1826370 (Refugee) - [2019] AATA 6837

1826370 (Refugee) [2019] AATA 6837 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826370
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Anne Grant
DATE:31 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 31 October 2019 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – Bangladesh Nationalist Party – particular social group –– returned asylum seeker – victim of assault – false murder charges – fears harm by Awami League members – politically motivated violence – family targeted – relocation in home country not feasible – persecution relates to all area of Bangladesh – decision under review remitted
PRACTICE AND PROCEDURE – Ashmore Reef – excised offshore place – arrival in the migration zone – decision under review initially deemed fast track reviewable – reviewed by Immigration Assessment Authority – status as unauthorised maritime arrival invalidated by Full Federal Court decision on separate case – preliminary consideration of jurisdiction – valid application for a Safe Haven Enterprise Visa – right to seek further review by Tribunal

LEGISLATION
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 5, 36, 46A, 65, 66, 411, 412, 473CA, 499
Migration Regulations 1994 (Cth), Schedule 1, cl 1404, Schedule 2

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
DBA16 v MIBP and IAA [2017] FCA 1580
DBA16 v MIBP and IAA [2017] FCCA 320
DBA16 v Minister for Home Affairs [2018] FCA 1539
DBA16 v Minister for Home Affairs and Anor [2018] FCCA 2761
DBB16 v Minister for immigration and Border Protection [2018] FCAFC 178
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for a Class XE Safe Haven Enterprise (subclass 790) visa (SHEV) on 20 April 2016. The applicant has never held a Subclass 449 (Temporary Safe Haven visa). Required for the grant of a SHEV is that the applicant satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act. Those paragraphs set out the criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
The departmental file indicates that the applicant entered Australian waters within the territory of Ashmore and Cartier Islands (Ashmore Reef) aboard a boat codenamed [specified] and was brought to Darwin on or about 14 April 2013 as an unauthorised maritime arrival. He made a valid application, according to the delegate, for a Safe Haven Enterprise (XE790) Visa on 20 April 2016 after the minister exercised the power under subsection 46A(2) of the Act. The information before me establishes that the applicant has never held a temporary safe haven visa (or any other type of visa) since his arrival in Australia.
The delegate’s decision was deemed to be a fast track reviewable decision under s.473CA of the Act and was referred to the Immigration Assessment Authority (IAA) for review. The IAA affirmed the delegate’s decision on 15 September 2016.
On 18 October 2016, the applicant sought judicial review in the Federal Circuit Court of the IAA decision, on the basis that the IAA had failed to constructively review the delegate’s decision and denied procedural fairness to the applicant, and had given him inadequate opportunity to reply to adverse information. The applicant also claimed that, given that credibility was an issue in the IAA decision, by refusing to schedule an oral interview the applicant had been denied procedural fairness. This application for judicial review proceeded on the presumption that the applicant was a fast track applicant and was reviewable by the IAA. Judge Driver dismissed the application on 23 February 2017.[1]
[1] DBA16 v MIBP and IAA [2017] FCCA 320
The applicant appealed against the decision of Judge Driver to the Federal Court of Australia on 13 March 2017. The basis for the appeal was that the IAA reviewer failed to refer to the revised DFAT Country Information Report on Bangladesh despite the fact that it was released on 5 July 2016 and replaced that of 20 October 2014 which was used by the DIBP assessor, and that the IAA reviewer and the FCC judge denied the applicant natural justice. This matter also proceeded on the presumption that the applicant was a fast track applicant and was reviewable by the IAA. The appeal was dismissed by Justice Lee on 14 December 2017.[2]
[2] DBA16 v MIBP and IAA [2017] FCA 1580
On 6 August 2018, in another Ashmore Reef case where that applicant had been referred to the IAA for a fast track application due to being deemed to be an unauthorised maritime arrival (UMA), the Full Federal Court of Australia set aside the decision of the Federal Circuit Court and quashed the decision of the IAA which had been made on 16 September 2016. The Full FCA in DBB16 declared that:
1. The purported appointment of a port as a proclaimed port, an area of waters within the
Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette
No GN 3 on 23 January 2002 is invalid.
2. The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the
Migration Act 1958 (Cth).
3. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of
[3] DBB16 v Minister for immigration and Border Protection [2018] FCAFC 178. (DBB16)
the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016.[3]
On 10 September 2018, the applicant lodged a request for review of the decision of the delegate made on 20 July 2016 at the Tribunal, apparently based on an analysis of the DBB16 case and his own circumstances as now being entitled to a review of his original decision under Part 7 of the Act.
On 11 September 2018, the applicant filed a fresh application for review in the Federal Circuit Court, seeking an extension of time within which to make an application for judicial review to the court. He sought an extension of time to seek a review based on his having never been an unauthorised maritime arrival for the purposes of the Act and because the IAA never had jurisdiction, power or authority to review the delegate’s decision, based on the declaration made in DBB16. On 27 September 2018, Her Honour Judge CE Kirton QC refused the applicant’s application for an extension of time.[4]
[4] DBA16 v Minister for Home Affairs and Anor [2018] FCCA 2761
On 8 October 2018, the applicant commenced an originating application for relief in the Federal Court under s.39B of the Judiciary Act 1903 (Cth) seeking a writ of certiorari to quash the decision and orders of the Federal Circuit Court on the ground of jurisdictional error, and a writ of mandamus directing the Federal Circuit Court to determine the applicant’s application for an extension of time according to law. On 23 November 2018, the application was dismissed by Judge Wheelahan.[5]
[5] DBA16 v Minister for Home Affairs [2018] FCA 1539
The applicant’s situation, based on his having arrived in Darwin after being disembarked on or near Ashmore Reef, was analogous to and therefore affected by the decision in DBB16. This has been confirmed by the Department who formally re-notified the applicant on 10 April 2019 of the decision to refuse his visa on 20 July 2016 and informed him of his right to seek further review of the decision at the Tribunal. He lodged a second application to review the decision made by the delegate on 20 July 2016 at the Tribunal on 24 April 2019.
Preliminary consideration of Jurisdiction
The applicant does not hold a federal court declaration that he is not a UMA, because of Judge Kirtin’s judgment not to extend the time within which he could seek a review, as confirmed by Justice Wheelahan. Nonetheless, the IAA decision and the related Federal Circuit Court of Australia and Federal Court of Australia judgments (as referred to above) were legally based on the applicant having arrived in Australia at an excised offshore place (Ashmore Reef) and therefore being a UMA. The consequence of the Full Federal Court decision in DBB16 is that Ashmore Reef is no longer an excised offshore place. The applicant in this instance therefore first arrived in Australia at Darwin. Darwin is in the migration zone and is not an excised offshore place. The Full Federal Court decision of DBB16 is binding on this Tribunal and I conclude that the applicant was not a fast track applicant and so was never properly notified of the decision to refuse his application for a SHEV and his review rights until 10 April 2019. I consider that the judgements in DBA16 v MIBP and IAA [2017] FCCA 320 and DBA16 v MIBP and IAA [2017] FCA 1580 were reviewing the IAA decision in this applicant’s case. That decision has now become a nullity. In this review, I am not reviewing the IAA decision, but, subject to my being satisfied of my jurisdiction, conducting merits review of the original decision to refuse the applicant’s application for a Safe Haven Enterprise (XE) Visa.
