1826217 (Refugee)

[2023] AATA 474

1826217 (Refugee) [2023] AATA 474 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Bethany Rose, Australian Legal Practitioner

CASE NUMBERS:  1826217 and 2115752

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Paul Windsor

DATE:24 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2023 at 12:10 pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – Bangladesh National Party member – particular social group – failed asylum seekers – political violence – physical assault – fear of killing – political activities in Australia – internal relocation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AA, 5H, 5J, 36, 48, 65, 91, 411, 424AA
Migration Regulations 1994, Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 DECISIONS AND REASONS

APPLICATIONS FOR REVIEW

1. This statement of decisions and reasons is regarding applications for review of two decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 8 August 2016 (the first protection visa decision); and a decision made by a delegate of the Minister for Home Affairs on 28 October 2021 (the second protection visa decision) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Procedural history

2. There is an extensive procedural history to these cases now before the Tribunal, as follows.

3. 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 [in] October 2012, without a valid visa, on a boat from Indonesia codenamed [name].  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 Migration Act 1958 (Cth) (the Act)) due to this arrival method. This was confirmed in the applicant’s particular case in the Federal Circuit Court order in [Case number] [in] August 2018.[1]  Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)).  Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

   [1] See Tribunal file 1826217.

4. The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 30 January 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, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant first applied for a Temporary Protection (Subclass 785) visa (TPV) on 26 June 2015. That application was not subject to the s 91K bar, and it was a valid application. Subsequently, 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 protection visa application on 8 October 2020, for a Safe Haven Enterprise (Subclass 790) visa (SHEV), which was also valid.

6. The first protection visa application (TPV) of 26 June 2015 was refused by the delegate on 8 August 2016. 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 to the Tribunal on 7 September 2018 (AAT Case Number 1826217).

7. The second protection visa application (SHEV) of 8 October 2020 was refused by the delegate on 28 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 3 November 2021 (AAT Case Number 2115752).

8. The applicant appeared before the Tribunal in a joint hearing on 19 October 2022 where he gave evidence and presented arguments regarding the issues that arise in both review applications (covering the two protection visa refusal decisions of 8 August 2016 and 28 October 2021).  The applicant was represented in relation to the reviews. The representative attended the Tribunal hearing.  The combined Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

9. The applicant was advised in the hearing invitation that the hearings for both review applications would be combined, and this was explained at the hearing: he did not indicate any issues with this approach (nor did his representative – who is the same for both review applications).

   CRITERIA FOR A PROTECTION VISA

10. To meet the criteria for a TPV and for a SHEV, applicants must engage Australia’s protection obligations as follows.   

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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 (the Department), 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.

17. The most recent DFAT Country Information Report on Bangladesh was issued on 30 November 2022.  At the time of the hearing, the current report was dated 22 August 2019.  Having reviewed the updated report,[2] the Tribunal is satisfied that there is no material difference in the content of the reports relevant to the issues under consideration in this review.

    CONSIDERATION OF Claims and evidence

    [2] DFAT Country Information Report, Bangladesh, 30 November 2022.

    Claims

18. In his TPV application made on 26 June 2015, the applicant indicated he was born on [date] in the Jessore District of Khulna Division, Bangladesh.  He indicated he is ethnic ‘Bangla’, is a Muslim and had never married or been in a de facto relationship.  He included with his application copies of a birth certificate, issued in English [in] 2010 and indicating his birth was registered [in] June 2008; a citizenship certificate, issued in English [in] January 2012, stating he ‘is a bonafiade (sic) citizen of Bangladesh’; and a testimonial, dated [in] November 2012 and also in English, from the Headmaster of [a named] School in [Town 1], Jessore District, Bangladesh which stated, inter alia, that his date of birth is [date].[3]

    [3] See Departmental file [number].

19. The applicant’s claims for protection, as set out in his TPV application, are summarised as follows.[4]

    • He is a local leader of the Bangladesh Nationalist Party (BNP), which is now in opposition.  He is targeted for his political beliefs and was attacked and injured.  He is afraid the government authorities will harm him.
    • He was attacked and injured by government supporters.  He was hospitalised for treatment of his injuries.
    • He could not seek help because it was the government authorities and their supporters who attacked him.  There is nowhere in Bangladesh where he would be safe.
    • He is afraid he will be imprisoned and possibly tortured or killed if he is forced to return to Bangladesh.

    [4] Ibid.

20. As foreshadowed in his TPV application, the applicant provided further details in support of his claims in a written statement (prepared with the assistance of [Agency 1] and a Bangla language interpreter), signed and witnessed on 2 December 2015.[5]  Relevant additional matters raised in this statement are summarised as follows:

    [5] Ibid.

    • He was born in [Village 1] in Jessore district.
    • His brother [Brother A] (not [Brother B] as indicated in his TPV application) lives in [Country 1].  His brother [Brother C1] lives in [Country 2].  They left Bangladesh because they had been threatened by members of the Awami League (AL) and felt threatened there.  [Details deleted.]
    • He joined the BNP when he was a student in [grade].  At that time the BNP was in power.  He started by doing some volunteer work for them and after about two years he became the [Position 1] of the BNP Youth League for his village.  He was appointed to this position because he was very popular.  He was paid 500 taka a month. 
    • He also owned and ran his own [store].
    • As the [Position 1] his role was looking after the village people and supporting them if they had a problem.  He would give them money for clothes or food or, if they were sick and needed to go to the doctor, he would take them there by motorcycle.
    • In April 2012, when he had been [Position 1] for about two years, he attended a march in his village protesting that [Mr D], a BNP Youth League [Position 1] at the district level, was going to prison for ‘a false allegation’. (This was not in Oct/Nov 2011 as indicated in the Entry Interview, which contains some mistakes as he was frightened and confused at that time and did not understand English very well).
    • After the protest he went home and then went to his store.  As he was leaving to return home, he was attacked by AL (the then government) supporters who were very angry with him because he was popular.  They cut his leg.  He shouted and screamed so people came to help him.
    • He was admitted to the [Clinic 1] [in] April 2012.  The clinic report indicates he had multiple cut injuries to his right thumb, left wrist and right heel.
    • After he was discharged from the clinic he went into hiding as he knew he was not safe.  He did not go to the police as they support the AL government.  He was afraid they would tell the government supporters and he would be attacked again.  He is especially fearful of the CID undercover police.

    ·If he relocated within Bangladesh he fears the government supporters would find him and kill him.  He has a high profile and was popular.  He was well known as a [Position 1].  If he relocates people will wonder why he is there and ask questions and find out who he is.  He fears he will be killed.

    • He then flew on a direct flight to [Country 2] with the assistance of a people smuggler (rather than go there illegally by boat as indicated in the Entry Interview report).  They took his passport after he entered [Country 2].  He stayed there for 5 months.  He was working illegally and when he tried to get a work visa it was denied.  He then saved enough money to go to Australia to seek protection.  He went by boat and they were stopped by the Australian navy [in] October 2012 and then taken to Darwin, arriving there [in] October 2012.

21. The applicant also corrected some errors in the record of his Entry Interview with the Department held on 31 October 2012 (including that he flew from Bangladesh to [Country 2] rather than went there by boat).  He commented that he was very frightened and confused at that time, did not understand English very well and does not have a clear recollection of what he said.

22. The applicant attended an interview with the TPV delegate on 3 December 2015.  At the interview he submitted originals and further copies of the identity documents listed above; a copy of a reference letter dated 10.05.2012, purportedly from [Mr E], President of the BNP [Branch 1], Jessore; and a copy of a Discharge Card dated [in April 2012] from the [Clinic 1] in [a location in] Satkhira.  The applicant was also asked to draw a representation of the BNP flag and this drawing is on the file.[6]

    [6] Ibid.

23. The Tribunal also notes that there is a copy of a decision record dated 14 October 2016 from the Immigration Assessment Authority (IAA) on the Departmental file.[7]  As this relates to an invalid legal process the Tribunal did not have regard to the IAA decision. 

