2016. [In] August 2018, following the Full Federal Court judgment in DBB16 v MIBP, the Federal Circuit Court made declaratory orders of the same effect, that the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’. On 5 September 2018 the applicant applied for review of the refusal decision to the Tribunal. This is AAT case reference 1825914.
On 20 February 2019, following a new notification of the same decision by the Department, a further application for review of that refusal decision was made to the Tribunal on 6 March 2019. This is AAT case reference 1905286.
The second application for a Safe Haven Enterprise visa on 11 October 2020 was refused by the delegate on 6 October 2021. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 29 October 2021. This is AAT case reference 2115322.
The applicant appeared before the Tribunal on 8 November 2022 to give evidence and present arguments. The applicant was advised that the hearings for the three AAT cases (involving two protection visa applications) would be combined in the hearing invitation, and this was explained at hearing: he did not indicate any issues with this approach (nor did his representative – who is the same for all cases). 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 issues in these cases are whether there is a real chance, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, that he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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) (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, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on Bangladesh was issued on 30 November 2022. The Tribunal also had regard to previous DFAT reports among other information.
CONSIDERATION OF Claims and evidence
Background
The applicant was born in Barisal, Bangladesh in [year] and is now [age] years of age. He claims to be a Bangladesh citizen and provided a birth certificate and nationality certificate and secondary school certificate in support of his identity and nationality. He claims to be of [Country 2] ethnicity and Muslim. He has parents [and siblings], all living in Bangladesh, though subsequently in his oral evidence he claimed his brothers are no longer living in Bangladesh. He indicates he is in phone contact with his family. He indicates an address in Barisal from birth to 2007 and an address in [Country 1] from 2007 to September 2012. At different times in his evidence, he indicated a return to Bangladesh in 2009 or 2010. The applicant variously claimed he last departed Bangladesh in January or December 2011 and arrived in Australia by boat in October 2012. He was granted a Temporary Safe Haven Subclass 449 visa and a Bridging visa E on 8 May 2013. In Australia he indicates one address from 2013 to 2018 in [Suburb 1], NSW and from July 2018 in [Suburb 2], NSW and has been unemployed, and employed in [a certain industry] at various times in Australia. He worked in [another] industry in [Country 1]. In Bangladesh he worked in agriculture. He is educated to secondary school certificate level only, withdrawing prior to completing his higher secondary school certificate.
Protection Claims
First Protection visa application (August 2015)
In response to questions in the application form about his reasons for seeking protection the applicant referred to a written statement dated 8 July 2015 submitted with the application, which provided the following information:
·He fears serious harm if returned to Bangladesh because of his political affiliation with the Bangladesh Nationalist Party (BNP). He fears this harm from members of the opposing political party, Awami League.
·He joined the BNP when he commenced college in 2003. He regularly attended political meetings where members would engage in policy discussions, which were constantly interrupted by Awami League members. The members would intrude on meetings and physically attack him and his political colleagues.
·In 2004 he ceased attending college because of this violence and began working with his elder brother who is also a member of the BNP. He maintained accounts and attended to general housekeeping for his brother’s retail shop and [business].
·In around October 2005, while travelling to Barisal CBD he was stopped by members of the Awami League who demanded, and took, his bicycle.
·In around 2007, 10-12 members of the Awami League forcibly took money from the cash register of his brother’s retail shop while they were working there. At this time members of the Awami League were also calling him at home and demanding more money or they would kill him.
·Because of these threats he decided to leave Bangladesh for [Country 1] in 2007. He remained in [Country 1] from 2007-2009 and worked for different employers.
·He returned to Bangladesh in 2009 because he was homesick and thought with the passage of time the political situation may have settled. However, immediately upon his return he began encountering similar violence again with Awami League members entering his brother’s shop and demanding money.
·In 2010 he and his brother were physically attacked by Awami League members, and he injured his [ear] and was hospitalised.
·In 2010 members of the Awami League alleged that he kidnapped and murdered a prominent BNP member. He understood police were considering charging him with these offences, even though the allegations were wholly false. He believes further allegations were made that he and his brother had misappropriated funds from business colleagues.
·The applicant was concerned by the fabricated charges and decided to flee from Barisal. He was assisted by relatives and friends to hide in Dhaka and Chittagong between June 2010 and December 2011.
·He then decided to flee from Bangladesh in December 2011, first to [a country] and then to [Country 1]. He was in [Country 1] until October 2012 and then came to Australia.
·The applicant fears harm from the Awami League members on the basis that he has already experienced repeated threats and incidents of violence from 2004 to 2007 and from 2009-2011. He does not believe he can be protected by anyone, including authorities because the Awami League are the governing political party. He does not believe he can relocate to another city because the Awami League are very organised with active members all over the country.
·The applicant claimed his passport is with the employer he last worked with in [Country 1], [Company 1], who refused to return it to him.
The applicant participated in an Identity Interview on 18 February 2013. A copy of the audio recording of this interview is included in the material provided to the Tribunal. At this interview the applicant referred to a political case being made against him which led him to go to [Country 1]. He indicated it was a murder case, of a person in his political party who was killed by the opposition party and a false case was fabricated against him. He asked if he needed to provide supporting evidence and was told if he had anything, including with his name, he should provide it.