The applicant has lodged two separate applications for review with the Tribunal. The first was on 10 September 2018,(number 1826370) subsequent to the Full Court’s declaration of 6 August 2018 that the proclamation of Ashmore Reef as an excised offshore place was invalid and prior to him being notified on 10 April 2019 by the Department of his right to seek review at this Tribunal after the reassessment of his case in light of the Court’s decision in DBB16. The re-notification of the Department’s decision did not create the applicant’s right to seek review of the original decision, it merely triggered the provisions of s.412 which stipulate that a request for review must be lodged ‘within 28 days’ of the applicant being notified of the decision.
The application for review of the delegate’s decision of 20 July 2016 must be based on the provisions of s.411 of the Act – namely it must be a Part 7- reviewable decision. In that context, and in light of the history of this case, I have considered whether the applicant’s application for a SHEV was valid and gave rise to review by the Tribunal, given the change in his ‘status’ from being a UMA to not being a UMA as a consequence of the DBB16 decision. UMA’s can only apply for a SHEV if the statutory bar to their doing so is lifted. In this case, the applicant’s application was deemed valid at the time it was lodged due to the fact that the minister had lifted the bar in s.46A of the Act in 6 November 2015 and invited the applicant to apply for a safe haven enterprise visa or a temporary safe haven visa. Based on the precedent in DBB16, the applicant was not an unauthorised maritime arrival, and therefore the validity of his original visa application must be considered using other legislative provisions.
Clause 1404 of Schedule 1 of the Migration Regulations 1994 sets out the requirements for a valid SHEV application:
1404 (3)
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b) Applicant must be in Australia.
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Safe Haven Enterprise (Class XE) visa may be made at the same time and place as, and combined with, the application by that person.
(d) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person is unable to make a valid application for a Protection (Class XA) visa and:
(i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or
(ii) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or
(iii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or
(iv) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa;or
(v) did not hold a visa that was in effect on the person’s last entry into Australia; or
(vi) is an unauthorised maritime arrival; or
(vii) was not immigration cleared on the person’s last entry into Australia.
The applicant was in Australia when he lodged his application for a SHEV, and his application was in the form, place and manner specified by the Minister. He was unable to make a valid application for a Protection (Class XA) visa, because he had not held a visa when he entered Australia and also because he had never been immigration cleared. The applicant arrived without a passport (or a valid visa) on a naval vessel. He was not immigration cleared on his entry into Australia. I am satisfied that the original application for a SHEV was a valid application as it met the requirements in item 1404, including 1404(3).
[The applicant’s] application was refused by a delegate on 20 July 2016. The applicant first sought review of this decision with the Tribunal on 10 September 2018. I am satisfied that the decision of the delegate is a Part 7 Reviewable decision under the Act (s.411(1)(c)) and that the applicant has review rights in the MRD of the Tribunal of the decision dated 20 July 2016. I am satisfied that I have jurisdiction to conduct this review.
The decision in DBB16 was made on 6 August 2018. Prior to that date, the applicant was deemed to be a UMA and subjected to the fast track process of review. From that date, I conclude that the applicant’s entitlement to seek review of the original decision via the provisions in Part 7 of the Act was enlivened. I am satisfied that this is so even though he had not been given (fresh) notice of the refusal of his visa application and his entitlement to seek review with the Tribunal. The first notification of the refusal decision by the Department was defective for the purposes of s.66(2)(d) of the Act, such that the prescribed time period in which to apply for the review did not start to run. I therefore accept the first application (number 1826370) for review of the decision made to this Tribunal on 10 September 2018 as properly lodged, and will make a decision on that review. In the second review application (number 1993949) lodged on 24 April 2019, the Tribunal does not have jurisdiction to review the same decision of a delegate twice – see Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771. A separate decision will be made in that application confirming that I do not have jurisdiction in that review once this decision is finalised.
The applicant is in detention and has been detained since his arrival in Australia in 2013. He attended a hearing at the Tribunal on 3 October 2019. The hearing was assisted by an interpreter in the English and Bengali languages. He was represented in relation to the review by his registered migration agent, who also attended the hearing.
CRITERIA FOR A PROTECTION VISA
As noted above, the criteria for a SHEV is that a person meets the criteria in ss 36(2)(a) or 36(2)(aa), (b) or (c). These criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). To satisfy the legislative criteria, he or she must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
The applicant’s written claims lodged with his application for a SHEV in April 2016 (approximately three years after he arrived in Australia) were that (in summary):
·The applicant is a citizen of Bangladesh and does not have a right to citizenship or to reside in any other country. He is Bengali and a Sunni Muslim.
·His father ‘abandoned’ the family when he took a second wife and the applicant was a young child. His older brother supported them as a farmer, working his own small plot of land and that of others. The plot was given by the applicant’s father to his brother when he left – they farmed [a range of produce] depending on the season. The applicant left school before completing [a certain year] to help his brother.
·In about 2009, he began working for his cousin [Mr A] in his [shop]. He worked there until he left Bangladesh, though he also continued to help his brother and work on other farms occasionally if he had time.
·Bangladesh National Party (BNP) meetings used to be held at his cousin’s shop. [Mr A] was [Official 1] of the [Village 1] BNP student’s wing in the greater [named location]. He was well connected to senior BNP officials as they often used to sit outside the shop and talk politics and organise meetings. About six months before he left the country, [Mr A] selected the applicant as [Official 2].
·Once he was [Official 2], the applicant became more active. He recruited more people. He would advise people that if they joined, the BNP would have more influence in the local area. This would include better development, more roads and bridges. He also used to say that the more people that belonged to the BNP, the more likely they would be protected.
·There were more Awami League (AL) supporters than BNP. AL members used to go to people’s shops and try to get money from them illegally. They told them about ‘events coming up’ and demanded money from them as support. They would threaten that if you didn’t pay the money, they would make it impossible for you to run your business.   This had happened to his cousin before he became [Official 1] of the [Village 1] BNP student wing. He was well known and popular. This strengthened his role in the community and his relationships with other senior leaders helped protect him and his business.
·One day in November 2012, about five or six local AL members came to the shop and said if he did not leave the BNP and join them he would be in trouble. He said no, and ignored them and continued his party activities, organising meetings and continuing to try to recruit new members.
·A few days later, there was a big BNP meeting to support the leader of the [named] District. There were processions and many people showed their support. When local AL members saw how many people attended, they became angrier. Many were there because the applicant had organised them to be there.
·The following night, some AL members came to the shop when he was working there. He saw them coming. There were at least ten of them and they carried [makeshift weapons]. He ran through the back door and left.   He knew two of them as AL supporters. He didn’t know the others but they were like a gang of people.
·They [caused a lot of damage to the shop]. His cousin went to the police but it was never resolved. As they were from the AL, they were never held accountable.
·A couple of nights later, he visited relatives in a neighbouring village. The following morning as he was coming back on his bike, five people stopped him and beat him up. He knew two of them from his village and that they were AL people. They kicked and punched him. One of them tried to hit [him] with a machete. He [has] a scar as a result.
·A few days later, there was a death in a fight over land on the other side of the village. He was informed that AL people had put his name forward as the person who had seriously injured the person, even though he had been working at the shop at the time. Then a local AL leader said if he joined the AL all the charges would be dropped.