    [7] Ibid.

24. In the SHEV application of 8 October 2020,[8] the applicant indicated that he had married in Australia [in] June 2019, to an Australian citizen who was born in Bangladesh (he attached a copy of his marriage certificate).  He indicated he departed Bangladesh legally, departing from Dhaka airport [in] May 2012 on a Bangladeshi Passport and flying to [Country 2], which he entered on a business visa.  He indicated his passport subsequently was taken from him by the people who organised his travel to Australia by boat.  In relation to his claims for protection, the applicant referred to his statement provided in December 2015 in support of his TPV application, which he attached to the SHEV application.  He indicated that he would provide a statutory declaration with updated details at a later date.

    [8] See Departmental file [number].

25. On 1 October 2021 the applicant submitted to the Department a statutory declaration of the same date, in support of his SHEV application (prepared with the assistance of [Agency 1] and a Bengali language interpreter), prior to attending an interview with the SHEV delegate on 5 October 2021.[9]  Relevant additional matters raised in this statutory declaration are summarised as follows:

    [9] Ibid.

    ·Some of the information provided previously contains errors which he wishes to correct.  He believes these were caused by miscommunications when using interpreters.  He has some difficulties in recalling information clearly from his time in Bangladesh as  a result of the trauma he suffered while he was there.  This issue with his memory is made worse by the ongoing stress of dealing with the protection visa process in Australia.

    ·His brother’s name is [Brother C] not [Brother C1].

    ·He is a Bangladeshi national, not a Bangla.

    ·He flew to [Country 2] on a passport provided by a travel agent with a three month business visa.  He only made contact with people smugglers after he had been in [Country 2] for around two and a half months and his visa was about to expire.

    ·He grew up supporting the BNP as his whole family supported them.  He joined the BNP as a volunteer when he was [age] years old and in [grade] of his schooling.  He signed his name in a book kept in the office of the Chairperson of the Union, [Mr F].  At this time the BNP was the elected government. 

    ·Two years after he joined the party the BNP began paying him a small wage to work as the ‘Shovapoti’ (president) of the BNP ‘Jeuba Dal’ (youth branch/wing) for his village, [Village 1].  The union leader decided he should work in this role so called a meeting of BNP supporters who supported his choice.  This was due to the applicant’s popularity in the area and his profile developed as a BNP volunteer.

    ·There have been inconsistencies with the English translation of the term ‘Shovapoti’.  Sometimes interpreters have translated it as ‘president’ and other times as ‘[Position 1]’.

    ·For context it should be noted that in Bangladesh, a ‘union’ is a collection of villages; an ‘upazila’ (also known as a ‘thana’) is made up of a number of unions; a ‘district’ comprises a number of upazilas; and a ‘division’ comprises a number of districts.

    ·As a Shovapoti for his village, people could come to him with any issues or complaints.  These could relate to politics, medical need or when people needed money for food or clothing.  He also helped when people needed protecting from harassment by groups like AL cadres.  He would warn the harassers to stop acting that way and made sure BNP supporters offered protection if the problem persisted.  He also helped organise BNP supporters to participate in protests or other BNP related events.  His role was a combination of assisting people and doing things as directed by the Union Chairman, [Mr F].  He would attend union meetings once a month led by [Mr F], with around 21 other village Shovapoti, where they received general instructions on how to proceed in their roles with the BNP.

    ·In April 2012, around 2 years after he began working as Shovapoti, he attended a BNP protest march in [a location], in support of a district Shovapoti, [Mr D], who was going to prison for a crime he was falsely accused of committing.

    ·After the protest he was attacked by 4 or 5 AL supporters armed with knives, causing significant injuries to his head, hand and leg.

    ·While he was in the [Clinic 1], AL supporters tried to come to the hospital to attack him again.  He was warned by his brother and BNP members who were there and was able to escape before they could find him.  The clinic gave the report to his brother, on his request.

    ·He went into hiding in the house of his brother’s friend in Satkhira as he knew he was not safe.  He stayed there until he was able to depart for [Country 2].

    ·He has continued to remain active for the BNP since he has been in Australia.  Pre-Covid they would meet in person and since have met via [social media]. They plan how to increase supporters and bring the BNP back to power.

    ·AL supporters recently threatened his nephew in Bangladesh when his nephew didn’t answer questions about where he is.  They know he is still actively involved with the BNP.  His nephew is seeking to escape Bangladesh as he is fearful of being attacked or disappeared.

    ·The AL has been in power for a long time now and has implemented laws and policies to increase their control, including in relation to social media use and speaking out against the government.  He is active on social media.

1. Following the interview with the SHEV delegate of 5 October 2021, the applicant’s then representative made submissions dated 18 October 2021 in support of the SHEV application.[10]  It was submitted that the applicant fears persecution from the AL government in Bangladesh, affiliated political groups and state-controlled agencies and that, if returned to Bangladesh, he would be easily identified as an active BNP supporter due to his social media activity and profile as a former BNP Shovapoti.  Evidence in support of the applicant’s claimed BNP related activities in Bangladesh and Australia was attached in the form of letters purportedly from BNP figures in Bangladesh and Australia; a copy of a photo of the applicant at a BNP event in Australia; screenshots of three [social media] cover pages for BNP groups (two private - one of which has been archived - and one public) which show the applicant as a member who ‘Works at Australia’; and a copy of a BNP logo drawn by the applicant at the SHEV interview.  The representative cited country information regarding the monitoring of social media activity by AL government authorities.  Country information was also cited regarding harassment by the ruling AL party of the opposition BNP and those perceived to be allied with it.  It was submitted that there is no place in Bangladesh to which the applicant could safety relocate to avoid suffering a real chance of harm and that, as the state is one of his feared persecutors, the applicant is unable to avail himself of the protection of Bangladesh.

   [10] Ibid.

2. The current representative provided a pre-hearing submission dated 12 October 2022.[11]  This referred to the applicant’s statement of 2 December 2015; statutory declaration of 1 October 2021; legal submissions of 18 October 2021 and supporting documents previously submitted to the Department.  Comment was provided regarding concerns with the reasoning of the SHEV delegate in her decision record and legal argument made in support of the contention that the applicant’s fear of persecution is well-founded, including by reference to recent AAT decisions and relevant country information, including the DFAT Country Information Report.  Relevant additional matters raised in the submission are summarised as follows:

   ·The applicant has been an active member of the BNP in Australia, having joined the [Regional Branch 1] in 2014 as a member.  In 2016 he was appointed [Position 2] of [that branch].

   ·He understands that his nephew and a friend have been approached by AL members or their affiliates inquiring about his whereabouts since his departure from Bangladesh.

   Evidence from the hearing

   [11] See the Tribunal files.

3. The applicant’s spouse attended the hearing as a support person.

4. At the start of the hearing the Tribunal noted the extensive procedural history to these cases which has resulted in there being two review applications concerning decisions to refuse to grant two different protection visa applications.  The Tribunal noted that as the two relevant decisions to refuse to grant protection visas relate to an application for a TPV made on 26 June 2015 and an application for a SHEV made on 8 October 2020, the same law (post 16 December 2014) applies in both cases.  The Tribunal also noted that the SHEV delegate had incorrectly stated that the first protection visa application was also a SHEV (rather than a TPV application) and the representative had also made this error in her pre-hearing submission. The applicant and his representative indicated they had no comments they wished to make or concerns with the proposed approach involving a single, combined hearing and decision record covering both review applications.

5. The applicant confirmed he was born and grew up in [Village 1] in the Jessore district of Bangladesh.  He indicated that approximately 1,500 people reside in [Village 1] and approximately 400,000-500,000 people reside in Jessore district.

6. The applicant indicated that he considers himself to be of Bangladeshi rather than Bengali ethnicity.  He maintained this was the case even though the Tribunal sought to explain that ethnicity is different to nationality, that Bangladesh has only existed as a country since the 1970s and that the DFAT report indicates that about 98 per cent of the population of Bangladesh is ethnically Bengali, with the remainder mostly small indigenous groups.[12]

   [12] DFAT Country Information Report, Bangladesh, sections 2.1-2.2 and 3.1.