Following this, in March 2013, the applicant submitted to the Department various documents in English comprising statements and First Information Reports and Court documents purporting to relate to incidents in Bangladesh in 2010. These are included in the material provided to the Tribunal.[1]
[1] [Deleted]
On 25 September 2015 the applicant attended a protection visa interview with an officer of the Department. An audio recording of this interview is included in the Department file provided to the Tribunal. The applicant provided the following additional information at the Department interview:
·Members of the Awami League demanded forced donations from his brother, and when he refused to give money, they beat him and looted his shop, leading to the shop in the town closing in 2005. The Awami League then started to target the family’s other business in the village area.
·The applicant left for [Country 1] in 2007 because it was difficult to run the business. While he was in [Country 1], they continued to demand donations and once beat his father for refusing to pay.
·The problems for them started after his brother [Mr A] got involved in politics. He wanted to run for the BNP in around 2006 or 2007. The Awami League person in their area [was] opposed to him.
·In May 2010, when he returned from [Country 1], he was attacked while working in the shop with his brother. His ear was injured in that attack. After that he was scared and did not stay at home.
·Also in 2010, a local person known to his brother, [Mr B] was murdered. The Awami League forced [Mr B]’s family to blame the applicant and his brother. They did this because they were not paying them money. His brother was arrested by the police, and they tortured and cut his vein. The applicant was scared and went back to [Country 1]. His brother was eventually released on bail but then he escaped, and the applicant does not know where he is.
·The delegate discussed the First Information Report and associated statements and court documents provided by the applicant to the Department, putting to him that they appeared to be poor translations in English. The delegate asked the applicant if he had any other documents relating to court proceedings if there were any. The applicant indicated that he would obtain more documents about the charges and court matter and provide it following the interview. No further documents were received.
On 2 May 2016 a delegate of the Minister refused the application, finding that the applicant does not meet the definition of refugee in s5H because the delegate did not accept the applicant’s claims that he was a member of the BNP or that he was ever threatened or attacked by members of the Awami League due to affiliation with the BNP, or that he was ever falsely charged with murder due to affiliation with the BNP. The delegate referred to inconsistencies in the information he provided to the Department at different times and also the vague and evasive responses at interview. The delegate was also not satisfied the applicant faced real risk of significant harm as required by s36(2)(aa).
On 26 May 2016 the refusal was affirmed in a decision of the Immigration Assessment Authority. A copy of the IAA decision is included in the documents provided to the Tribunal and the Tribunal observes that no new information was provided to, or obtained by, the IAA in that process.
Second Protection visa application (October 2020)
The applicant submitted the same written Statement of claims dated 8 July 2015 with his application for a protection visa lodged on 11 October 2020. No additional information or evidence was submitted.
On 11 August 2021 the applicant attended a protection visa interview with an officer of the Department. An audio recording of this interview is included in the Department file provided to the Tribunal. The applicant provided the following additional information at the Department interview:
·     He departed Bangladesh for [Country 1] in 2007 on a three year work visa. He went there to work and earn money. He renewed this in 2010 and it was valid until 2011, after that he came to Australia.
·     Neither of his brothers live in Bangladesh. One brother went to [Country 2] in 2011 and the other one has been in [Country 3] since 2009.
·      He learned about the murder case relating to [Mr B] when he was in [Country 1] in February or March 2010. He returned to Bangladesh anyway because he thought he could not be accused as he was not in the country at that time. The Awami League people had his name added as the third name on the charges so when he returned the police came looking for him and he had to go into hiding. His brother was arrested and jailed for 6 months, before he was able to get released on bail. Then he escaped and left the country. The applicant said there is a document evidencing his conditional release which he can provide.
·      The applicant went into hiding in Dhaka and then left for [Country 1]. He was able to leave the country by bribing someone at the airport.
·     The applicant said he was active in BNP politics for about 4 years after [a grade] at school. He stopped because they were always attacked. He was injured in one ear and after that he stopped his involvement. Because of the harassment and attacks by Awami League they could not run their businesses and he decided to leave the country.

On 6 October 2021 a delegate of the Minister refused the application. The delegate rejected the applicant’s claims that he was a member of the BNP or had any BNP affiliation in Bangladesh on the basis of his inconsistent information to the Department in various interviews and written claims. The delegate also rejected his claims about the court case against him, on the basis of his unconvincing and inconsistent evidence, and gave no weight to the supporting documents submitted relating to this claim. The delegate found the applicant’s evidence about his brothers’ whereabouts unreliable. On the basis of these findings the delegate found the applicant’s claims were not credible and he had no subjective fear of harm in Bangladesh. The delegate was not satisfied the applicant faces a real chance of serious harm in Bangladesh and therefore does not meet the definition of refugee in s5H. The delegate was also not satisfied the applicant faced real risk of significant harm as required by s36(2)(aa).
Evidence before the Tribunal
On 7 September 2018 the Tribunal received a Statutory Declaration by the applicant dated the same day providing the following new information in relation to his protection claims. The applicant declared that on 12 August 2018 his father told him that two police officers came to their house in relation to the ongoing court case against him and his brother in Bangladesh, in respect of which he has provided supporting evidence previously. They asked about their whereabouts and threatened his father, referring to a further arrest warrant issued against him and his brother. His father informed him that since 2012 the police have regularly been coming to the family house inquiring about him.
Evidence at hearing 8 November 2022
The applicant confirmed at the outset of the hearing that his first SHEV application and Statutory Declaration of 8 July 2015 was prepared with assistance from RACS Legal Clinic, the Statutory Declaration was read back to him. He confirmed that in his second SHEV application he attached the same statement of claims, and he had no changes or additions to make. He confirmed that the only evidence he has provided to the Tribunal since his review applications were made is the Statutory Declaration dated 7 September 2018.