·Two days later, he was at home when he heard that the police were asking about him and trying to find out where he lived. He decided immediately to go to his [sibling’s] house in [Location 1], because if they arrested him, it would be a long time before he would be able to prove his innocence. This house was around five kilometres away.
·He believed that the AL had all the power and he didn’t have the money to find a lawyer to represent him. He believed he would be locked up without any evidence or charges being laid, for at least six months. He was also scared if the police caught him they would beat him up and torture him and try to get a false confession out of him. While he was at his [sibling’s], four or five AL members went to his home looking for him. His brother knew these people. They verbally threatened the applicant’s brother to tell him where the applicant was.
·They came a second time and told his brother that when they found him, they would kill him. They kicked and broke the doors and windows. The applicant stayed inside at his [sibling’s] house in [Location 1]. His brother contacted him there and told him about the threats and that the AL supporters were looking for him. He told him to go to Dhaka and leave the country as soon as possible.
·The applicant went to Dhaka and tried to find the passport office. Just before he reached the office, someone approached him and said if he wanted to leave quickly, the man could help organise this by boat if the applicant paid them money.    The applicant agreed because he was afraid that he would be found and killed while he waited for his passport.    His brother leased some land and borrowed money, and the applicant left from [named location] by boat to [Country 1]. From there he was taken to [Country 2]. From [Country 2] he was taken by boat which was intercepted by the Australian navy and he was taken to Darwin around 14 April 2013.
·The applicant attached a police report stating the charges falsely laid against him, which he said the police brought to his home a few days after he fled.    About ten months after he came to Australia, the police found the actual perpetrators and ‘a court found he was innocent.’ His family sent him an original copy of the police clearance while he was in detention in [Australia].
·He had been told that the reason for him being detained was because of the police case against him and because DIBP wanted to conduct clearance checks. They must have known his documents were genuine to have continued to detain the applicant.
·Despite the charges being dropped, this has not solved his problems. He did not flee the country because of the charges.    He has always feared the AL supporters. Once they found out he had been cleared of the crime they threatened his family that if he ever came back they would find and kill him.
·He does not think that the authorities of Bangladesh can or will protect him. The AL supporters operate at village level and the police are unable to protect him from them. The Bangladesh authorities are AL leaders. All the forces, the police and the army are headed by AL people.
·The AL have power and influence all over Bangladesh. If he moves to another area, perhaps the local people wouldn’t be interested in him but if the AL supporters find out he is back, using their networks they can easily find him. They may not kill him themselves but will hire mastaans to do their work.

According to the delegate’s record, the applicant’s evidence at interview included the following additional information; (for the purposes of avoiding repetition, I have not included the delegate’s reference to restated evidence referred to above.)
·He provided detailed information about the BNP, its’ ideology as he sees it, its history and his role as [Official 2] of the [Village 1] Student wing from mid 2012. He had been a BNP supporter without responsibilities from 2009 to 2012.
·The applicant described how he recruited new members, organised their attendance at meetings both locally and at larger rallies in the area.
·In November 2012, he began having problems with the AL. He was identified by them because he was an obstacle to their agenda, he stopped the AL from extorting money and he was the reason people joined the BNP. He was seen at BNP rallies and he was approached by AL members at his cousin’s shop and told to join the AL or there would be consequences.
·He confirmed the incident where 10 AL members came to the shop and did extensive damage, and that his cousin reported it to police with no result.
·He confirmed the incident where he was attacked in the street by 5 ‘of the same’ AL members who destroyed the shop. He attended a doctor afterwards. He told the delegate that he thought it was a chance encounter and that they intended to attack him again at the shop. They were scared off when bystanders interrupted. He said this attack was never reported to the police. His cousin told him not to report it for a few days, and the applicant also confirmed to the delegate that he never approached any authority for help with his AL problems.
·The applicant returned home after the attack and told the delegate that he felt he could receive community protection at home, but did not provide further detail about how. Apparently the applicant’s representative later clarified that it was community protection from BNP members that the applicant was referring to – similar to a tribal form of community protection. In any event, he stayed at home for two days and nothing further happened to him.
·A couple of days after that, he heard of a murder in a nearby village and that he had been accused of the murder by the AL. The applicant thought this was their chance to have him jailed for at least 10 – 15 years without them being accused of a crime. They wanted him jailed, no longer killed. He had returned to his cousin’s shop to see the repairs. When the delegate suggested it was illogical to return there where he could be found and had been targeted, the applicant said that there were a lot of people around. He returned to the shop and kept working there until February 2013. He needed to work to support his family.
·The applicant said a messenger came to the shop a couple of days after he returned to work and gave him legal documents about him being accused of a murder in relation to a land dispute. Then the local AL leader came to the shop and said the situation could be resolved if he joined the AL. He referred to the supporting documents which he said were from the [named] police station, appear to be dated [in] January 2013, and list his father’s name. The applicant said that he also heard that the police were trying to find out where he lived. The delegate put to him that the AL had made the allegations and they knew full well where he lived.
·The applicant told the delegate that his name was cleared of the murder charge when the murderers were caught in approximately February 2014.
·In relation to his decision to go to Dhaka, the applicant told the delegate that whilst he was in Dhaka, he saw an AL person from his village and he was not sure if that person was there looking for him or for another purpose. The person did not see the applicant.
·He could not stay in Dhaka as the AL had threatened his brother and may find him in Dhaka.
·When the AL learned his name was cleared (approximately February 2014) AL members went to his house in [Village 1], harmed his brother and destroyed the house. The AL told the applicant’s brother they would find and kill the applicant, and that they also asked what country he went to.
On 30 September 2019, the applicant provided an updated statutory declaration which contained the following information in addition to the claims and information referred to above.
·He is experiencing problems with his memory. He finds it difficult to remember dates and the order of events. He is not certain of the dates and the order of events any more.
·The reason the AL supporters in his village want to target him particularly is because he motivated people to become BNP supporters and because he organised people to refuse their extortion attempts. In his area, his cousin and he were the two main people - the most active and vocal BNP supporters.
·The AL members were well known for extorting people for money in his village. They used to go to each business and ask the shop owners to hand over money immediately. If they did not, they would break the shops and destroy the stock, and threaten to kill the owner. They came to the family shop about once a month to take money from them.
·He believed that this process was wrong, and if enough people refused, the extortion would stop. He encouraged people to refuse. He thought they would have power in numbers as they (the AL collectors) couldn’t destroy every shop and carry out threats to kill multiple members of the village.    People started listening.
·Because of his association with his cousin, he too was by then well known in the village and had developed good relationships with people. He gradually got better about speaking about ideas for the village.
·When he stopped paying the AL, other shop owners did the same thing. The AL members knew that it was him who was encouraging people not to give them money. They lived in the village and saw his activities, and meetings at his cousin’s shop. Some people who were afraid of being killed still paid money. But the people who became organised with the applicant and the BNP did not pay.
·When he organised and attended rallies and the processions in the rallies, he was standing up the front, so was very visible as [Official 2] of the BNP student wing.
·6 – 8 months after he left Bangladesh, members of AL were still looking for him. They went to his home, where his mother and brother were home. They demanded he be handed over to them and beat his brother. They broke the door and damaged the house. In late 2014 or early 2015, they returned to the house because they had found out he was in Australia. He suspects that was because of the data breach. They told his brother to bring him back to Bangladesh – and they beat him again. They also pushed his mother and she fell over and injured her head. Then they lit fire to the house and burned it down.