7. The applicant indicated that his parents, [and specified family members] are currently residing in Bangladesh.  He said two of his brothers are now living in [Country 2] with another living in [Country 1].  He said his [specified family members live in specified locations].  He indicated he is in contact with his parents every 2-3 weeks.

8. The Tribunal observed that his supporting statements indicate his parents have a large house and land, some of which has been leased to others to farm and that they had also gifted some of the land to him, as well has him owning a [shop].  The Tribunal asked if the shop was also provided by his father.  The applicant indicated it was.  When asked if he would describe his family as reasonably wealthy landowners, the applicant indicated he would, commenting that they do have land there.

9. The applicant indicated that he had [number] years’ of schooling – [in primary school] in his village and [number] at high school.  He indicated that, while he can’t remember exactly when his parents first sent him to school, he thought he was [age] years old when he did [grade].  The Tribunal observed that his statutory declaration of 1 October 2021 states he was [age] years old when he was in [grade].

10. The applicant acknowledged that he did [Occupation 1] work while he was in [Country 2] in 2012.  He indicated he had no prior experience as [an Occupation 1] and leant it while in [Country 2].  He indicated he did some [Occupation 1 work] briefing at a factory in Australia where he worked for three months before the factory closed.  He indicated that, more recently, he has been working at a [shop] at a market in Melbourne.

11. When queried regarding the differing accounts he has provided of how he travelled from Bangladesh to [Country 2] (illegally by boat arranged by a people smuggler versus by air on a passport and visa arranged by a travel agent), the applicant confirmed he departed Bangladesh by airplane and flew to [Country 2].  When asked, he commented that he was traumatised and very fearful when he arrived in Australia and did not know and can’t remember what he told the authorities about himself.  The Tribunal observed that his account stating that people smugglers helped him get out of Bangladesh to [Country 2] and took his passport when he got to [Country 2] was in his statement of 2 December 2015, made with the assistance of [Agency 1] three years’ after his arrival, and asked why he stated that when it was not the case.  The applicant commented that a people smuggler organised a visa to send him to [Country 2].  When queried that in his second statement he indicated it wasn’t a people smuggler but was a travel agent, the applicant said he did not go to a travel agent but people smugglers contacted a travel agent to arrange his departure for him.  When queried that at paragraph 8 of his statutory declaration of 1 October 2021 he indicated that his previous statement indicating he was assisted by people smugglers to travel from Bangladesh to [Country 2] is incorrect, the applicant commented that the interpreter must have misinterpreted what he said. 

12. When asked, the applicant said it cost approximately 100,000 taka for him to get to [Country 2].  He said his parents and brothers helped him organise the money.  When asked how he was able to arrange his departure from Bangladesh to go to [Country 2] while he was in hiding, the applicant indicated that after he was released from the [Clinic 1] he stayed one day at his friend’s home and from there he went to Dhaka, where he stayed in a hotel at [a named location].  The Tribunal queried the applicant that in his statutory declaration of 1 October 2021 he doesn’t mention going to Dhaka but stated that he hid in the house of his brother’s friend in Satkhira.  He applicant commented that he was there but had to go to Dhaka to leave Bangladesh.  He said he stayed in Dhaka for maybe 2-3 weeks.

13. When the Tribunal asked the applicant to tell it about the ideology and aims of the BNP, the applicant sought to refer to a document he had before him.  The Tribunal asked if he could tell the Tribunal about the BNP from memory rather than read from the document.  When he then sought assistance from his spouse, the Tribunal indicated that it wanted to hear from him, not from his spouse. 

14. The applicant said the main aim of the party is the development of the country; that they want to do the politics including everyone, for example Muslim, Hindu and people of other religious beliefs; BNP is very good with regards to the country’s education; and BNP looks after food, shelter and work for all types of people in the country. 

15. The Tribunal asked the applicant why the BNP is the Bangladesh ‘Nationalist’ Party.  The applicant said he can tell his lawyer that later.  When the Tribunal commented that it would like him to tell the Tribunal about this now, the applicant said the BNP is combining opportunity for all people.  

16. The Tribunal asked the applicant if he would describe the BNP as a party of the ‘left’ or ‘right’ politically.  The applicant said both left and right.  When asked what he means by that, the applicant said he can’t remember exactly.  At the request of the representative, the Tribunal expanded on what it meant by left and right wing parties.  The applicant commented that the BNP is a democratic party.  When the Tribunal explained what it meant with reference to Australian politics, the applicant commented that the BNP is a leftist party.  When asked if the BNP is a strong supporter of Islam or is equally concerned about all religions, the applicant said they consider all people of all religions.  The Tribunal commented that it understands that in the past the BNP has been aligned with the more Islamist parties.  The applicant commented that was an alliance that included 4 other parties as well as an Islamic party, and added that the BNP is now in an alliance with 22 other parties, includes Hindus and Christians and has a Hindu ‘Minister’ as well.  The Tribunal asked if the party has a particular view on relations with India.  The applicant said the party is looking for friendly relations with India which is a neighbouring country which helped them during the liberation of their country.

17. The Tribunal asked how the aims, objectives and principles of the BNP differ to those of the AL.  The applicant said the BNP promotes education for women, with the previous BNP Education Minister offering free education for girls up to class 10.  He added that the BNP want to run the country with people of all other religious beliefs.  When asked how that differs from what the AL want to do, the applicant said BNP want peace throughout the country and to avoid conflict while the AL always wants to create conflict.  He said that since the AL came to power there have been 615 people abducted.

18. The Tribunal asked the applicant what the different elements of the BNP flag symbolise.  The applicant said there are red and green colours and a sheaf of paddy in golden colour.  When asked what the red and green colours symbolise he said the red symbolises their sacrifice of blood during liberation and the green is the natural colour of the country.  When asked about the mechanical wheel in the flag, the applicant said he can’t remember exactly now and will tell his lawyer later.

19. The Tribunal observed that the applicant indicated he joined the BNP Youth Wing as a volunteer when still at school in [grade] and that about two years later, because they were impressed with him, he became the local president of the youth wing for his village.  The applicant acknowledged that was the case.  He confirmed the advice in his statement that the union president, [Mr F], suggested he become president of the youth wing for his village.  When asked, he said this was around two years after he began as a volunteer.  When asked, he indicated he undertook this role until he left the country to go to [Country 2].  The Tribunal observed that in his statement of December 2015 he indicated he became the [Position 1] of the BNP Youth League for his village about two years after joining the party when he was a student in [grade].  While he described the role as ‘Shovapoti’ (president) in his statutory declaration of 1 October 2021, in both written statements he indicated he commenced with the BNP Youth Wing while in [grade], became a local leader about two years later and around two years later, in April 2012, was attacked after attending a BNP protest march. The applicant said he served as a volunteer for two years and then indicated he served as shovapoti until he left the country.  He said at the time he did not know the difference between shovapoti, [Position 1] or president.  The Tribunal asked what the difference is.  The applicant said shovapoti is a Bengali term for president.  The Tribunal asked if there is a different Bengali term for [Position 1].  The applicant said he can not tell the Tribunal that.  When asked if there was a position of [Position 1], the applicant indicated there was but he does not know the Bengali term for it.

20. The Tribunal observed that the supporting document he provided from his ‘boss’ at the time, [Mr E], dated 10 May 2012, refers to the applicant as a [Position 1] of the BNP.  The applicant said does not know why [Mr E] stated that, adding that he does not know whether president and [Position 1] are the same or not.  When queried that he had just indicated they are two different positions, the applicant said he does not know whether shovapoti means president or [Position 1] means president.