The applicant is currently living in share accommodation in [Suburb 2] with four other people. Prior to this he lived at another address, also in [Suburb 2] with different people. He is not presently working but has worked in [two industries] on and off since he arrived in Australia. He has supported himself here from income from employment. He occasionally sends money home when requested by his family, but not on a regular basis.
The applicant has no family in Australia. His family overseas comprises [siblings], his parents are deceased. His mother died in 2010, and his father died in early 2016, both from natural causes, illness. His eldest brother, [Mr C], lives in [Country 3], first went in around 2010 then he returned to Bangladesh after his father died in 2016, stayed for 5-6 months, and returned to live in [Country 3] in 2016. He works in a [job]. He is married and has three children. His wife and children live in Bangladesh and he has regularly returned to visit them. His two sisters are married and live with their husbands or in laws and children in Barisal District. Later when asked about their husbands’ work, the applicant said his sister [is] a widow. His [sister’s] husband is a businessman, with a few shops and a [business]. The applicant is not sure where his brother [Mr A] is now. There was an issue about a court case and his brother is in hiding because of this. The applicant said he last had contact with him in 2010 and not since then. He said no other member of the family is in contact with him either. The applicant is in regular monthly contact with his other family members. They are all okay and have no issues.
The Tribunal put to the applicant he has given different evidence about his brother’s whereabouts to the Department previously. He told Department officers in his arrival and identity interviews that they lived in Bangladesh, and also indicated this in both his SHEV applications. Later in Department interviews he said [Mr C] is in [Country 3] and [Mr A] is in [Country 2] since 2012. It invited his comment on these inconsistencies. He said they did not know exactly where his brother [Mr A] is and just heard things from other people.
The Tribunal asked the applicant where he lived prior to coming to Australia. He said he lived in [Country 1]. He first went to [Country 1] in 2007 and was there until 2009, when he returned to Bangladesh and started to help his brother [Mr A] with the family businesses. They had several shops and a [business]. But people were demanding money from them and fights would regularly break out. He was hit by these people and he has injuries from this. There was a murder. At this point the Tribunal stopped the applicant and told him it would explore these claims with him a bit later.
The Tribunal asked why he left Bangladesh in 2007 for [Country 1]. He said the situation in Bangladesh was not good. There was a lot of political fighting going on and he was unable to earn a living. He went to [Country 1] for work. He had a work visa while there. But after 2 years he decided to come back to Bangladesh because he was not comfortable in [Country 1], he did not like it there.
He returned to [Country 1] from Bangladesh in December 2011 and then stayed there until he commenced the journey to Australia in October 2012. The second time he went to [Country 1] he had no work visa. He worked but it was not legal. He travelled to [Country 1] by plane, using his own passport, but with the help of a broker. The Tribunal asked if he had any issues departing Bangladesh on either occasion using his own passport. He said he had problems in Bangladesh, which is the reason he initially left, but he didn’t have problems leaving, though that may have been because he used a broker who may have paid someone.
The Tribunal asked the applicant where his passport is now. He said he left it in [Country 1] at his accommodation. The Tribunal noted he previously stated (in his statement) that it was with [Company 1], his previous employer. The applicant said that is not correct. He left it at his accommodation because he knew he was coming by boat to Australia and did not need his passport. The Tribunal noted that his evidence today is inconsistent and different in numerous aspects to evidence given previously and this may contribute to concerns about the reliability and truthfulness of his evidence. In response the applicant said the first interview with the Department was days after his difficult 10 day boat journey and he was very exhausted and confused and was unable to answer questions properly. The applicant confirmed he has no current passport.
The Tribunal asked the applicant why he was seeking protection. He said he has a problem in Bangladesh and his life is at risk. In June 2010 there was a murder and they put his name and his brother’s name in an allegation about it. If he returns to Bangladesh the police will put him in jail and the Awami League (AL) will kill him for revenge. The applicant explained that a person named [Mr B], who is a friend and business associate of his brother’s and an AL person, was kidnapped and later found to be killed. He had a [farm] like the applicant’s brother, and they often sought advice and helped each other. They were on good terms. The applicant’s family are affiliated with the BNP and when this person, who is affiliated with the AL died, the AL sought to blame the applicant and his brother for it. The applicant confirmed he was in Bangladesh when this incident occurred, but they were not responsible. When asked why they were blamed, he said the AL people wanted to supress them because they have businesses, and they are BNP supporters.
The Tribunal asked the applicant about his activities in support of the BNP. He said he participated in meetings and processions. When asked when he did this, he said he was involved when he was in college. During this period the AL and BNP were both active and he chose to follow the BNP. When asked to explain more about this he said he liked them because they were more peaceful compared to the AL who were always fighting. Also, his family traditionally followed the BNP. The applicant referred to an MP in his area [who] was a BNP member that he supported. He then said he did not vote in this election because he was not enrolled to vote and had no voter ID card so was not on the voter list. He just participated in the meetings. The applicant explained that in 2007 he went to [Country 1] because of all the fighting which he did not like. He said he also left college in 2003 because of the fighting and started to work for his brother. But then the AL would demand money from them and cause problems and for this reason he left for [Country 1].