·The applicant’s brother fled the village. His mother was homeless and had to move around between neighbours at the mercy of other people. The last time he heard from her, she said his brother had fled to [Country 3] because he was frightened of the AL. He does not know where his brother is.
·They threatened his mother on at least two occasions. They said ‘both of your sons are no good. They escaped our attack, so you sign off the land title and give it to us and get out of here.” His mother told them that the title is in her son’s name and she has no authority. They threatened to kill her if she didn’t bring her son back to the village. The applicant hasn’t spoken to her in four or five months. He doesn’t know where she is or if she is alive. He has no way of contacting anyone in his family, and is terrified the AL has done something to her.
·He believes he will be targeted because they will want to make sure he does not again become a vocal supporter of the BNP. If they find out that he has returned to Bangladesh, they will be looking for him. They will find his mother and any other family members who remain and threaten their life so he comes to their defence. He would have no choice but to protect them, and they will assault and try to kill him as they have done before.   He also fears another criminal case. The authorities in the village are all members of the AL or under the power of the AL. The authorities are corrupt.
·He does not have any family members who could provide him with protection or accommodation. The family house has been burned down. He does not know what is happening on the land and there is ‘nothing for him to return to in his village.’
·If he returns to Bangladesh, he will want to campaign against the AL again. His political views have not changed since he left. He is still a BNP supporter in his heart and mind. He saw what happened in the 2018 elections when he states that the AL won by intimidating voters with violence and attacks against BNP members and supporters.   However he will be afraid to participate in campaigns because he fears that he will be targeted, attacked or killed.
At hearing, the applicant again confirmed his involvement as [Official 2] of the student wing of the BNP in his village of [Village 1[ and the surrounding area. In particular, he gave more detail at my specific request, about how he ‘stopped the AL collecting money’ from local businesses in [Village 1]. The applicant explained that when he was recruiting and talking to local members, he explained to them that if they all banded together, they could refuse demands for extortion. He told people that the AL couldn’t attack them all – and that began to happen. When the AL collectors were seen in the village, a group of 40 – 50 BNP members would get together and descend on them and ‘send them on their way’. In this way, he became the AL’s specific enemy because it was known that this refusal to pay and show of force was due to his organisation. They faced the AL ‘collectors’ 3 or 4 times over a couple of months and told them not to come back. In the end, they did stop coming to collect money in [Village 1]. I noted that I understood that political ‘collections’ were a fact of life in Bangladesh. The applicant agreed, but noted that they were asking so much of the BNP members, (and only non AL members) in his village that it was making it difficult for people to survive.
I told the applicant that I had some concerns about his claims to be targeted specifically by AL in light of his cousin’s higher profile. According to the applicant’s claims, his cousin was a higher profile member of the BNP than he, was popular and active within the [Village 1] community. However, the applicant had never claimed that his cousin had been directly targeted by the AL. The applicant agreed that, although he had been indirectly affected by the attack on his shop, his cousin had not, as far as he was aware, been otherwise directly targeted for harm by the AL during the time the applicant was in Bangladesh. He said that he suspects that the reason for that was because his cousin generally got lower members to do the ‘grunt’ work which caused the local AL members grief, and it was easier to ‘get to’ the lower members. As a higher level BNP official, his cousin also had some level of protection due to his political connections. It was the applicant’s own idea to organise against extortion and he ran it by his cousin who said he was okay with the idea as long as the applicant was responsible for the organisation of the group. In that way, the applicant and not his cousin became the main target of the AL.
The applicant has lost contact with his brother. He understands that he has left Bangladesh due to the destruction of his home and harassment from the AL. The last he heard, his brother had gone to [Country 3]. His cousin has closed the shop and also left [Village 1] and the applicant does not know where he went or why. He does not know at present where his mother is or whether she is still alive.
The applicant told me that his mother has been continually harassed by the AL members to hand over the title to the land formerly farmed by his brother. They demand that she get his brother back to sign it over and threaten to kill her if she doesn’t agree. He has had no contact with her for 4 – 5 months.
The applicant said that due to the departmental data breach, if he returns to Bangladesh, the AL government will know that he has applied for protection in Australia and he will be presumed to be anti-AL – in opposition to the government. He faces imprisonment by the government for 10-20 years. The applicant said that the AL government is becoming even more powerful and suppressing all political opposition. During the hearing, with my permission, his representative played a video of a recent news report from Bangladesh (interpreted by the interpreter during pauses of the video) where a senior law enforcement officer was shown demanding that all BNP members in his region must ‘surrender within 7 days’ or they will be arrested. The reporter observed that the police must be acting on the authority of the politicians - not the law, and that this bold demand suggests a level of government suppression of opposition which is alarming - and on the rise. The law enforcement officer in the video goes on to say that BNP members will lose their jobs if they do not comply with the law.
The delegate did not accept the applicant’s claims at all, finding that he was not a target for the AL. In summary, the delegate reached this conclusion because the applicant had not been repeatedly attacked despite living in his home village and working in the period from November 2012 to February 2013; because even when he ‘relocated’ it was only to his [sibling’s] house 5 kilometres away (and he was not found there), and because there were only two incidents of the AL searching for him since he left Bangladesh. The delegate did not accept that the applicant was or would be at risk from the AL in Bangladesh; that he had a false murder accusation imposed on him by the AL; that he received any adverse attention from the AL in Dhaka; has been affected mentally by the length of time in Detention; and that he travelled to Australia because he requires protection. The delegate found it highly improbable that the applicant would have an imputed political opinion of opposition to the Government of Bangladesh applied to him because of the data breach and did not have a real chance of being persecuted for that reason. The delegate also found that the country information did not suggest a risk of harm for returnees.
I had noted to the applicant at hearing that he appeared not to have raised the issue of his organising against and stopping AL extortion with the Delegate or in his written claims, and also did not appear to have raised the issue of his house being burned in 2015 or 2016. The applicant said it was a long time ago now but he believed that he had raised both with the delegate at interview, and thought that he had informed the IAA about the house being burned in a letter. I noted that according to the delegate’s record of decision, it had been put to the applicant repeatedly that he did not think the applicant would have a profile of any significance that would be of interest to the AL. The applicant agreed that the delegate had indeed done so, and that he had always responded that he was their enemy and explained why. He responded that he had certainly told the delegate about ‘stopping the extortion’ but the delegate would then ignore that and switch topics. Also, in 2016, his own mental health wasn’t good and he forgot a lot of information when talking to the delegate. His representative then told him not to mention new information in his recent statutory declaration.
Subsequent to the hearing, in light of this evidence, I listened to the delegate’s interview with the applicant. I noted several references by the applicant during that interview to his having ‘stopped’ extortion demands by the AL in his area as part of the applicant’s explanation about why they responded so quickly and brutally to his being an officer of the party, why he had become ‘their enemy’ and why he would have a profile which meant that they wanted to harm him. The applicant repeatedly explained that he had been successful in recruiting and organising (and attending) meetings and rallies, and that he had ‘stopped Awami League’ from collecting ‘extortion’ money from his local community.