21. The Tribunal commented that there seems to be a problem with his statements because the time-line of events does not add up.  He is saying he first became involved with the BNP in [school grade] when he was [age] (that is in 2002) and around 2 years later he was made village president of the youth wing (that is, around 2004) and about two years after he became president he was attacked (that is, in around 2006).  However, he has stated that he was attacked in April 2012, rather than 2006 (resulting in him leaving for [Country 2] and subsequently coming to Australia in October 2012).  The applicant replied that he was attacked in 2012.  The Tribunal queried whether he is stating it was actually 8 rather than 2 years after he became village president of the youth wing that he was attacked.  The applicant said it was 8 years later.  When asked why both his statements say it was around 2 years later, the applicant said he does not know what he said and what was interpreted at the time, but he was attacked in 2012.

22. The Tribunal asked the applicant to tell it about his role as the shovapoti for his village over that 8 year period.  He said he used to organise gatherings based on messages from [Mr F], for example to celebrate the birthday of Vice Chairman Tarique Zia.  He said another thing he did was to protest against people coming and demanding money from people in the bazaar/market.  He said he also used to help people who were experiencing problems with food, clothing or getting medical treatment from a doctor.  He said he also tried to support the declaration by their leader Khaleda Zia that all women should be educated, by visiting homes to convince parents to allow their daughters to access this opportunity.  The applicant said he was very popular at the time because he was always with the people through their good and bad times and that is why the opposition AL party became very angry with him.

23. When asked, while he said it was ‘a lot’, the applicant indicated he could not remember how many people from his village were involved with the youth wing of the BNP.  The Tribunal commented that as president for eight years it might be expected he would know this.  The applicant said it varied every year and started around 100 but increased after that.  When asked how many were involved in 2012, after some prompting, the applicant said more than 200 young people.  The Tribunal queried that 200 youth of a total village population of 1500 seems an awful lot. The applicant indicated that the village youth all either belonged to the BNP or the AL.

24. The Tribunal asked the applicant how the role of the BNP youth wing differed from that of the main party.  The applicant said it was about the same.  He added that, as the youth pass on they tell the party things to older people especially the older generations.  The Tribunal asked the applicant to clarify what he meant.  The applicant said, for example, if people of the other party used to attack BNP people they would protest and they organised party political gatherings in their area.  When asked if these were different to meetings organised by the main BNP, the applicant said they used to organise the BNP gatherings, on instructions from the BNP leader at the thana (upazila) level.  When asked, the applicant indicated that because his was a small village, they did not have a BNP president for their village and the youth wing, which did not have an age limit for members, was more popular than the main BNP.

25. When asked, the applicant said he voted just once, in 2001, when BNP came to power.  The Tribunal queried that he would only have been [a minor] at the time and asked if people can vote at age [age] in Bangladesh.  The applicant said they can and reiterated that he voted in 2001.

26. When asked about the claimed incident following his attending a demonstration in support of [Mr D] in April 2012, the applicant said after attending the demonstration he went to his [shop] in the bazaar/market.  He said he was attacked on the road when he was returning home from the [shop].  The Tribunal observed that he had indicated in his statement that [Mr D] was a shovapoti at the district level.  The applicant acknowledged that was the case.  When asked what happened to [Mr D], the applicant said a lot of false allegations and false political cases were made against him.  The Tribunal again asked what happened to [Mr D] and what is he doing now.  The applicant said he was in jail but commented he does not know what he is doing nowadays.  When asked, he said initially [Mr D] was sentenced to six months but there were further cases against him and he was sentenced to further time in jail.  He said he can’t say what happened to him after that because he has been away for more than ten years now.  The Tribunal observed that he has indicated that [Mr D] was a senior colleague of his in the BNP Youth League and he went to a protest to support him, so the Tribunal thought he might have had an interest in what happened to [Mr D].  The applicant said he had an interest, but following his being attacked and coming to Australia, his communication with his country people is limited and he was fearful to give his address to people.

27. The applicant added that, because of his involvement on social media, his family were affected – his parents were asked where he is now and his brothers were tortured as well.  He said his nephew, who returned to the village from Dhaka because of COVID-19, and his nieces also have some problems staying in the village nowadays.  The applicant tearfully indicated his father is around 100 years old now and when he contacts his elderly mother she always tells him to stay in Australia where he is safe even though he wishes to see his mother.

28. The Tribunal asked if any other BNP Youth Wing members were attacked at the time he says he was attacked.  The applicant said he was alone and only he was attacked.  When asked, he indicated he thought he was singled out because he was the president of the party and was popular.  The Tribunal queried why they were concerned about his popularity.  The applicant said all the village people used to like him, even AL people.  When asked if he previously had been threatened by AL people, the applicant said they had threatened him verbally.  When asked why he thought they decided to attack him on this occasion, the applicant said they became angry because he did not heed their previous instructions.  When asked what had been said to him in the past, the applicant said they became angry because he used to help AL people and had encouraged those people to join the BNP.  He said he helped AL people because they are villagers and if they had problems he would help them because they helped all types of people.

1. The applicant said he was attacked by approximately 7 or 8 people.  When queried that he indicated in his statement it was 4 or 5 people, the applicant said he does not remember exactly as it happened ten years ago.  He added that he has a visa problem, he has family in Australia and if he returns to Bangladesh those people will kill him so he suffers trauma.  He indicated that he takes medication daily for his blood pressure.

2. The Tribunal asked what sort of knives were used in the attack.  The applicant said press-button knives.  When asked, he indicated he sustained injuries to his wrist and thumb from fending off a knife; on his leg; that he has 12 stiches on [Body Part 1]; and on his [Body Part 2], where he still has some skin missing.  He showed the Tribunal some visible scarring.

3. The Tribunal indicated that it had observed some differences in his statements that it wished to talk to him about, noting that it had already talked with him about the different accounts of how he had travelled to [Country 2] and the description of his role - whether it was [Position 1] or president.  The applicant commented that these may be due to problems with his lawyers or interpreters, he does not know.

4. The Tribunal commented that the way in which he described his role seems to have changed quite a bit from his first statement of 1 December 2015.  The Tribunal noted that at paragraph 8 of that document it was indicated simply that his role was looking after the village people and supporting them in their unhappiness/with their problems, giving them money for clothes or food or helping them get to the doctor if they were sick.  The Tribunal observed this suggested his role was more of a social welfare one as he did not refer to politics.  In his later statement of October 2021, however, he stated people would come to him with any issues or complaints they had, which sometimes related to politics, medical needs or the need for money for food or clothing; and other times he helped where people needed protecting from harassment of groups like the AL cadres.  He indicated that when the harassment happened he would go and warn the group causing problems to stop acting that way, and made sure BNP supporters stayed to offer protection if there was still a problem.  He indicated he also helped organise BNP supporters participating in protests and other BNP related events.  He stated that his work was a combination of assisting people in need of assistance; doing things as directed by the union chairperson, [Mr F]; and attending union meetings once a month chaired by [Mr F], with roughly 21 other village shovapoti, at which they received general instructions on how to proceed in their roles with the BNP.  The Tribunal observed that while his second statement still has a social welfare flavour, there are three new, more political elements (providing protection against harassment by AL cadres, organising participation in protests/other BNP related events and attending monthly meetings of all 22 union shovapoti).  The Tribunal asked why he did not mention those other things in his first statement.  The applicant indicated that he mentioned these things at the time but he does not know what his interpreter said or what his lawyer said at that time.

5. The Tribunal observed that the applicant provided different accounts of the injuries he claimed to have sustained in the attack.  In his first statement he refers to the [Clinic 1] discharge card indicating it states he had multiple cut injuries to his right thumb, left wrist and right heel.  In his second statement (at paragraph 22), however, he states they caused significant injuries to his head, hand and leg - this is the first time he mentioned having injuries to his head, which also is not something mentioned in the clinic discharge card.  The applicant said he did not know what was written on the discharge card because he did not understand English properly at that time.