The Tribunal asked the applicant what happened to the family businesses. He said they are no longer operating because there is no one left in the country to run them. When he went to [Country 1] in 2007 his brother [Mr A] continued to run the businesses. The problems were ongoing then, with demands for money and fights breaking out. The Tribunal asked the applicant why he then returned. He said he returned because he did not like it in [Country 1], it was a hard life, and he was not earning enough money. He had problems with the Tamil people there. He would get robbed sometimes. Once they took his bicycle and his phone. This happened in end of 2008.
The Tribunal noted that in his written statement, he referred to having his bicycle stolen from him in Bangladesh in 2005 but now he is saying this incident happened in [Country 1]. This may lead the Tribunal to have concerns about the reliability or veracity of his written claims. In response the applicant said he mentioned this because he was asked what happened to him in [Country 1].
The Tribunal put to him that his conduct returning to Bangladesh from [Country 1] suggests he was not in fear for his life at this time. In response he said life was hard in [Country 1], he has no security, it was dangerous. It was also hard for him to live without his family. At that time his parents were both still alive.
After that he returned to work with his brother and was also involved in BNP politics, attending meetings and processions. The AL would attack their businesses. Then the incident happened in 2010 with [Mr B] and he ran away. He was in hiding in Dhaka. His brother was arrested by police, and they held him for a period before he was released on bail. After that the applicant does not know where he went or where he is now. The applicant said he does not know the details of how his brother was released.
The applicant stayed in Bangladesh until December 2011. He was in hiding in various places. The police came to their home few times to ask about their whereabouts from time to time. The Tribunal put to him – how possible if he was in Bangladesh from this time until December 2011 and nothing happened to him. The applicant said he was never arrested because he never stayed in one place. Eventually he paid a broker to arrange for him to leave the country. The Tribunal asked the status of the court case now. He said he believes there is no judgement made because they are still trying to arrest them. The Tribunal asked if there is any documentation about the case since then, noting he has been asked this previously and indicated he would provide this evidence, but he has not to date. The Tribunal asked if there is any documentation about his brother’s arrest and release on bail. The applicant acknowledged he has not provided anything, but if required by the Tribunal he can try to provide it. He explained that there are no male members of his family now in Bangladesh and his sisters are unable to obtain it. They tried previously and paid someone some money, but never received anything in return.
The Tribunal put to the applicant that it notes the documents he provided previously, in 2013 to the Department. It has some concerns about the authenticity of these documents, as did the delegates previously, given the poor quality of the English and also it notes that there is no mention of any murder charge. The Tribunal asked if there is an original in Bengali which was translated or is this English document the original. The Tribunal put to the applicant that it does not consider the contents of the documents support his claims about what happened to him. The Tribunal also noted that country information before it indicates document fraud is widespread in Bangladesh and it is not difficult to fabricate documents. These concerns may lead the Tribunal to give the documents little or no weight. The Tribunal invited the applicant to comment or respond. He explained he obtained the documents previously by asking his family and this is what they got for him. He asked them to get documents in English because he believed it had to be in English. The Tribunal pointed out the documents don’t refer to murder charge, and the letter from the Union [contains] information that contradicts his evidence, including reference to him being arrested and tortured and admitted to hospital. The Tribunal also noted the absence of any documents to indicate there is a court case that is ongoing. The applicant responded that he did get injured and seek medical treatment and submitted medical documents. He referred to being beaten by AL people on two occasions at the shops in the context of demanding money from us. Once was seriously and the other time not as serious. This may have been in 2010 but was before the [Mr B] incident.
The Tribunal asked the applicant what he fears upon return to Bangladesh now (in 2022) given the time that has passed. He said he fears the police will arrest him and/or the AL people will kill him. When asked if he knows which people from AL will harm him, he said he knows them personally as they are from his area. The Tribunal noted that he had not claimed they had harmed other family members in recent times. He said that was because there are no male members of the family there, but the police have come from time to time asking for them. The Tribunal noted his evidence is that he was not present and had nothing to do with this incident so why would anyone come after you so many years later. The applicant explained that the reason the AL have put the blame for this incident on them is because they know that [Mr B], who belongs to AL, was a good friend of their family/ his brother and he was known to have a lot of money, so they have accused them of kidnapping and killing him.
The Tribunal noted that in his Statutory Declaration of July 2015, he indicated that [Mr B] was a prominent member of BNP, but now he is saying he was associated with AL. The applicant again stated that he and his family belong to BNP and [Mr B] belongs to AL. The Tribunal put to him that this inconsistency also detracts from the reliability or truthfulness of his evidence.
The Tribunal put to the applicant under s424AA, particulars of adverse information that would, if relied on, contribute to the reasons for affirming the decision under review. The Tribunal put particulars of information he gave at his arrival interview and to the delegates at the first and second protection interviews and explained how this information may lead to concerns for the Tribunal about the reliability and credibility of his evidence and claims. It was explained that he can give his comment or response immediately or request additional time which the Tribunal would consider.
The particulars of information put to the applicant were as follows:
·his evidence at the arrival interview that he was not involved in any political activities or organisations.
This is relevant because later he claimed to be fearful of return because of his BNP affiliation and activities. This inconsistency in his evidence may lead the Tribunal to have doubts about the credibility or truthfulness of his evidence.
The applicant responded that when he first arrived, he was scared about telling the whole story, so he did not. The Tribunal noted he mention a court case, but said he was not involved in any political party.
·his evidence at the first SHEV interview in Sept 2015 that he ceased political engagement with BNP in 2004, which later he changed to 2007 to explain that he didn’t know much about the BNP because he was not politically active after 2007.