At 2:04 in responding to questions about his involvement in and attendance at rallies, the applicant said that the city rally was about a year before he left Bangladesh. Then, because he attended that meeting and extended his support to his cousin and then sort of stopped them collecting the money, he became their enemy. A lot of people joined the BNP and that is why he became their enemy. He later clarified (at 2:07 and at 2:10) that the rallies and meetings were held in November 2012, and that it was after that that they wanted to beat and harm him and because of that, they implicated him in the case.
At 2:20 the delegate asked when the applicant started to have problems. After a lengthy response, the interpreter gave the applicant’s answer as: “After I tried to explain to the students to join BNP and a lot of people joined, and I also put a stop on the collecting of money by the AL people, and I attended the meeting and rallies, so after seeing that, it started.”
At 2:20 the applicant further explained that all the BNP students were united and they had stopped the extortion and they gave him a threat that he should not be doing that, he had to stop that and join their party. At 2:24 he confirmed that he told his cousin, who said this is very normal if you become involved in politics. He didn’t take it too seriously. It was a couple of days later that they came to the shop to attack him.
At 2:25 after the applicant described sneaking out the back door when he saw the group approach, the delegate asked: “What was it about you that made you a target for them?” The applicant responded “They proposed me to join; and I didn’t, and when I talked to the people a lot of them joined or supported BNP; and then I stopped them collecting the money. These are the main reasons.” He then added “Because of me they cannot extort the money from the people, and a lot of people joined the BNP.”
In relation to the claim about the burning of his home, the ongoing harassment of his mother (including her being assaulted), the recent continuing threats to and assaults on his brother and the fact that his brother and cousin have now fled the area, my subsequent consideration of the delegate’s interview discloses that these appear to be new claims raised before me for the first time. I do accept that the applicant has previously claimed that the house was destroyed but not that he ever told the delegate that it was by fire. In any event, my understanding of his evidence was that these events concerning his brother, his mother and his cousin appear to be recent occurrences. I am unclear whether the house was burned by fire in one of the earlier attacks or if it was finally ‘destroyed’ by fire more recently. What is clear and has been consistently claimed, is that the family home was destroyed and subject to multiple attacks by AL members looking for the applicant. I do not consider the method of destruction is particularly critical to my assessment of the applicant’s claims as a whole, or to my assessment of the credibility of his claims. I have borne in mind the fact that the applicant has only ever heard about these events from his family and did not experience them himself, so there is a potential for confusion in details given the passage of time. I do not intend to place any weight on the applicant’s failure to mention the house’s destruction by fire in 2015 or 2016.

The delegate’s interview record reveals that the applicant’s claim to have a profile of significant adverse interest to the AL due to his effective recruiting, organising attendance at BNP events and critically having ‘cut off’ AL extortion income in his home village was indeed raised before the delegate and has been consistently put by the applicant. I note that the delegate did not interrogate the circumstances of how the applicant ‘stopped’ extortion payments, despite it being repeatedly raised as noted above.
Country Information
The most recent DFAT report on Bangladesh, dated 22 August 2019, noted the following in relation to the general situation in Bangladesh:
2.3 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 Bangladesh Nationalist Party (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 (See Political System).[6]
[6] Department of Foreign Affairs and trade (DFAT), “DFAT Country Information Report: Bangladesh” (22 August 2019) <hhttps://dfat.gov.au/about-us/publications/Documents/country-information-report-bangladesh.pdf>, 8.
On the position of the BNP in relation to other political parties, and especially the AL, at the time of publication, the second-most-recent DFAT country report, published on 2 February 2018, noted:
2.22 The 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. According to the European Union’s Election Observation Mission, authorities in the 2014 national election failed to create the necessary conditions for transparent, inclusive and credible elections. The BNP boycotted the election, leading to a landslide victory for the AL, which won 234 seats (153 of which were uncontested). The Jatiya Party took 34 seats and independents 13, while the remaining 19 elected seats were divided between several minor parties. BNP candidates have competed in local government and council elections since December 2015. Most observers expect the party to participate in the next national elections in late 2018 or early 2019.[7]
[7] Department of Foreign Affairs and trade (DFAT), “DFAT Country Information Report: Bangladesh” (2 February 2018) < 8.
In relation to the December 2018 general elections, DFAT in 2019 observed that:
2.26 […] 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 (see Bangladesh Nationalist Party (BNP). 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.[8]
[8] DFAT Country Information Report: Bangladesh, n 2, 12.
The most recent DFAT country information on Bangladesh noted the following about the longstanding animosity between the opposition BNP and ruling AL:
3.61 Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.
3.62 The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.[9]
[9] Ibid., 24-25.
DFAT made the following general assessment about the risk profile of those active within the BNP:
3.55 DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.[10]
[10] Ibid., 25-26.
The most recent DFAT country information on Bangladesh made the following observations about the size and activities of the student wings of the major Bangladeshi political parties and the effective oversight of these parties over their student wings:
3.89 Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers and labourers). 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.
3.90 The auxiliary organisations support the political parties through fundraising and election-related activities. They also play a major role in inter- and intra-party violence (see Politically Motivated Violence (PMV)). DFAT assesses as credible allegations that members of student wings are often party activists rather than genuine students, and that auxiliary organisations are often a front for criminal activities, including violence and extortion. The BCL has effectively controlled public university campuses since 2009, preventing members of other parties’ student wings from undertaking activities and even from sitting examinations. 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.[11]
[11] Ibid., 28.
On the prevalence of politically motivated violence (PMV) in Bangladesh, DFAT noted in its most recent report:
3.92 Bangladesh is historically prone to high levels of politically motivated violence (PMV). Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party (intraparty violence), supporters of rival parties (inter-party violence), between party supporters and law enforcement agencies, and between issues-based, politically motivated protester groups and law enforcement agencies and/or party auxiliary organisations. Fatalities and serious injuries often result from these clashes. PMV tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.
3.93 The number of casualties resulting from PMV varies from year-to-year. In 2018, Odhikar reported that 120 people were killed and 7,051 injured in PMV-related incidents, compared with 77 deaths and 4,635 injuries in 2017 and 215 deaths and 9,053 injuries in 2016. The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV leaving hundreds dead and thousands injured across the country. As was the case in 2015, 2016, and 2018, local government and council elections in March 2019 continued to be marred by high levels of PMV. The period leading up to the December 2018 national elections was also marked with some violence, primarily of an inter-party nature, but PMV-related deaths and casualties were significantly down and the aftermath was relatively peaceful compared with the national elections held five years earlier.[12]
[12] Ibid., 29.
However, DFAT assesses that, in recent years, PMV in Bangladesh had shifted from interparty violence to intraparty violence, as a consequence of the AL’s domination of state institutions:
3.94 Intra-party violence has become far more common than inter-party violence, particularly between AL factions and individuals. In 2018, Odhikar documented 281 cases of AL intra-party violence resulting in 53 fatalities and 3,225 injuries, but only 14 cases of BNP intra-party violence resulting in three deaths and 115 injuries. These figures were roughly equivalent to those of preceding years. DFAT understands that the high frequency and intense nature of AL intra-party violence can be attributed to the party’s control over state institutions in recent times. This domination has led to competition between rival AL factions and individuals for pre-selection as electoral candidates, and therefore access to, and influence on, processes and outcomes of lucrative contracts, tenders and appointments to senior party positions.[13]
[13] Ibid., 29.