6. The Tribunal observed that in his most recent statement he also introduced a new claim that, while he was at the [Clinic 1], he was warned by his brother and BNP members who were there to help protect him that AL supporters were coming to the clinic to attack him again, and so was able to escape before they could find him.  He also indicated that the discharge report was not given to him but his brother returned to the clinic later and requested it.  The Tribunal commented that neither of these matters were mentioned in his first statement which indicated that, after he was attacked, he was admitted to the clinic on [a day in] April and was discharged [later in] April 2012, and that the clinic gave him a report as he left the hospital.  The Tribunal asked why there was no mention of what seems to be a pretty significant matter – that he had to flee the clinic because he heard that AL supporters were coming to attack him again, and why he stated the report was given to him on discharge, rather than given to his brother later.  The applicant said his brother received the report.  The Tribunal commented that that is not what is stated in his first statement.  The applicant maintained that what is in the second statement is true.  He says he does not know what is in his first statement as he came by boat and was very fearful.  The Tribunal commented that it is not referring to the Entry Interview he had with the Department in October 2012, shortly after he arrived in Australia, but is referring to the statement of 2 December 2015, made three years after his arrival, which was submitted to the Department in support of the TPV application.  At the applicant’s request, the Tribunal restated what was included in his statement of 2 December 2012.  The applicant commented that he did not receive the discharge report when he left the [Clinic 1].  He said he is not sure what he mentioned when the first statement was prepared but it is true that he heard AL people were coming to attack him again and he fled the clinic.

7. The Tribunal also discussed with the applicant, in accordance with the requirements of        s 424AA of the Act, an inconsistency between what he said at the hearing (1 day and 2-3 weeks) and what the delegate recorded in her decision record he stated at interview on 5 October 2021 (3-4 days and 7-8 days), regarding how long he spent staying with his brother’s friend in Satkhira and then in Dhaka, after leaving the clinic.  The applicant indicated he understood why the information was relevant to the decision under review and did not require more time to comment or respond.  He commented that he came to Australia more than 10 years ago and indicated he did not write down where he stayed and for how many days in 2012.

8. The Tribunal asked the applicant about his statement at paragraph 17 of his statutory declaration of 1 October 2021, that AL supporters recently threatened his nephew in Bangladesh because his nephew would not answer questions regarding his whereabouts and when he would be returning to Bangladesh, because they know he is still actively involved with the BNP.  The Tribunal commented that it seems somewhat surprising, given that he had been in Australia for 9 years when the statement was prepared on 1 October 2021 (shortly before the interview with the delegate on 5 October 2021), that AL people would suddenly be interested in where he was and if and when he is returning to Bangladesh, and consider him a threat.  The applicant said they used to ask about him before that but because he does not have much education and does not follow the newspapers he does not know about the situation over there.

9. When asked, the applicant indicated he became involved with the BNP in Australia in 2014.  The Tribunal queried why there was no mention of this in his statement of 2 December 2015.  The applicant said he did not know he had to be involved in BNP politics in Australia.  He said he joined in 2014 and in 2016 he attended a celebration marking the birthday of the BNP Vice Chairman Tarique Rahman.  He commented that he has submitted a photograph of that celebration. The Tribunal asked the applicant what other activities he had been involved in with the BNP in Australia.  He said sometimes they celebrate the birthday of their Vice Chairman and sometimes they have gatherings in support of their chairperson Khalida Zia.  When asked if there were other things he was involved in, the applicant said they discuss how their party will become in power in their country.  When asked how they thought that might happen and what he sees as the key challenges the party faces, the applicant commented that the challenges they face include false cases against party people, abductions and that sometimes ‘they’ give injections to party leaders so they become mentally sick.  When asked what he thought they could do, the applicant said they are discussing these things with their general members and protesting about what is happening back in their country and demanding a neutral caretaker government.

10. The Tribunal asked the applicant if he has an official role within the BNP in [Australia].  He said he has membership.  He commented that the main office is in Sydney and since the COVIC-19 pandemic their discussions have been over the phone.  The Tribunal again asked the applicant if he has an official role with the BNP in [his region].  He said ‘just membership’.  The Tribunal commented that in his letter of support, [Mr G], [Position 3] of the BNP Australia, stated that the applicant became the [Position 2] of [Regional Branch 1] in 2016.  The applicant asked what the difference is between ‘member’ and ‘[Position 2]’.  The Tribunal commented that he submitted the letter and indicated it would expect him to know the answer to that question.  The applicant said he is doing publicity and social media.  When asked what that involves, he said they are posting on social media and they are doing publicity.  The Tribunal asked whether he is responsible for that.  The applicant indicated that it is his responsibility. The Tribunal observed that he has submitted copies of some [social media] group cover pages but hasn’t actually submitted anything that has been posted.  The cover pages indicate that a [the applicant] ‘Works at Australia’ but he has not provided anything that indicates he is the [Position 2] or that he has posted any material.  The applicant said he was fearful to mention his designation/role because they might attack him here as well.  The Tribunal asked whether any of the three pages provided are public.  The applicant replied, ‘yes’.  The Tribunal queried that he had not provided to the Tribunal copies of anything that he has posted on social media including anything that might be considered controversial.  The applicant asked if it is okay to submit something now.  The Tribunal indicated it was and encouraged the applicant to submit some material now.  The applicant indicated he would do this.

11. The Tribunal commented that when it looked at the letters of support he has provided, they seemed quite generalised and ‘pro-forma like’, and don’t indicate specifically what he did/does.  The Tribunal noted that a couple state that ‘Every time and every situation power full (sic) party tried to harm him’, which suggests the AL tried to harm him a lot of times but he had only indicated one incident where they attacked him. The applicant commented that while he was attacked only once, he was threatened several times verbally. 

12. The Tribunal also asked what was meant by the use of the work ‘missile’ in the letters.  The applicant indicated it is a Bengali word, ‘michile’, that refers to a public gathering.

13. The Tribunal observed that country information from DFAT indicates DFAT assesses that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread in Bangladesh.  DFAT comments that the risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files.[13] The Tribunal indicated that, while this does not mean that all documents or any particular document provided has been fraudulently produced, it does mean that the Tribunal has to be cautious about the weight it gives to particular documents.

    [13] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.39-5.44.

14. The Tribunal also discussed with the applicant DFAT country information regarding the treatment of people returning to Bangladesh as failed asylum seekers, noting that DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.[14]  The Tribunal noted that this does not take into account people who may be at risk of harm due to their political profile.  The applicant commented that he is very fearful of returning to Bangladesh.

    [14] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.24-5.30.

15. The representative indicated that she would make further comments in a written post-hearing submission but provided some oral comments at the hearing.  In relation to the applicant’s role within the BNP (and whether it is rightly categorised as president or [Position 1], she referred the Tribunal to a UK Home Office report from 2022 which comments on BNP internal processes at the grass roots level.  She indicated she would provide a copy of the report to the Tribunal.

16. The representative acknowledged that both the applicant’s statement of December 2015 and his statutory declaration of October 2020 were prepared with the assistance of [Agency 1], but noted their assistance is provided pro-bono and they have limited time and resources to provide assistance.  She noted that the first statement indicated it was only a summary of the applicant’s claims for protection rather than an exhaustive statement.  She submitted that concerns raised at the hearing regarding differences in the statements are not inconsistencies or omissions but matters have been drawn out in the later statement which provides further detail and clarity regarding his role.

17. In relation to the information from the SHEV delegate’s decision record put to the applicant under s 424AA, the representative asked that the Tribunal verify the correctness of the information referred to from the TPV delegate’s decision record by direct reference to the interview, if any adverse credibility conclusions are to be drawn regarding this matter.

18. In relation to the AL having an ongoing interest in the applicant since he left Bangladesh, and his nephew being approached in 2021, the representative submitted that the tactics and motivations of people in Bangladesh are not within the applicant’s knowledge, but country information confirms the tactics and approaches he describes and support his fears regarding returning to Bangladesh.

19. In relation to the applicant’s social media activities, the representative commented that, while the applicant has indicated he will provide examples of his activities on social media, it should be noted that the documents provided are screenshots of the BNP public [social media] group which clearly show the applicant is a member of that group, information that would be publicly available.  

    Post-hearing submission

20. The representative made a written post-hearing submission, dated 2 November 2022, providing legal submissions addressing matters that arose at the hearing regarding the internal structure of the BNP and the applicant’s role and credibility issues.[15]  As foreshadowed at the hearing, the representative submitted a copy of the September 2020 UK Home Office Country Policy and Information Note Bangladesh: Political parties and affiliation, and drew the Tribunal’s attention to commentary within that report regarding the structure and functioning of party committees at the upazila and union level, which indicates they appear to be formed in an ad hoc manner.

    [15] See the Tribunal files.

21. The representative requested additional time for the applicant to provide further letters of support regarding his BNP activities.  On 21 November 2022, further letters of support, both dated 14 November 2022, were provided from [Mr E] and [Mr H] (who had previously provided letters of support in September and October 2021 respectively).

22. At the time of decision, no examples of any material posted by the applicant on social media, including any posted as the [Position 2] for the [Regional Branch 1] of the [BNP], were submitted to the Tribunal.

    Assessment

    Identity

23. On the basis of the identity documents provided to the Department and noting the findings of both delegates in this regard,[16] the Tribunal accepts that the applicant is a citizen of Bangladesh and that his identity is as claimed.  The Tribunal accepts that Bangladesh is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [16] See the relevant Departmental files.

24. The issue in these cases is 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.

25. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    Credibility

26. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

27. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

28. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

29. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Background – Bangladesh politics and the security situation in Bangladesh

1. In considering the issues raised in these cases, the Tribunal has had regard to the following information drawn from the DFAT Country Information Report regarding the political and security situation in Bangladesh:[17]

   [17] DFAT Country Information Report, Bangladesh, 30 November 2022, sections 2.3, 2.24-2.26, 2.33, 3.61-3.63, 3.66-3.70, 3.77-3.82 and 3.89-3.91.

   Recent History

   Bangladesh has experienced significant political, social and economic turmoil since independence. A succession of assassinations and military coups d’état led to military rule for much of the 1970s and 1980s, before a series of popular mass democratic movements led to the establishment of parliamentary democracy in 1991. Elections between 1991 and 2006 saw power alternating between the AL and the rival BNP. Bangladesh briefly returned to military rule in 2007 following violent pre-election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018. Both elections were marred by violence, boycotts, and allegations of fraud.

   Security Situation

   The security situation in Bangladesh is volatile and can deteriorate quickly. Security threats include politically motivated violence, particularly ahead of elections; terrorist attacks committed by Islamist extremist groups; criminal violence; and sporadic clashes in the Chittagong Hill Tracts between indigenous groups and Bengali settlers over land ownership and usage.

   Political System

   Bangladesh is a parliamentary democracy. The unicameral National Parliament and the largely ceremonial presidency both have five-year terms. The Bangladesh Electoral Commission oversees elections. Elections in Bangladesh have not always been free, fair and inclusive, although regular changes of government have conferred some legitimacy on the electoral process. The Grand Alliance of the ruling AL won Bangladesh’s most recent election on 30 December 2018, winning over 96 per cent of seats (288 out of 298). The lead-up to the poll was characterised by violence, including street clashes, and allegations of targeted attacks against opposition figures. Both independent observers and opposition spokespersons alleged electoral irregularities, including the casting of votes and sealing of ballot boxes before polling day, and the intimidation and harassment of voters at polling places. The aftermath of the 2018 election was relatively peaceful, however, when compared to the aftermath of the previous election in January 2014, the most violent in the nation’s history.

   The Awami League (AL) and the Bangladesh Nationalist Party (BNP)

   Bangladesh has long had a two-party political system dominated by the AL and the 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.

   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.

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

   Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.

   Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (the largest Islamist party in Bangladesh). These restrictions have included:

   ·using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;

   ·using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and

   ·pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.

   Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.

   While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country. Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.

   DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.

   The BNP

   The BNP was founded in 1978 following the assassination of President Mujibur Rahman, and was established on a platform of Bangladeshi nationalism and Islamic identity. At its founding, and at the 2014 election, it cooperated with JI. In the lead-up to the 2018 election, however, BNP attempted to distance itself from JI as a way to demonstrate that it did not support extremist ideology.

   The BNP Standing Committee is the top decision-making body of the party. Various secretaries have responsibility over political portfolios, such as foreign affairs or information, within that body. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.

   Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.

   BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices. 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.

   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.

   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.

   Both the AL and BNP have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers or labourers). These organisations might be known by other names, such as ‘fronts’, ‘wings’, ‘associates’ or ‘leagues’.  Key BNP auxiliary organisations include the Jatiyatabadi Chhatra Dal (student wing) and the Jatiyatabadi Jubo Dal (youth wing).

   While the exact size of these organisations is unknown, they are large: local sources estimate that the AL’s student wing, the Bangladesh Chhatra League (BCL), alone has ten million people. The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities, and the auxiliary organisations maintain a high degree of autonomy.

   The auxiliary organisations support the political parties through fundraising and election-related activities. However, they also play a major role in inter-and intra-party violence. DFAT assesses as credible allegations that members of student wings are sometimes party activists rather than genuine students, and that auxiliary organisations engage in criminal activities on occasion, including violence and extortion.

   In rural areas, AL members and activists have reportedly extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money.

   Assessment of claims

2. While the applicant insisted at the hearing that he is of Bangladeshi rather than Bengali ethnicity, the Tribunal considers he is a member of the majority ethnic grouping in Bangladesh which DFAT indicates is Bengali (DFAT comments that about 98 per cent of the population is ethnically Bengali).  As the applicant has not claimed to be a member of a minority ethnic group or to be at risk of persecution due to his ethnicity, this difference of opinion is not relevant to the assessment of the applicant’s claims. The Tribunal accepts that the applicant is of the Islamic faith and that he was born and grew up in the Jessore district of Bangladesh.

3. The Tribunal finds the evidence indicates the applicant’s father is a relatively wealthy landowner and farmer.  The Tribunal accepts the applicant’s evidence that he also had a [shop] in the local market/bazaar, provided by his father, from which he sold [specified products].

4. The Tribunal considers that the most reliable evidence regarding the applicant’s departure from Bangladesh and travel to [Country 2] is contained in his SHEV application of 8 October 2020 and his statutory declaration of 1 October 2021.  The SHEV application indicates that he departed Bangladesh legally [in] May 2012 from Dhaka airport on a Bangladeshi passport.  The statutory declaration of 1 October 2021 indicates that the applicant departed Bangladesh in May 2012 flying from Dhaka to [Country 2] using a passport arranged by a travel agent, which included a 3 month [Country 2] business visa.  The applicant stated explicitly that he was assisted in this by a travel agent, not a people smuggler, and that he only made contact with people smugglers after he had been in [Country 2] for around two and a half months, in an attempt to get his [Country 2] visa extended.  In his previous statement of 2 December 2015, the applicant had indicated that information he provided at his Entry Interview with the Department, held on 31 October 2012, that he departed Bangladesh illegally by boat, was incorrect.  The Tribunal was concerned therefore that, at the hearing, the applicant altered his evidence and stated that he was assisted by a people smuggler to leave [Country 2].  Given the emphatic statements to the contrary in his statutory declaration of 1 October 2021, the Tribunal does not accept that this is the case. 

5. In general, the Tribunal finds it concerning that the applicant continues to provide differing accounts of his departure from [Country 2], particularly his initial advice that he went to [Country 2] illegally by boat from Bangladesh.  The Tribunal is not convinced by the applicant’s statements that he mistakenly said this because he was traumatised by the voyage to Australia, and considers it more likely that he said this at the time because that was what he was advised to say by the people smugglers who assisted him to come to Australia.

   Claimed involvement with the BNP

6. In general, the Tribunal found the applicant’s evidence regarding his claimed involvement with the BNP to be vague, generalised, lacking in spontaneity, inconsistent in significant and material respects and ultimately unconvincing.  For the following reasons, considered cumulatively, the Tribunal does not accept that the applicant was actively involved with the BNP in Bangladesh as claimed or that he was threatened and subsequently attacked and injured by AL supporters.

7. Firstly, there is a lack of clarity and consistency regarding the position within the BNP the applicant was said to have held.  In his initial statement of 2 December 2015, the applicant indicated that he became the [Position 1] of the BNP Youth League for his village ([Village 1]) about two years after joining the BNP, when he was a student in [grade].  As observed in the hearing, this would have been in around 2004.  He commented that as the [Position 1] his role was looking after the village people and ‘supporting them in their unhappiness’.  He indicated that if people had a problem he would help them by giving them money for clothes or food, or if they were sick and needed to go to the doctor he would take them there by motorcycle.  As observed at the hearing, this sounds like a social welfare type role - he did not indicate that he was responsible for any activities of a political nature.  The applicant also provided a letter of support, purportedly from [Mr E], President of the BNP [Branch 1], dated 10 May 2012, which stated that the applicant is a ‘[Position 1]’ of [Union 1] of BNP.  In the statutory declaration of 1 October 2021, however, the applicant stated he became the President (shovapoti) of the BNP ‘Jeubal Dal’ (youth wing) for [Village 1] and described his role as having significant additional political elements.  In a further letter of support from [Mr E], dated 20 September 2021 (and in his subsequent letter of support of 14 November 2022), the applicant is described as having been the ‘president’ of the BNP Youth Party for [Branch 1], rather than for his village of [Village 1], as the applicant previously indicated, or the [Position 1] for [Union 1] as [Mr E] indicated in his initial letter.  These do not appear to matters that can be attributed to errors by interpreters and lawyers or the ‘ad hoc’ nature of the BNP’s committee structures and operations at the grass roots level, given that the confusion and inconsistency extends beyond the applicant’s evidence to the supporting documents purportedly provided by his BNP superiors in Bangladesh.

8. Second, while the applicant claimed to be the head of the BNP youth wing for his village of 1,500 people, he struggled to say how many people in his small village were members, something the Tribunal considers the village ‘shovapoti’ would have a good sense of.

9. Third, as observed at the hearing, the time-line provided in both of the applicant’s statements, which indicates he was attacked in April 2012, around two years after he began working as ‘shovapoti’, does not add up.  If correct, that means the claimed incident where he was attacked by AL supporters would have been in around 2006.  When this was pointed out to the applicant he maintained that he was attacked in April 2012, indicating that he was Shovapoti for eight rather than two years.  He did not explain how this error went uncorrected in both his statements.

10. Fourth, at the hearing the applicant showed little understanding or appreciation of the ideology, aims and policies of the BNP.  As noted above, when asked about these issues at the hearing, he initially sought to read from a pre-prepared document, suggesting that he was expecting the question but was not comfortable responding to it.  When asked not to refer to the document, he sought to obtain assistance from his spouse, who attended the hearing as an observer.  When he did speak to the question, his comments were vague generalisations – essentially that the BNP wants to develop the country, do politics for everyone regardless of religion, and look after food, shelter, work and education for everyone.  He could not comment on why the BNP is the Bangladesh ‘Nationalist’ Party or how it differs in outlook to the AL (other than to state that the AL always seeks to create conflict).  He did not touch on important points of difference such as the BNP’s conservative outlook, support for a free market economy and traditionally greater accommodation of political Islam, compared to the AL’s broadly secular, liberal outlook and more positive view on relations with India.  While the Tribunal acknowledges that some of these concepts may be difficult to express, the Tribunal considers that someone who was a local BNP leader for 8 years would be able to give a sense that he has some appreciation of these issues and the key points of difference with the AL.  While the components of the BNP flag have been the subject of discussion at the interviews with both the TPV and the SHEV delegate, when asked about this at the hearing the applicant did not mention that there is a black wheel (representing industry) in the centre of the flag and a white star (representing their national hopes and aspirations) at the top.  When asked what the mechanical wheel in the centre of the flag represents, the applicant said he could not remember and would tell his lawyer later.[18]

    [18] >

    Fifth, when asked why he thought he was attacked after attending the rally purportedly in support of [Mr D] in April 2012, the applicant said it was because he was president and because he was popular.  Despite this, however, he indicated this was the only time he had been physically attacked in the 8 years that he claimed to have served in this role.  The applicant also suggested he has a high profile and some of the support letters state that he is a ‘well known BNP member across the Bangladesh’. It is not clear why that would be the case, however, if he was the head of the youth wing in a small village (of 1,500 people) as the applicant has claimed.  It also is not clear why the applicant would not have been physically attacked on previous occasions if he had been undertaking activities such as personally warning AL cadres who were harassing people to stop acting in that way, and ensuring BNP supporters stayed to offer protection if the problems persisted, and organising BNP supporters to participate in protests, as claimed more recently.  While the applicant claimed that he had been threatened verbally in the past, when asked what had been said, he did not provide any specific examples, or speak about instances that might have brought him into direct confrontation with AL cadres (such as organising and attending protests and/or personally warning AL cadres to stop harassing people), but simply stated they became angry because he used to help people, including AL people, and encouraged them to join the BNP.

1. Sixth, the applicant provided inconsistent accounts of the claimed attack on him in April 2012.  At the hearing he stated that he was attacked by 7-8 people rather than 4 or 5 as stated in his statutory declaration of 1 October 2021.  In his statement of 2 December 2015 he made no mention of fleeing the [Clinic 1] because he was warned that AL supporters were coming there to attack him again, or that the clinic discharge card was subsequently obtained by his brother rather than given to him on discharge as initially claimed.  Furthermore, he initially stated that he sustained cut injuries to his right thumb, left wrist and right heel, consistent with what was written on the discharge card.  Subsequently, however, he has claimed that he suffered significant injuries to head as well as his hand and leg.  At the hearing he [discussed his recovery from these injuries].  The Tribunal considers that if the applicant suffered a significant head injury at the time as now claimed, this would be noted on the [Clinic 1] discharge card and he would have mentioned it in his initial statement.

2. Furthermore, the applicant stated at the hearing that, after fleeing the clinic, he spent a day at his brother’s friend’s house in Satkhira and then spent 2-3 weeks in Dhaka before departing for [Country 2].  As discussed at the hearing (in accordance with the requirements of s 424AA) this was somewhat different to what he stated at the interview with the SHEV delegate (from the 1 hour 27:30 minute mark of the recording of the interview) where the applicant indicated he stayed with his brother’s friend for 3-4 days and then relocated to Dhaka for 7-8 days.  While the Tribunal accepts that it would be difficult for the applicant to recall the precise timeframes, the Tribunal gives some weight to the difference in the two accounts as being different enough to constitute a further example of the general vagueness and inconsistency of the applicant’s account.

3. Seventh, the letter from [Mr E] of 10 May 2012, shortly after the claimed attack on the applicant, makes no mention of the applicant having been attacked on [that day in] April 2012.  It simply states the applicant played a very important role for the BNP as a leader and wishes him all the best.

4. Eighth, when asked about [Mr D] at the hearing, the applicant indicated that he was not aware of what ultimately had happened to him.  The Tribunal considers that if the applicant was a local president within the BNP youth wing and attended a protest rally in support of [Mr D] as claimed, he would have an interest in whether [Mr D] was still in prison and, if not, what had happened to him.  This is particularly the case given the applicant claims to have been actively involved with the BNP in [Regional Branch 1] since 2014 and to have been active on social media in relation to BNP matters.

5. Nineth, the applicant claimed at the hearing that he voted once while he was in Bangladesh, in 2001.  When queried that he would have been [a minor] at the time and asked whether [people at this age] can vote in Bangladesh, the applicant indicated they can.  Country information, however, indicates that the minimum voting age in Bangladesh is 18 years.[19] The Tribunal does not accept that the applicant ever voted in Bangladesh.  If the applicant was a senior official in the BNP youth wing as claimed, it would be expected that he would have voted in the 2008 election.

   [19] The Constitution of the People‌‌‍’s Republic of Bangladesh | 122. Qualifications for registration as voter (minlaw.gov.bd)

6. Tenth, the applicant has claimed that he became involved with the BNP in Australia in 2014.  As discussed at the hearing, however, he made no mention of this in his statement of 2 December 2015.  Despite the applicant’s comments at the hearing suggesting he did not think it necessary to mention this in his statement, the Tribunal considers it is highly relevant to his claims and if true, considers the applicant would have mentioned it in his statement of 2 December 2015, submitted the day before he attended an interview with the TPV delegate.

100.   Eleventh, at the hearing the applicant did not indicate, despite prompting, that he was the [Position 2] for the [Regional Branch 1] of the BNP as was stated in the letter of support dated 5 October 2021 he provided from [Mr G], [Position 3] of the BNP Australia, and in the representative’s submission of 12 October 2022.  When queried about this, he suggested that there was no difference between being a member and being the [Position 2].  The Tribunal does not accept this is the case.  The applicant also indicated at the hearing that his family members were affected by his involvement on social media.  He stated that his parents were asked where he is now, his brothers were ‘tortured’ and his nephew also had problems as a consequence. While the applicant indicated at the hearing he would provide copies of his activities on social media, he has not provided any examples, either of postings made in a personal capacity or made as the [Position 2] for the BNP [Regional Branch 1], Australia.  The Tribunal also finds the applicant undertaking such activities and holding such a position to be at odds with his other statements at the hearing indicating that, following his being attacked and coming to Australia, his communication with people back in Bangladesh is limited and he was fearful to give his address to people, and that he does not have much education and does not follow the newspapers so does not know about the situation in Bangladesh.

101.   In making the above findings, the Tribunal has noted the DFAT advice regarding the issues with fraudulent documents produced in Bangladesh and the Tribunal’s inability to independently verify the genuineness of the letters.  The Tribunal also has considered the issues identified above regarding inconsistencies between the content of the letters and the applicant’s own evidence, and the generalised/pro-forma and exaggerated nature of much of the content of the letters.  For these reasons the Tribunal gives the letters of support submitted by the applicant little weight.  In this regard, the Tribunal finds that statements such as ‘He is well known BNP member across Bangladesh’, ‘He…actively working for BNP from Australia’ and ‘’Every time and every situation power full (sic) party tried to harm him’ are not support by the applicant’s evidence or any independent corroborating evidence.

102.   The Tribunal also has concerns that the discharge card purportedly from the [Clinic 1] could have been fraudulently produced or doctored.  Given the Tribunal did observe evidence of visible scarring on the applicant’s hand, the Tribunal accepts that he has suffered cut injuries at some time in the past.  While these injuries may be due to an accident, such as a motorcycle accident, the Tribunal also accepts that they may be due to an assault (as stated on the discharge card).  In this regard, the Tribunal notes the DFAT advice cited above that security threats in Bangladesh include the risk of criminal violence.  Given the weight of the Tribunal’s findings detailed above, and noting that the card does not indicate that the applicant had any injuries to his head (as claimed by the applicant in his statutory declaration of 1 October 2021 and at the hearing), the Tribunal, while accepting the discharge card may have been genuinely produced following the applicant being treated for injuries sustained in a random criminal assault, does not accept that the discharge card is proof that the applicant was assaulted by AL cadres in April 2012 as claimed.

103.   Given the photograph provided of the applicant at a BNP event in [a location], the Tribunal accepts that he has had some association with the BNP’s [Regional Branch 1].  Although the Tribunal accepts that it is possible that he is a member of that branch, for the reasons outlined above, the Tribunal does not accept that he joined in 2014 or that he became the branch’s [Position 2] in 2016.  The Tribunal also accepts that the applicant has joined some BNP [social media] groups, including one that is a public group but finds there is no evidence that the applicant is active as part of these groups.  The applicant has not provided the Tribunal with copies of any social media posts made by him, either independently, as part of a BNP [social media] group or as a BNP [Position 2].  For these reasons, the Tribunal also gives little weight to the letter of support, dated 5 October 2021, purportedly from [Mr G], [Position 3] of the BNP Australia.  The Tribunal does not accept that the applicant’s name simply appearing on a public BNP [social media] page gives rise to a real chance that he would suffer serious harm from the AL.

104.   Having carefully considered all the available evidence, the Tribunal concludes that, while the applicant may have been a supporter of the BNP while he was in Bangladesh, he was not the ‘shovapoti’ (president) or [Position 1] or local leader of the BNP youth wing for his village ([Village 1]), [Union 1], or [Branch 1].  The Tribunal does not accept that the applicant was actively involved with the BNP, organised and/or attended BNP rallies and/or protests or warned AL members, supporters and/or affiliates not to harass BNP people.  The Tribunal does not accept that the applicant was ever threatened by AL members, supporters or cadres or that he was attacked by AL cadres in April 2012.  The Tribunal does not accept that the applicant has been active on social media posting material regarding, or on behalf of, the BNP or critical of the AL government.  Accordingly, the Tribunal does not accept that people related to the AL have been questioning his parents, brothers, nephew or anyone else regarding his whereabouts and activities, and does not accept that any family members have been harmed or ‘tortured’ as a consequence.  The Tribunal does not accept that the applicant has in the past played, or currently plays, an important role in the BNP (including the youth wing), is a high profile and well known BNP member across Bangladesh and is of interest to the AL government, state-controlled agencies, AL members, supporters and/or their agents, or AL affiliates.  The Tribunal does not consider that the applicant would seek to play an active role in the BNP should he return to Bangladesh or participate in anti-government protest activities.

105.   Accordingly, the Tribunal finds there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm from the AL government in Bangladesh, state-controlled agencies, AL members, supporters and/or their agents or affiliated political groups, as a consequence of his political opinion supporting the BNP, should he return to Bangladesh now or in the reasonably foreseeable future.

Failed asylum seeker

106.   As discussed above, the Tribunal does not accept the applicant departed Bangladesh illegally but considers he departed legally from Dhaka airport with a valid Bangladeshi passport and [Country 2] visa organised by a travel agent. 

107.   The Tribunal accepts that the applicant would be returning to Bangladesh as a failed asylum seeker and may be returned involuntarily.

108.   As discussed with the applicant, noting DFAT’s assessment that most returnees (including failed asylum seekers ) are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily, and considering the Tribunal’s assessment that the applicant does not have a profile as a politically active BNP member or someone who has been involved in anti-government protest activity, the Tribunal finds remote the chance the applicant will face serious harm at the hands of the authorities on return to Bangladesh, including in the form of detention and/or imprisonment.

109.   The Tribunal notes DFAT indicates that, if those returning have a particular political profile, especially with the BNP, it is likely that their entry into Bangladesh will be noted, but DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.  DFAT comments that, while authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia, this is unlikely for returnees without such a profile.[20]  As indicated above, the Tribunal does not consider that the applicant has a political profile with the BNP that would be of interest to the AL government and its agencies.

[20] DFAT Country Information report, Bangladesh, 22 August 2019, sections 5.27-5.30.

110.   For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution from the AL government and its agencies on return to Bangladesh due to his status as a failed asylum seeker. 

Conclusion – Refugee grounds

111.   Having considered the applicant’s claims individually and cumulatively, for the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Bangladesh for any refugee reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

112.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.5J of the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection

113.   Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

114.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[21]

[21] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

115.   Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

116.   Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

117.   Considering the applicant’s individual circumstances and his claims singularly and on a cumulative basis, and having regard to the findings of fact set out above, the Tribunal also finds that there are not 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 as set out in s.36(2A) from the AL government in Bangladesh, state-controlled agencies, AL members, supporters and/or their agents, affiliated political groups, or any other authority, agency, group or person.

118.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Member of the same family unit

119.   There is no suggestion that the applicant satisfies s.36(2) based on 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

120.   The Tribunal affirms the decisions not to grant the applicant a protection visa.

Paul Windsor

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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