This is contradicted by evidence given by him at this hearing that he was involved with BNP after he returned to Bangladesh in 2009. This is relevant because it may contribute to whether the Tribunal believes his claims about his involvement with BNP.
The applicant asked for additional time to respond to this.
·In his evidence at the second SHEV interview, he said that he had a brother who went to [Country 2] in 2011 and another brother who went to [Country 3] in 2009 and that he returned to Bangladesh in 2010. He said the murder of [Mr B] occurred when he was in [Country 1], and he returned to Bangladesh after that despite knowing he was named as one of the accused.
This is contradicted by evidence at this hearing when he said he returned to Bangladesh in 2009 and was present in the country when [Mr B] was killed. These inconsistencies may contribute to reasons the Tribunal does not accept the claim.
The applicant asked for additional time to respond to this.
The Tribunal explained the above are responses he has given in interviews previously and for that reason the Tribunal is required to formally put it to him for comment, but it notes there may be other information he has given which is inconsistent that the Tribunal may take also into account in assessing the truthfulness and reliability of his evidence.
The Tribunal explained that it would consider all of the material and evidence, including any responses made by the applicant, and make findings on what claims it accepts or rejects about the applicant’s past experiences. If it does not accept that he was falsely accused as claimed in the murder of [Mr B], it asked whether there is any other reason he fears return to Bangladesh. The applicant said there is not, he only fears return for this reason.
The Tribunal asked the applicant why, if he fears local AL people in his area, he cannot live elsewhere in Bangladesh where he will not face a risk of harm from them. The applicant said he would have to live in hiding and he cannot hide forever.
The applicant confirmed that he has not been involved in any political activities since he left Bangladesh.
When asked if he wished to say anything else, he said he does not feel safe if he has to return to Bangladesh.
The Tribunal discussed with the applicant relevant country information before it relating to the real chance of harm on the basis of low level BNP support, and general fear of harm from AL supporters. It acknowledged that there is independent information before the Tribunal indicating there are auxiliary groups/wings associated with both major parties that go around demanding money from businesses, and it accepts there is some politically motivated violence between BNP and AL supporters. However, the Tribunal put to the applicant that given his family is not currently running businesses, he would not be returning now to run a family business so would not face a risk of harm of the kind he experienced in the past. The country information before the Tribunal suggests politically motivated violence has decreased since earlier years. It explained that sources before it, including DFAT country information, indicate that AL has been in power for over 12 years now and these days much of the politically motivated violence is intra party rather than inter party. It suggests that political motivated violence occurs particularly around election time, but it mostly affects leaders and activists and not those who are just supporters. In light of the evidence the applicant has given about his political activities and profile, it may not accept he has any profile that would attract attention for his political opinion.

In response the applicant said that just two days ago there was a political meeting, and they closed all the [businesses] and there were big fights going on. Not all the news is covered here. The Tribunal acknowledged his response and would take that into consideration in its assessment of the risk of harm faced by him on return.
The Tribunal indicated in relation to the request for additional time to respond to the information and concerns put to him it would provide 2 weeks to the 22 November 2022 to respond. The Tribunal told the applicant the audio recording of the hearing is available for him to review the information and he can seek the assistance of his representative to prepare a response.
To date the Tribunal has not received a response or any other information from the applicant.
FINDINGS AND REASONS
Nationality
The applicant does not have, and did not arrive with, a passport. He claims he had a genuine passport in his own name and used it to travel out of Bangladesh in 2007 and 2011, but he left it in [Country 1]. He provided a birth certificate and nationality certificate to the Department to establish his identity. He participated in an identity interview with the Department in February 2013 which the Tribunal has listened to. The Department officers were satisfied on his responses that he was a national of Bangladesh. The Tribunal is also satisfied on the evidence of his responses regarding his place and date of birth, family and background and the identity documents, that the applicant is a national of Bangladesh and considers Bangladesh is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. 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; and Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal takes the above principles into consideration in making its findings below.
The applicant has put forward the following claims for protection in the two applications for protection visas that are the subject of the present reviews: he belongs to/is a supporter of the BNP, having joined the party while at college and participated in some meetings and processions; he worked in the family businesses with his brother after he left college, who was also a BNP member and they experienced problems and violence from members of the Awami League who robbed and demanded money from them; in June 2010 the applicant and his brother were named in false allegations of kidnapping and murdering a person named [Mr B] and also of misappropriating funds; he fears the cases are ongoing and the police will arrest him if he returns; he fears members of the Awami League in his area will seek revenge on him for the death of [Mr B]; the police have been visiting his house since 2012 inquiring about the whereabouts of the applicant and his brother in relation to the ongoing case. The applicant indicated apart from the matter of the false case against him relating to [Mr B] there was no other reason he feared return to Bangladesh.
The Tribunal acknowledges the substantial time that has passed since the applicant arrived in Australia and his claims for protection were made. His original statement, lodged in support of both protection applications, was made almost 8 years ago in July 2015. He has given evidence since his arrival in 2012, over 10 years ago, in numerous interviews, some of which are years apart. His oral evidence has been given through different interpreters and he had no legal representation in the early stages of the process. The Tribunal acknowledges there would be an impact on his memory and recollection caused by the substantial lapse of time, and that his early interviews may have also been impacted by his state of mind from the journey to Australia and circumstances of detention. The Tribunal has taken all of this into consideration in assessing the evidence before it now and making the findings on material facts in relation to his claims.