The most recent DFAT country information on Bangladesh, from 2019, noted the following about the AL’s actions to restrict opposition activities, including the use of arrest and police and security forces:
3.67     Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI (see relevant sections). These restrictions have included:
·     using police and other security forces to arrest thousands of opposition political paty 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.[14]…
3.80     BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.
3.81     Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.
3.82     DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.[15]
[14] Ibid., 25.
[15] Ibid., 27.
A COISS Q&A report of 29 August 2018[16] made the following observations on the issue of extortion attempts against business owners known to support the BNP:
Limited information was located on the risk to a prominent business proprietor who is known to be a significant financial supporter of the BNP. It is reported that businesses make large payments when asked by both the dynastic parties, with many making larger payments to one over another to reinforce the better crony networks they have with that party for securing government contracts and other favourable treatment when their favoured party is in power. There is reportedly a culture of clientelism which dominates all parties. Those who contribute money and other support enjoy benefits when the party comes to power, including government contracts, access to jobs and business opportunities. In rural areas, Awami League members and activists reportedly extort business owners affiliated with the BNP. In some cases, the government allegedly had the Anti-Corruption Commission initiate or threaten inquiries into some businesspeople, newspaper owners, and civil society members for criticising the government. The ruling Awami League in Bangladesh is reported to have consolidated political power through sustained harassment of the opposition and those perceived to be allied with it, as well as of critical media and civil society voices.[17]
[16] 'Bangladesh: CI180727105903354 – Extortion – Political Parties – Businesses – Awami League – Bangladesh National Party – South Dhaka City Corporation – 2015 Elections – Sayeed Khokon – Haji Salim', Country of Origin Information Services Section (COISS), 29 August 2018, CR837DFFB303
[17] Ibid., 4-5.
The Bangladeshi human rights monitoring group Odhikar’s most recent survey on human rights issues in Bangladesh (dated 8 August 2019) made the following observations about the prevalence of attacks on BNP supporters through 2018:
The level of attacks and suppression on opposition party candidates and their leaders and activists before the December 30 Parliamentary elections had never been seen in the history of Bangladesh’s polls. Prior to the election, a large number of arrest operations had been carried out against leaders and activists of the opposition (mainly BNP) and dissidents. During this period, numerous criminal cases were filed against central opposition leaders, including grassroots activists; many of them allegedly fabricated. Furthermore, the names of the deceased1, bedridden or very elderly persons or those imprisoned at the time of the claimed incident; and people living abroad, were also included as accused in these fictitious cases.[18]
[18] Odhikar, “Annual Human Rights Report on Bangladesh 2018” (8 August 2019) < 4.
In relation to the 2014 Data Breach, I note that the Department of Home Affairs engaged audit firm KPMG to conduct a forensic analysis of the 2014 data breach. That report, handed down on 20 May 2014, noted the following about the breach itself:
4.3 Forensic examination of the data disclosure
Our observations with respect to the forensix examination of the data disclosure are summarised as follows:
§123 accesses via 104 unique internet protocol (IP) addresses attempted to retrieve the file at least once. Analysis of available data has provided the DIBP with some indication of the likelihood of each IP address having access to the personal information of detainees;
§It is not in the interests of detainees affected by this incident to disclose further information in respect of entities to have accessed the Document, other than to acknowledge that access originated from a range of sources, including media organisations, various Australian Government agencies, internet proxies, TOR network and web crawlers;
§Attempts were made by KPMG Forensic, as instructed by the DIBP, to reduce the risk of republication of the material obtained in the Document where a high likelihood of this occurring was identified. Any such efforts were considered in the context of DIBP wanting to avoid disclosing any information which may alert potential recipients of their possession of, or ability to access, the personal information;
§We have not identified any indications that the disclosure of the underlying data was intentional or malicious; and
§The DIBP provided us with earlier versions of the publication, which it had released in prior months. Our review did not identify the same issue, so it appears isolated to the version dated 31 January 2014.[19]
[19] KPMG, “Management Initiated Review: Privacy breach – Data management. Abridged report” (20 May 2014) < 10.
Freedom House, in its annual survey of internet freedom called Freedom on the Net, made the following observations on internet access in Bangladesh generally, and the Bangladeshi government’s internet surveillance capacities generally, in the most recent report dated 2018:
Obstacles to Access
The International Telecommunication Union estimated internet penetration in Bangladesh at 18 percent in 2016. Government estimates were closer to 46 percent.
Information and communication technology (ICT) usage is increasing quickly, though Bangladesh lags behind globally. The World Economic Forum 2016 Global IT report ranked Bangladesh 112 out of 139 countries worldwide in its Networked Readiness Index. The country scored poorly on infrastructure and regulatory environment, though overall communication service was comparatively affordable—a factor that is driving increased usage.
The government has decreased the price of bandwidth significantly over the last decade. The Alliance for Affordable Internet has reported, citing 2015 data, that 80 percent of the population in Bangladesh can afford a 500 MB mobile broadband plan based on local income levels, one of the highest percentages among less-developed countries. The ability to access localized information and create content in Bengali has contributed to the popularity of local blog hosting services.
However, users complain about the high cost of private internet service in rural areas. Although no statistics are available, the higher concentration of economic activities and critical infrastructure in urban areas indicates there are likely to be more internet users in cities. The government’s 2009 “Digital Bangladesh by 2021” program seeks to integrate internet access with development efforts in national priority areas, such as education, healthcare, and agriculture. In 2016, 4,547 Union Digital Centers had been established by the government to provide low-cost internet access and related e-services in low-income communities.
In September 2017, citing security concerns, the Bangladeshi government banned Bangladeshi telecommunications operators from selling mobile phone connections to Rohingya refugees, undermining access to the internet for hundreds of thousands of people who had fled to Bangladesh from neighboring Myanmar. The government also threatened operators with fines if they ignore the ban.[20]
[20] Freedom House, “Freedom on the Net 2018: Bangladesh” (2018) < type="1">
The most recent DFAT Country Information report, dated 22 August 2019, made the following observations of the treatment of returned asylum seekers to Bangladesh:
Exit and Entry Procedures
5.24     The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh’; or where doing so would be contrary to the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
5.25     The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. Authorities require permission from both parents before allowing travel by a minor (children under the age of 12). Minors who have passports or whose names are listed on a guardian or parent’s passport may travel with only one parent.
5.26     Bangladesh is largely surrounded by India, and a number of land border crossings exist. There are 32 checkpoints in total and 24 of these are operational. One crossing exists at the border with Myanmar. Some parts of the border are fenced and some parts are open. Bangladeshi border police cooperate with Indian Border Force officers. There have been some recent cases of farmers and agricultural workers being killed when crossing the border with India away from official checkpoints. Indian border officers have generally blamed these cases on the victims being mistaken for drug traffickers. DFAT assesses that those crossing the border outside of regular checkpoints may be at risk of being killed when trying to cross the border.
Conditions for Returnees
5.27     Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladesh citizenship of returnees (including for Rohingya) before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organization for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
5.28     DFAT is aware of cases, both recent and historical, of people leaving Bangladesh on false passports to seek work abroad, including Rohingya. In some cases, people on false passports have successfully lived and worked abroad for years before being detected. The false passports used in these cases are often genuine passports that have been fraudulently obtained, in some cases through paying bribes to officials. If such cases cause media attention, it is likely that people who are returned for holding fraudulently obtained documents will be detained and questioned by police. DFAT is not aware, however, of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.29     Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted (see Bangladesh Nationalist Party (BNP)). DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
5.30     DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.[21]
[21] DFAT Country Information: Bangladesh, n 2, 49-50.
The applicant’s involvement with the student wing of the BNP in [Village 1].
The applicant has consistently claimed that he had been an ‘ordinary member’ of the local BNP since around 2008 or 2009. His cousin held a prominent position in the [Village 1] Student Wing of the BNP and the shop his cousin owned (and in which the applicant worked) was a meeting place for members. The applicant has consistently claimed that he was elevated by his cousin to [Official 2] of the local chapter of the student wing in approximately mid-2012. Given the consistency of his claims, the applicant’s level of personal knowledge of the party, its’ operation and his own role within the organisation, I accept the applicant’s claims that he was a long term ordinary member of the BNP elevated to the role of [Official 2] of the [Village 1] Student Wing in mid-2012.
Based on the overall consistency of his claims as recorded above, I also accept that the applicant undertook a public recruitment and organising role on BNP events once he became [Official 2] and also that he organised his local villagers to effectively resist and repel AL collections of extortion money within his local community with a show of opposition force.
I accept that the applicant was targeted by local AL members because of his activities, and that he was warned to desist and instead to join the AL party. I have considered his evidence and the country information as a whole about the level of political violence in the country, in the lead up to the 2014 election, and also during the recent 2018 election.   I consider that his encounters with the local AL members have been consistently described and are plausible, given that the conduct is generally consistent with the country information which suggests that politically motivated violence was at its’ worst in the lead up to the 2014 election. I consider that it is plausible and I accept that he was attacked physically and threatened by AL members, that they damaged his cousin’s shop, that they attacked him on the street and that they threatened to have him charged with a false murder charge. Particularly given his effective severing of their political extortion funds, I accept that the applicant became a person of interest to the [Village 1] and district AL members and that they targeted him for harassment, attack and persecution in around November 2012.
I do have some concerns about the applicant’s evidence related to the false murder charge. Like the delegate, I cannot accept the claimed ‘police report’ to be evidence that he was actually ever charged with an offence.   I found the whole of the evidence about the charge and it subsequently being ‘disproved’ to be implausible. I do not consider it plausible that he would be able to continue working from December 2012 to February 2013 without being arrested and officially charged by police given the seriousness of the charge and allegation. I do not consider it plausible that the police would have only looked for him one time and then stopped looking for him after speaking with his brother once. I do not consider it plausible that a charge of murder would be delivered by a private messenger. The applicant’s evidence about this charge was uncharacteristically lacking in clarity and detail when compared to his principal evidence and claims.   I do not accept that (as he claimed in his written claims) he was found not guilty of a murder charge by a court. I consider that it is possible that he was threatened with a false allegation at some point by local AL members and that this was one of the reasons why he fled [Village 1]. I do not accept that he was in fact ever so charged or ‘proven not guilty’. I consider that the applicant has embellished these claims to strengthen his claim for protection.
Similarly, I do not accept that the local AL members were aware of him being in Australia in 2015.   This was not raised prior to the recent statutory declaration or before the delegate and I consider this evidence is a recent invention and has been added to strengthen his protection claims and to place emphasis on the risks to the applicant from the Departmental data breach.
I have considered his new claims concerning acts by the AL against his family recently. The applicant has consistently claimed that his house was destroyed and his brother harassed after he left [Village 1] and also after the applicant had arrived in Australia.    Ongoing and recent harassment by the AL of his mother, brother and cousin is not implausible in that context, and particularly bearing in mind the political climate of overwhelming AL majority in Bangladesh and the consequent substantial power imbalance in smaller communities between those aligned with the respective political parties. I have carefully weighed the new claims about fire being the cause of final destruction of the home, that his brother has fled Bangladesh due to ongoing AL harassment, that his cousin has closed the shop and left the region and that his mother has been harassed and assaulted and is now homeless due to AL demands about the family land. Even though I have found that some of the applicant’s other claims have been embellished or not established, I found him to be generally credible in his evidence about the recent loss of contact with his family and the reasons for that loss.   On balance, I do accept that his mother has been harassed by land claims from local AL members, his brother has been harassed and has fled Bangladesh and that his cousin has closed down his shop and relocated to an unknown location. I accept that he has not spoken to his mother (at the date of the hearing) for more than four months and is unaware of her wellbeing. I accept his evidence about these new claims and that they demonstrate that he and his family are of continuing interest to local AL members in and around [Village 1].
I do accept that the applicant is a person who would be of adverse interest to AL members, and potentially police and authorities in his home area who are affiliated with them, due to his history as an active BNP member and official. Over recent years, the country information suggests that the AL has become emboldened in suppressing opposition due to holding an overwhelming majority of the government seats. I consider that in the current political atmosphere, it is plausible that local grievances such as those explained and experienced by the applicant might be more readily pursued and avenged by local AL ‘thugs’ – and with apparent immunity, given the power structure of local authorities including police.   In that context, I find the applicant’s claims that his family has been harassed since he left Bangladesh and their property destroyed by AL members intent on destroying the applicant and his family - is plausible, even though I consider that he has embellished his evidence about the murder charge and about anybody knowing he was in Australia. I consider that just as time can sometimes weaken the strength or intentions of an enemy, it can sometimes strengthen their power base and encourage aggression against defenceless foes, particularly those without any meaningful resistance or reliable legal recourse. The country information suggests that AL members hold positions of authority throughout the country, including in police and justice department offices. Based on the harassment of his family, I therefore accept that the applicant continues to be and would be of adverse interest to local AL members in his home area, even though several years have passed since he left [Village 1]. Given the consistency of his evidence about what he personally experienced prior to leaving Bangladesh and the level of detail he has provided at each stage, despite many years in detention, I do not share the delegate’s view that the applicant was evasive or that he was lacking in credibility. In fact, I consider that the fact of his consistency and capacity to furnish details readily when asked must be given some weight, even if he has embellished some of his claims or other claims may not be established.
The country information clearly demonstrates that politics are a matter of personal identity and honour in Bangladesh. Similarly, the type of violence described by the applicant is consistent with that described throughout the country information.   I have accepted that the applicant was involved in politics in his local village and area and I also accept that he had an impact even after only a few short months, attracting swift and violent opposition. The country information suggests that compulsory ‘contributions’ are a fact of life in Bangladesh and that such extortion is a critical contributor to power structures. It seems plausible to me, in such an environment, that the applicant’s actions in bringing to an abrupt end the extortion of his BNP members in [Village 1] would trigger swift and decisive action against him, in the form of physical assault, threats, and threat of false allegations of criminality to silence him. The applicant claims that he would rejoin the BNP and again become involved in politics if he was to return to Bangladesh. I accept that evidence.
My conclusion on considering the whole of the applicant’s claims is that he has established that there is a real chance that, if he returns to [Village 1] or indeed to the region of his former home in Bangladesh, the applicant will face serious harm from local AL members with a long-standing grudge against him.    This grudge would be reinforced if, as he claims he would do, the applicant renews his membership and agitation on behalf of the BNP on return to Bangladesh. Based on the country information generally, (and taking into account the very recent news report of police officers demanding BNP members ‘surrender’ and face the consequences of opposing the ruling party,) I am satisfied that it is indeed plausible that local police might be enlisted to harass and arrest the applicant on charges of opposing the government or on fake charges which are politically motivated, if he were to return to [Village 1] or the area surrounding it where he and his political history might be identified due to his previous profile.
The data breach
I have not accepted the applicant’s claim that local AL members in [Village 1] became aware of him being in Australia after the 2014 data breach. I have borne in mind the country information discussed above about the challenges to the availability of reliable internet and low levels of technological ‘penetration’, particularly in rural areas like [Village 1].   I consider that the chance of any potential persecutor becoming aware of the limited information involved in the data breach and using it against him is remote. I do not accept this claim.
Return to Bangladesh
The applicant claims that, on returning to Bangladesh, he will be identified as someone who left the country illegally and who has sought protection overseas. He claims that this will draw him to the attention of the authorities on return, causing them to investigate him and make enquiries about him in his home region. I have not accepted the applicant’s claims that he was falsely charged with an offence but later cleared. I do not accept that the applicant is a person ‘of interest’ to police due to any previous legal action or charges. Nonetheless, the country information does suggest that some enquiry about his circumstances is likely to be made on him returning to Bangladesh, given his lack of a passport and the manner of his being returned to Bangladesh. I consider that there is some chance that the applicant may come to the attention of government officials on his return and after a brief enquiry in his home region, will become known as a person who was a long time general member and later a low level official of the BNP and thus a person who was opposed to the ruling government of Bangladesh at the time he left the country.   Nonetheless, based on the country information about returnees, their large number and the size of Bangladesh (including large urban cities like Dhaka), I consider that there is not a real chance (in the sense that I consider it a very remote chance) that he will be persecuted on return to Bangladesh because he is a failed asylum seeker returnee, particularly given my rejection of his claim to have ever been charged with murder and also taking into account the passage of time since he was active in Bangladesh. He has been outside the country for two full election cycles and has therefore not been recently involved in any political activity in Bangladesh. I do not accept this claim.
The Refugee Criterion
The applicant fears being seriously assaulted or killed, or subjected to false, politically motivated criminal charges by members of the AL in Bangladesh if he returns to his home country.   He also fears the AL led government of Bangladesh and that he will be imprisoned, tortured or killed in custody due to his having left the country illegally and having claimed asylum due to his political preferences. I am satisfied that each of the harms he fears (being seriously assaulted, killed, imprisoned indefinitely or tortured in custody) constitute serious harm individually and cumulatively as required by s.5J(4)(b).
The essential and significant reason for the harm he fears is due to his political opinion as a BNP supporter and member and being opposed to the AL, its’ members and the Government of Bangladesh. Sections 5J(1)(a) and 5J(4)(a) are satisfied.
The attacks on the applicant were historically swift, repeated and targeted due to his political activity. I am satisfied that the persecution involves systematic and discriminatory conduct as required by s.5J(4)(c).
I have found that the applicant has a well-founded fear of serious harm from AL members if he was to return to [Village 1] or to the area surrounding his former home. There is a real chance of serious harm in his former home area where he can be readily identified by local AL members as a former BNP agitant and organiser, and where his persecutors have openly sought him and perpetrated acts of violence against his family in the period since he left the country. I am satisfied that in his home region, the applicant has a profile as a person opposed to the ruling members of local government and also as someone who will not willingly agree to paying the spoils of political combat and extortion to the ruling elite; and that there is a real chance that he will suffer serious harm if he returns there. Section 5J(1)(b) is satisfied.
According to s.5J(1)(c), a well-founded fear of persecution must relate to all areas of the receiving country. I have therefore considered the applicant’s claims to fear persecution outside of his home area, throughout the country. I do not consider that his profile in his local area of [Village 1] would, of itself, be sufficient to immediately alert AL members in any new region to his past political involvement on return or of his opposition to the ruling government of Bangladesh.   However, I have accepted the applicant’s evidence that, wherever he was to return to and live in Bangladesh, he would again become involved in the BNP. On the basis that the applicant would become involved in party politics with the BNP on his return, I consider it is possible that his doing so may again draw him to the attention of local AL strongmen in any new area. I have noted the observation by DFAT and others that the current politically motivated violence in Bangladesh is more commonly of the intraparty kind (and particularly within the AL itself) as power brokers fight over the spoils of being the ruling government. Nonetheless, interparty violence is still commonplace due to the desire of the ruling party to oppress and avoid opposition in future. Particularly where such violence is perceived to have impunity due to the manipulation and control of the police and justice system by the AL itself, I consider that it is at least possible that the applicant will, in the foreseeable future, be targeted and seriously harmed because of his political affiliation throughout the country of Bangladesh.

Without more, however, and noting the large population of Bangladesh and the size of its’ urban areas, I would not be satisfied that the possibility of the applicant facing serious harm in the future in an area of Bangladesh outside of his home region due to his political affiliation would be more than a remote chance. However, I am satisfied that taking into account the cumulative effect of his personal history and the politically motivated animosity facing him in and around [Village 1], his intention to continue his political involvement with the BNP on return and his clearly expressed opposition to the ruling party in Bangladesh, that the chance that the applicant will be identified on return and perceived to be a person opposed to the Government of Bangladesh and, in particular, an active supporter of the BNP, is higher than a remote chance or possibility, even outside of [Village 1] and its’ surrounding area. I consider that if he is identified as a person of interest on return, his past residence area and past history will be readily ascertained, and he will again be vulnerable to being targeted for harassment, assault, politically motivated charges or even to imprisonment and prosecution due to his political history and ongoing opposition to the ruling party. I consider that cumulatively, the various aspects of the applicant’s claims combine to increase the chance of him being subjected to serious harm above that of a remote chance in all areas of Bangladesh now and for the foreseeable future. I consequently find that the applicant’s fear of persecution is well-founded throughout Bangladesh.
I have considered whether the applicant could modify his behaviour to avoid the real chance of persecution. I consider it unlikely that persons in the AL outside of his political region in [Village 1] would be aware of his historical conduct there or that the government or its’ agents would have an interest in him on return, if he denounced or even downplayed his alignment with the BNP. I consider that he could avoid persecution by joining an alternative political party or even desisting from political engagement. However, such a modification is expressly excluded by s.5J(3) of the Act and I consider requiring him to denounce his political opinion is not reasonable. Section 5J(3) does not apply in this case.
The applicant fears AL members but also the Bangladesh authorities who may be AL members themselves or controlled and influenced by them. I am satisfied that the country information suggests that AL supporters control police, justice and most official offices in Bangladesh, and that corruption and the utilisation of party links facilitates impunity of politically motivated violent actors. Similarly, the state authorities are used to implement and enforce party strength, such that political opponents can be subjected to politically motivated prosecutions and allegations without justification. I conclude that State protection is unavailable to the applicant, given that it is members of local and federal government politics, police and their supporters from whom he fears persecution. At their disposal his persecutors have a complicit (and reportedly corruptible) police force and justice system who would be unwilling or unable to provide him with effective protection. Effective protection measures as per s.5LA are therefore not available.
I conclude that the applicant is a person who has a well-founded fear of persecution and is a refugee as described in s.5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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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