Claims relating to the applicant and his family’s involvement and affiliation with BNP in Bangladesh
Although initially at his entry interview the applicant denied any involvement with any political group or organisation, the Tribunal acknowledges that the interview was within a week of his arrival following a long and complicated journey to Australia. He was interviewed again some months later in the context of identity assessments in February 2013 and referred then to his affiliation and support for BNP. Since then, he has consistently claimed an affiliation to the BNP. However, there have been inconsistencies and discrepancies in his evidence relating to the extent and level of involvement in political activities he has had and his oral evidence demonstrating his knowledge of the party and description of his involvement has been minimal, vague, and general. For example, in his original statement he referred only to involvement in political meetings while at college in 2003 and 2004. At his first SHEV interview in September 2015, he explained that he detached from politics after that, but later in his second SHEV application interview he referred to continuing involvement for some 4 years following until he left Bangladesh for [Country 1] in 2007. He told this Tribunal at the hearing that he continued to be involved in BNP activities when he returned from [Country 1] to Bangladesh in 2009 and that he supported BNP over AL because it was family tradition but never enrolled to vote nor had a voter ID. He said his brother was a member of the BNP and participated in meetings and processions. At the Department interview for the second application, the applicant elaborated on his evidence and said he and his brother’s problems started when his brother, [Mr A], began to consider running for election against the AL person in their area around 2006 or 2007.
The Tribunal observes that no response was provided by the applicant to the inconsistencies in his evidence about the level and timing of his BNP activity participation put to him by the Tribunal.
Notwithstanding the noted inconsistencies, taking into account the passage of time and significance of the discrepancies to the asserted claim, the Tribunal is prepared to accept, for the purposes of this assessment, the applicant is affiliated to the BNP through family tradition and that he joined the party while at college where he attended meetings and processions. It accepts that the evidence which has been substantially consistent over the two applications is that he was not particularly involved after leaving college when he started working in the family businesses from 2004 to 2007. He told the Tribunal he had not enrolled to vote and had no voter ID card. The Tribunal notes he referred to his brother’s party membership and involvement and said, at the second interview, that their problems arose because of his brother planning to run for election, however this was never mentioned earlier, and no further evidence was given about this at the recent hearing. The Tribunal is prepared to accept his brother, like he, was associated with the BNP and that they would be known as a BNP affiliated business in the local area. In the absence of more detail about the nature and profile of his political involvement, the Tribunal is not satisfied on the evidence that the applicant was any more than a low level BNP supporter and affiliated by family tradition with that party.
In respect of the claims relating to harassment, robbery and extortion demands by members of the AL against their business in this period, being 2004 to 2007, the Tribunal observes the BNP was in government up to 2007 when the Caretaker Government came in until elections held in 2008. Information before the Tribunal indicates that politically motivated violence greatly reduced during the Caretaker period; and levels of criminality, particularly extortion which was often conducted with impunity by politically connected individuals, had fallen dramatically.[2] By implication, the Tribunal accepts that there was a high level of such violence and criminality prior to this period. The Tribunal accepts that the applicant’s claims of experiencing violence, robbery and extortion by local rival AL members in the context of running their businesses in this period is credible, plausible and consistent with available country information. It accepts it is possible that this conduct may have been politically motivated, in the sense that their business was targeted by persons associated with, or on behalf of members of the AL, because of their affiliation with BNP, though it could equally be characterised as criminality conducted under the guise of politics.
[2] Department of Foreign Affairs and Trade 2007, DFAT Report 636: RRT Information Request: BGD31628, 3 May – Attachment 1
In 2007 the Tribunal accepts the applicant departed Bangladesh for [Country 1] for the purposes of seeking employment. He made no claims of engaging in any political activity or involvement in [Country 1]. He also made no claims to of engaging in any political activity since coming to Australia. On the basis of his claims and evidence, and clear lack of engagement in politics for such a long period, the Tribunal finds there is no obvious reason he would be identified with the BNP on return, although it is prepared to accept that he may retain allegiance to that party over the AL because of his history.
The Tribunal has considered country information about the risk of harm on the basis of BNP affiliation and low level support. It acknowledges that the BNP continues to be the main opposition party in Bangladesh, although it has not been in power there since 2006 and has boycotted recent elections. As a result, the party’s visibility has reduced in recent years. DFAT reports that BNP figures allege they have been subjected to enforced disappearance and members allege that violence against them perpetrated by AL members occurs with impunity. It notes that the former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and seven years on a separate corruption charge in October 2018, and the BNP claims these charges are politically motivated.[3]
[3] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT) 30 November 2022, p23
DFAT goes on to state:
3.82 There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.[4]
[4] Ibid.
Regarding political violence generally, other sources considered by the Tribunal indicate political conflict between the AL and its opponents peaked around the January 2014 elections – the most violent in Bangladesh’s history – and subsequent opposition-led nationwide hartals (strikes).[5] The evidence indicates high levels of political violence has continued throughout subsequent years, though shifted from inter-party to predominantly intra-AL clashes and that intra-party violence has overtaken inter-party violence as the main form of politically motivated violence.[6]
[5] ‘Political Conflict, Extremism and Criminal Justice in Bangladesh’, International Crisis Group, 11 April 2016, p.3, CIS38A8012646
[6] For example, 'Annual Human Rights Report on Bangladesh 2018', Odhikar, 8 August 2019, p.9, 2019082714401620190827144016; 'Annual Human Rights Report 2019 Bangladesh', Odhikar, 8 February 2020, pp.70-71, 20200218104232; 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, pp.43-44, 76-77, 20210209153355; 'Country Policy and Information Note Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9, 20200928084218
The Tribunal accepts that country information indicates that ruling parties, both the AL and the BNP, and their affiliated organisations control state machinery and exploit it to supress their opposition while in office[7], and that the police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[8]
[7] ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, para.3.66, p.25
[8]' BTI 2022 Country Report: Bangladesh', Bertelsmann Stiftung, 23 February 2022, p.3, 'Bangladesh: Stop Reprisals Against Victims, Activists', Human Rights Watch (HRW), 07 April 2022; 'Cycle of Fear Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh', World Organisation Against Torture (OMCT) and Odhikar, 25 July 2019, p.29
The Tribunal has considered country information that suggests there may be increasing political confrontation and clashes between the AL and the BNP in the context of the upcoming national elections, scheduled to be held in December 2023. There are reports from BNP sources suggesting substantial number of party supporters being charged in trumped up or fake charges.[9] It notes that Human Rights Watch has stated that mass arrests and police raids of opposition party members’ homes raise serious concerns about violence and intimidation ahead of the upcoming parliamentary elections.[10]
[9] 'Bangladesh opposition says 4,000 charged in gov’t crackdown', Al Jazeera, 11 October 2022
[10] 'Bangladesh: Crackdown on Political Opposition', Human Rights Watch (HRW), 10 October 2022
The Tribunal has considered the above country information in the context of the findings above relating to the applicant’s background and profile and activity with regard to his BNP affiliation. Although the Tribunal accepts the applicant was traditionally affiliated with BNP through his family, he has not participated for the party for well over a decade. He demonstrated little deep knowledge or interest in the party in his oral evidence, despite being questioned about this topic at all of the interviews and the recent hearing. He has not maintained any interest or engagement with the BNP since leaving Bangladesh in [Country 1] nor in the last decade in Australia.
On the evidence before it, the Tribunal finds that he is unlikely to participate upon return on behalf of the BNP and given this profile, notwithstanding the above country information, the Tribunal is not satisfied that there is a real chance he will face serious harm for reasons of his political opinion upon return to Bangladesh in the reasonably foreseeable future.
The Tribunal, above, accepted that the applicant experienced physical violence, robbery and extortion demands in the context of running his business with his brother in the past. But he and his brothers have been absent from the country for many years, and he did not indicate that there are any family businesses remaining that he would return to. He referred to his elder brother returning to Bangladesh for some months in 2016 and did not mention any problems he experienced. His brother-in-law is a businessman, and he has not reported any issues of that nature to the applicant.
Therefore, despite his history of experiencing physical violence, robbery and extortion in the past while a businessman in Bangladesh, there is no evidence before the Tribunal to support a finding that the applicant would face a real chance of serious harm of this nature in the reasonably foreseeable future in Bangladesh.
Claims of being named in false charges for murder of [Mr B] and misappropriation of funds
For the following reasons, the Tribunal finds the applicant’s claims regarding false charges relating to the murder of [Mr B] and charges of misappropriation of funds against him and his brother are lacking in credibility, and it rejects them.
Although the applicant made reference to the issue of a court case at the very first Entry Interview he had in October 2012, the subsequent details and evidence he has provided since then detract from the credibility of the claim significantly.
In his first Entry Interview, he said he did not know what type of court case it was and who was making the threats, referring only to it being after he returned from [Country 1], and instigated by people who had money and power and were running a business with his brother.

In his (Identity) interview in February 2013, he mentioned a court case against him which was the reason he went to [Country 1]. He specified it related to a murder of a person from his party by an opposition party person and a case was fabricated against him for the murder.
In his July 2015 written statement, he referred to the AL alleging he kidnapped and murdered a prominent BNP member, but at the interview with the delegate he referred to the person who was killed, [Mr B], as an AL supporter. When later asked to clarify, he changed his evidence and said he was a BNP supporter.
At the protection interview with a different delegate in August 2021, the applicant said [Mr B] was involved with AL, and when he was murdered the AL arranged for a case to be filed against them for the killing. Before the Tribunal in November 2022, the applicant claimed that [Mr B] is an AL person.
In addition to these stark inconsistencies in his evidence about a material fact of which party the claimed victim belonged to, the Tribunal is troubled by other aspects of the evidence regarding this claim.
In March 2013 the applicant submitted documentation including two statements, First Information reports and a Court document relating to the alleged false charges against him. The Tribunal has considered these documents and discussed its concerns with the applicant at the hearing. Firstly, the content of the documents does not correspond with the evidence of the applicant about this matter. Specifically, the complaint letter from the alleged victim’s father and the FIR makes no reference to any killing or a murder charge. The second FIR submitted refers to a robbery incident committed by 14/15 unknown persons and bears no connection to any of the claims made by the applicant. The third document from the Court [appears] to relate to his claim of a charge of misappropriation of funds, but the period referred to – from January 2006 to May 2010 incorporates a substantial period when the applicant was not even in Bangladesh, but rather in [Country 1]. The letter from the Office of the Chairman [dated] [October] 2010 contains information that contradicts the applicant’s own evidence, including that he is actively involved in the BNP and was arrested, tortured and admitted to hospital, none of which he claimed in his oral testimony. The applicant’s evidence at hearing regarding injuries sustained and medical treatment he obtained was in the context of violence directed against him when conducting his business, prior to the [Mr B] incident and he never claimed to have been arrested or tortured in that context.
Despite being put on notice as to the discrepancies and concerns arising from the documentary evidence he submitted, and the absence of evidence to support that there is an ongoing court matter, the applicant has not produced any other evidence to date. If there was an ongoing case against him, it would be reasonable to expect some documentation would be available that he could provide.
The Tribunal observes the new information he provided in his Statutory Declaration dated 7 August 2018, that his father reported to him in August 2018 that police officers came to their house enquiring about their whereabouts in relation to the ongoing case, is contradicted by his evidence to the Tribunal at hearing that his father passed away from illness in early 2016.
His evidence about where he was at the time of the alleged killing of [Mr B] has also been internally inconsistent throughout the processes of these applications. He has variously claimed that he was in Bangladesh at the time, having returned in 2009 (in his July 2015 written statement) or in 2010 (in his 25 September 2015 first protection visa interview and before the Tribunal at the hearing in November 2022) or that he was in [Country 1] at the time and returned after hearing of the death because he was confident he would not be blamed given he was not in the country (in his 11 August 2021, second protection visa interview). The inconsistencies in his evidence about whether he was in Bangladesh or [Country 1] at the time of the alleged killing of this person for which he was allegedly falsely blamed adds to the Tribunal’s concerns about the credibility of his claim. The Tribunal has considered the significance of these discrepancies to its assessment, and whether they can reasonably be explained by the passage of time, use of different interpreters and difficulties of recollection. It considers that details such as whether the applicant was or was not present in the country when the person he is accused of murdering was killed, or whether he returned to the country after the incident is a fact of such material significance to his claim and his inability to provide evidence about this consistently detracts from its credibility and reliability.
Additionally, the Tribunal notes the applicant’s evidence is that he did not depart Bangladesh again until late 2011, when he returned to [Country 1]. He remained in Bangladesh for almost 18 months after the alleged incident and did not experience serious harm. He has not claimed to have had any issues departing the country in 2011, which it would have been reasonable to expect if he was facing a murder or other serious charges against him as claimed.
Having considered all of the evidence before it, and the above-mentioned concerns, inconsistencies and discrepancies in the documentary and oral evidence, the Tribunal is not satisfied that the applicant or his brother were or are subject to any charges, false or otherwise, in Bangladesh. There is no evidence before the Tribunal to support a finding that there are any charges, criminal or otherwise, pending against the applicant now.
Having rejected this claim, the Tribunal is not satisfied the applicant faces a real chance of persecution upon return to Bangladesh in the reasonably foreseeable future from the authorities or anyone associated with or in the AL for this reason and/or any imputed political opinion arising from it.
Residual claims arising from the material
The applicant has not claimed to fear return to Bangladesh for any other reason apart from his BNP affiliation and the claimed charges against him, which the Tribunal has rejected.
Notwithstanding this, the Tribunal notes that the applicant has been outside Bangladesh since December 2011, a period over a decade and would be returning there now as a person who has spent a substantial time overseas in a western country. It accepts on his evidence that he used his own passport when he last departed Bangladesh. It accepts he does not hold a current passport.
Risk of future harm as a failed asylum seeker
DFAT’s most recent Country Information Report on Bangladesh provides the following information relevant to Treatment of Returnees and Conditions for Returnees:
5.21The Overseas Employment and Migrants Act (OEMA) 2013 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 Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed asylum applications, for example) and even those provisions are rarely enforced. It is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted under the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this happening.
5.24It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.25Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
5.26DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.[11]
[11] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT) 30 November 2022, p36
The Tribunal notes that DFAT’s two earlier reports, in February 2018 and August 2019, similarly concluded that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily and that authorities may take an interest in high profile individuals, but this is unlikely for a returnee without such a profile.[12]
[12] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT), 2 February 2018, p. 36, DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT), 22 August 2019, p. 50
The Tribunal accepts that the applicant, if returned to Bangladesh, would be returning after being absent for a substantial period (of 12 years). Returning from Australia following a prolonged stay here, the Tribunal accepts the authorities may assume he had sought asylum here and failed. The applicant departed the country on his own document, therefore he does not appear to have breached any laws by his manner of departure if he was questioned about this upon return. Above, the Tribunal found the applicant has no ongoing BNP profile and no outstanding cases or charges against him or other profile of interest to the authorities, therefore the Tribunal is satisfied he does not face a real chance of serious harm as a returnee following a prolonged absence, or failed asylum seeker.
On the basis of the findings above, and considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act.

100. Above, the Tribunal has accepted the applicant was a low level BNP supporter many years ago, but has not been active since at least 2007, or at most 2010. It accepted that he would have upon return a profile of a failed asylum seeker returnee. Considering these findings, for the same reasons the Tribunal was satisfied that he did not face a real chance of serious harm, the Tribunal is satisfied that there is no real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Bangladesh.
101. Accepting that the applicant has been outside Bangladesh now for almost 12 years, the Tribunal acknowledges that he may face challenges and hardships reintegrating with his family and into society in Bangladesh and find it difficult to get work. However, it finds that financial hardship or unemployment does not come within the meaning of ‘significant harm’ for the purposes of this criteria. Therefore, while sympathetic to the applicant’s situation regarding his economic prospects and future there, it is satisfied there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he is returned to Bangladesh.
102. Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk, he will suffer significant harm.
103. 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

105. The Tribunal affirms the decisions not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2023] AATA 1198

2 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction