1826651 (Refugee)

1826651 (Refugee) [2023] AATA 3384 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael McCrudden
CASE NUMBER:  1826651
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Catherine Carney-Orsborn
DATE:18 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 July 2023 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Court remittal – materials that can be considered on remittal – imputed political opinion – involvement with the Bangladeshi Nationalist Party (BNP) – attack from Awami League (AL) supporters – land dispute with uncle – false charges filed against brother – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZEPZ v MIMA (2006) 159 FCR 291
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 (the Department) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 1 July 2013. The delegate refused to grant the visa on 12 September 2014 on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 3 October 2014, the applicant applied to the Tribunal for a review of the refusal decision. A previous Tribunal held a hearing on 4 January 2016. On 22 March 2016, the previous Tribunal affirmed the refusal decision in Tribunal case 1416499.
On 11 April 2016, the applicant commenced judicial review proceedings against the Tribunal’s decision before the Federal Circuit Court of Australia in [case number]. [In] February 2017, the application for judicial review was dismissed.
On 15 March 2017, the applicant commenced proceeding against the Federal Circuit Court’s decision before the Federal Court of Australia in [case number]. On 17 August 2018, the Federal Court of Australia remitted the matter to the Tribunal for determination according to law. The Court found that the previous Tribunal fell into jurisdictional error in ignoring corroborative evidence by not engaging with it, the evidence being a purported video clip that the applicant tendered towards the end of the First Tribunal’s hearing. The Federal Court of Australia found that therefore, the First Tribunal did not fulfill its review function according to law.
The matter is now before the present Tribunal pursuant to that order of the Court.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.
In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.
RELEVANT LAW
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
The Tribunal has before it the Department files and the previous and present Tribunal files.
The Department file contains copy of a letter from a Bangladeshi school headmaster dated 16 April 2013, copy of an undated handwritten doctor’s letter, copy of an English translation of a list of Bangladeshi Nationalist Student Party dated 20 October 2004, copy of the applicant’s Bangladeshi birth certificate, applicant’s legal representative written submissions from 2014, copy of an Irregular Maritime Arrival Entry Interview record dated 10 April 2013, application forms for a Protection visa dated 13 June 2013, applicant’s statement of claims dated 13 June 2013, applicant’s consent forms to seek personal information and to share and release information, copy of grant of Bridging visa to the applicant, copy of the Protection visa interview in CD form, and a copy of the delegate’s record.
The previous Tribunal file contains copy of the application form for review of refusal of Protection visa, copy of the delegate’s decision record, copy of NSW photo ID card for the applicant, copy of online article on Bangladeshi political elections dated 7 July 2013, copy of the National Election Result 2008 page for [District 1] dated 27 January 2011, copy of Tribunal’s decision to release information to the applicant in full dated 21 November 2017, copy of Federal Circuit Court judgment dated ]in] February 2017, copy of Federal Court of Australia orders and judgment dated [in] August 2018, and a copy of filing of proceedings at the Federal Circuit Court of Australia dated 7 April 2016.
The present Tribunal file contains acknowledgement of Court remittal to the applicant and various request for Medicare letters from the applicant.
Applicant’s background
The following was provided by the applicant in the application form for a Protection visa with the Department. The applicant is from the Chittagong province. He is a fluent reader, speaker and writer of the Bengali language. He identifies as Muslim. His parents and siblings reside in Bangladesh. He attended primary and secondary school. He declared that he resided in [Country 1], [Country 2] and [Country 3] as an asylum seeker before coming to Australia. He first arrived in Australia as an unauthorised maritime entrant [in] March 2013. He declared he was unemployed at the time of application. He declared that his employer in Bangladesh was the Bangladeshi Nationalist Party (‘BNP’) where he was involved in sports and politics as a [Occupation 1] from 2004 to 2012.
Applicant’s claims
The applicant claimed to the Department that he feared returning to Bangladesh because he may be seriously harmed by the Awami League (‘AL’) because of his political activities with the BNP. And, that he may be face risk or harm from his uncle because of a land dispute.
The applicant claimed in a statutory declaration to the Department dated 13 June 2013 that he was a [sports] player during his school years. His family were BNP supporters and that he was a BNP supporter because the BNP supported a terrorist-free country and sought to build a self-reliant country with focus on employment.
The applicant claimed that he worked as a [Occupation 1] for the local BNP student branch organising sports games in local tournaments. That he attended BNP meetings and demonstrations. That the meetings focused on harnessing votes and to discuss the party role and projects.
In late 2011, the applicant was harassed by AL members. He claimed they had sticks and abused him verbally. The applicant claimed he was able to run away from them.
On 15 January 2012, the applicant was beaten by about 10 to 12 AL supporters. The applicant claimed that this took place near a playground in [Upazila 1] and that it was in the evening. The applicant claimed that he could not see his attackers, but he believed they were AL members because they abused him verbally and warned him to stop being involved in the BNP activities. The applicant claimed he was beaten with hockey sticks and long knives until unconscious.
The applicant was taken to hospital where he recovered from cuts and injuries to his head, chest, legs and fingers. The applicant stated that he had a long scar on his chest from the attack. He was discharged [in] February 2012. He claimed he provided the Department with copy of the hospital report.
The applicant stated that after the attack he was hiding at his sister’s home, which is located a couple of hours away from his family home where he used to reside. The applicant claimed that AL supporters attended his family home during his absence searching for him and saying that they would kill the applicant.
The applicant further claimed that his uncle [Mr A] was disputing a plot of land next to his family home in [Upazila 1] in March 2012. That he had threatened the applicant’s father, and that [Mr A] seized the land. The applicant claimed that his uncle filed a court case relating to the plot of land.
The applicant stated that he travelled to [Country 1] in June 2012 where he stayed for three days. He then moved to [Country 2] where he stayed for about eight months before travelling to [Country 3] from where he departed for Australia.
The applicant claimed that once he arrived in Australia, his mother told him that the AL had filed a false case against the applicant’s younger brother [Mr B]. The applicant claimed he believed this happened because the AL wanted to retaliate because of the applicant’s and the applicant’s father’s involvement in the BNP.
The Protection visa interview
The applicant attended an interview with an officer of the Department on 20 August 2014. The applicant’s claims for protection were discussed with the Delegate as set out in the delegate’s decision which was provided by the applicant to the Tribunal. The applicant claimed he feared retaliation from the AL because of his involvement with the BNP and from his uncle relating to a land dispute. The delegate discussed with the applicant the evidence he provided the Department with and put to the applicant country information related to the situation in Bangladesh at the time of the interview.
Applicant’s involvement with the BNP
The delegate discussed with the applicant the nature of the applicant’s role with the BNP. The applicant stated that he organised different sports matches as part of tournaments. He said that he was selected for that role by senior members of the local BNP committee because he was a skilful [sports player] and supporter of the BNP. That he became a BNP supporter when he was a student and that all his family members were BNP supporters. That he would watch TV news and became BNP supporter. That he joined the BNP in 2004. He said that his role involved no daily activities but occasionally or seasonally he used to organise teams for 15 clubs in [Sport 1] or [Sport 2] games.
The applicant said that he used to play [Sports 1] at home as his occupation. That he played in his local team in his local [area]. The applicant confirmed that the club was associated to the sports club and not affiliated to a political party. That he started playing [Sports 1] when the local people organised this club. That he did not remember what year he started playing [Sports 1], but said he was around [age range] years old. The applicant said he stopped playing [Sports 1] for his local club in 2012 when he was attacked by the opposition party. The applicant said that he played at a local level, Division 2.
The delegate asked about the applicant’s participation in the BNP meetings. The applicant said that whenever there was a meeting, he had to support them and work at them. The applicant said that he would support the party by joining protests and advocating for the BNP policies for people to join the party. When asked exactly how many meetings he attended, the applicant responded that he thought he attended many, all the meetings, that he did not count the meetings he attended. That whenever there was a match or tournament, he could not attend the BNP meetings. The applicant stated that the last meeting he attended was in May 2011.
The applicant was asked to provide details of the discussions held during the BNP meetings he claimed he attended. The applicant provided general information about the BNP. When pressed for details, the applicant answered that regarding the caretaker government, the BNP did not believe fair elections would be possible under the caretaker government. That the caretaker government was not elected by people and that they would organise their own elections. The BNP wanted people to have the ability to elect people they wanted. That the issue in 2011 was that the caretaker government passed a bill in Parliament that no elections would be held while caretaker was in power, converse to the past ability of holding free elections; that if anyone wanted to participate in elections, they would have to do it under the caretaker government.

The applicant stated that his family were supporters but held no leadership roles in the BNP or other political party in Bangladesh. The applicant stated that his father failed to enrol him on time to become eligible to vote and did not hold a voting card, and that therefore, the applicant did not vote in the 2008 Bangladeshi elections.
Attack from AL supporters
The delegate asked the applicant about the claimed attack the applicant suffered. The applicant said that in mid-January 2012 he was working next to the playground and some 10 to 12 AL supporters approached him and attacked him with hockey sticks and knives. The applicant was unconscious, he did not know who took him to hospital where he woke up the following day. The applicant said that the attack was at night and could not see their faces, but he could tell they were AL supporters because he was a BNP supporter, and because BNP supporters normally are attacked by AL supporters. That the AL supporters said words to the effect to him “..if you continue supporting BNP we’ll kill you..”. That they used profanity. That this attack happened at sunset time. That he was hospitalised [in] January 2012. The delegate asked the applicant what he was doing at the playground, the applicant said that he was coming from the local shopping centre when he was attacked.
The applicant was asked what happened after he was released from hospital. The applicant said that he was hospitalised for a month and had wounds in his body. When he was discharged, he still had some bandages. He said that his father was scared for the applicant’s life so he was not allowed to leave the house. The family started listening to the AL claims that they would harm or kill the applicant. The applicant claimed that he later went to his sister’s house.
The delegate asked about what injuries the applicant sustained during the attack. The delegate saw the wounds that the applicant physically showed at the interview: wound to his leg and to his chest caused by a hockey stick. The applicant said that after he went to his parents’ house the AL people continued to threaten him. That his father heard from neighbours that the AL said they would kill the applicant. After this the applicant confirmed he went to his sister’s.
Land dispute with uncle
The applicant and the delegate discussed the claim that the applicant had a dispute with his uncle. The applicant claimed that there was a dispute between the applicant’s father and the applicant’s uncle about the land next to his father’s house. That people his uncle hired beat the applicant’s father and that his father had had a heart attack. That the applicant heard of the events while he was hiding at his sister’s. That this was around March 2012.
The delegate asked what had happened since then given that the applicant had previously said that his father was still living at the family home. The applicant stated that one morning his uncle took possession of the land which the applicant’s father claimed as his. After that the applicant’s uncle started saying that he would kill the applicant’s father and the applicant if they claimed the land as theirs. The delegate put to the applicant that his family and father were still living at the family home. The applicant said that his father was recovering after being hospitalised for his heart attack and was under medical treatment. The applicant said that the plot of land was still occupied by his uncle.
The delegate asked why the applicant left his sister’s place. The applicant said that he could not go out or elsewhere otherwise he would have been attacked so he went to live with his sister. The delegate again asked why he could not stay at his sister’s. The applicant responded that he did not feel safe at his sister’s because his uncle knew where his sister lived and could attack him.
The delegate put to the applicant that his uncle would harm the applicant’s father rather than the applicant. That the applicant had other brothers and seemed strange that the uncle would target the applicant. The applicant said that his father was not demanding the land otherwise the uncle would attack him.
Applicant’s younger brother
The delegate asked the applicant if something had happened to his younger brother [Mr B]. The applicant responded that a false case was filed against him, that he had been absconding. The applicant responded that he did not know where his younger brother was living. The delegate put to the applicant that earlier in the interview he, the applicant, had said that his brother was living with his parents. The applicant responded that his younger brother was now at home but not at all safe; that he had to leave home when someone came to the house.
Evidence to the Department
The delegate discussed the evidence provided to the Department by the applicant. The applicant stated that he had obtained the handwritten letter (hospital report) on the injuries he sustained from the AL attack from the hospital, after he was discharged. The applicant stated that he did not know why the doctor had not particularised an injury to the chest in the letter and that doctors sometimes wrote their letters in English. That he did not read the letter when the doctor produced it.
The delegate discussed with the applicant how he obtained a copy of the student list, a list of Bangladeshi Nationalist Student Party. The applicant stated that he received it by email which was sent to him by his younger brother in Bangladesh. The applicant said he rang his younger brother in Bangladesh to send these documents to him. The applicant said that this document is used in Bangladesh to show the committee members.
Country information
The delegate put to the applicant that at time of interview there were reports that a BNP leader had won the seat in the applicant’s area and that now the applicant could be offered protection. The applicant said that the elected BNP mayor was powerful, but he was politically elected but not by the people. When seeking clarification whether he was elected by the people or not, the applicant responded that all mayors were elected by people, but these mayors were not backed by a political party but independent. Those who were politically elected were backed by a political party.
The First Tribunal proceedings
The applicant appeared before the First Tribunal on 4 January 2016.
At hearing, the applicant changed his claims of family involvement in the BNP (conversely to his statutory declaration lodged together with his Protection visa application). At hearing the applicant said that [Mr C] was not his uncle but rather his father’s cousin’s cousin and that the applicant did not know what position within the BNP [Mr C] held. Put to him, the applicant said that all he knew was that [Mr C] was a wealthy person, he was involved in politics, and he roamed around with other high political leaders like Chief Chairpersons and Secretaries in the local area.
The applicant at hearing, conversely to what he had stated in a statutory declaration submitted with his Protection visa application, said that his claimed cousin [Mr D] was his cousin on his father’s side but did not know much about his whereabouts or occupations. That the applicant was in contact with his family once or twice a month and did not know much about the events or what ordinarily happened in his village in Bangladesh.
The applicant at hearing, conversely to what he had stated in statutory declaration submitted with his Protection visa application, said that his claimed uncle [Mr A] was his father’s older brother, a wealthy and influential person in the village and that he roamed around with all the high political leaders in the area. That the claimed land dispute happened in 2012. Asked about why his uncle, [Mr A], would want to claim family land, the applicant said that because he was wealthy. That his uncle had this opportunity and because he, the applicant himself, had not been at home and he had been the oldest son. That his uncle had an eye on this land. He said that where his family lived was adjacent to the market, so this plot of land was near the market, and this was why it was valuable.
The applicant discussed with the First Tribunal the evidence that people paid by [Mr A] had seized the land by force. The applicant said that [Mr A] hired people to put a bamboo fence around the land and that they had built a temporary house on the land. Put to the applicant that this would only be possible if nobody else claimed the land or lived in it, the applicant said that in Bangladesh when someone wanted to invade a plot of land, they would build a temporary structure on the land and this meant that the land was in their possession; that his uncle was powerful and influential so he could do this.
The First Tribunal also discussed with the applicant the evidence that his uncle [Mr A] had also filed a case in court to claim the land. When asked why his uncle would want to or have done this, the applicant said that his uncle wanted to document everything and to say that no one in the family had authority over the land. That his uncle first invaded their land and then went to court. The First Tribunal put to the applicant that this claimed land dispute started in 2012 and the hearing was taking place in 2016, that the case might have well been over in all these years despite his uncle being a BNP member when the AL was in power. The applicant agreed.
At hearing, the applicant confirmed he performed as the [Position 1] of the Chhatra Dal since 2004 (when he was in Year [level] and of [age] years of age) for the BNP. That he organised seasonal [Sports 1] or [Sports 3] games. That the applicant became the best [Sport 1 player] in the local area and a supporter of the BNP. The applicant claimed these were the reasons the BNP’s committee’s senior members selected him as the [Position 1] of the club. That the applicant did not know why he had been given the title of '[Occupation 1]' which he referred to in this statutory declaration. When queried at hearing, the applicant said he had not spoken of the title ‘[Occupation 1]’ then.
At hearing the applicant said that the first time he had problems as a result of being involved with the BNP was in 2011 even though the AL had been in power in Bangladesh since 2008. When put to him how he could keep a low profile as a professional [sports player] with involvement with the BNP, the applicant said that he just played in his local area for a club and did not mingle after games.
When asked why the applicant anticipated he may need a doctor’s letter in English, the applicant said that the doctor had prepared the handwritten letter he produced to the Department. That he did not know why the doctor did not state in the letter that he had suffered a stab wound to his chest. That the applicant did not know what the doctor had written, and that the applicant did not even think he would need a medical certificate. The applicant claimed that he had suffered a stab wound to the chest as a result of the attack on him by AL supporters.
The First Tribunal discussed with the applicant why he felt he had to leave Bangladesh if he had no problems living with his sister in [Upazila 2]. The applicant said that he lived a captive life fearing someone might go in and cause him harm. When asked why he would feel that way if the location was secret, the applicant replied that because he was a somewhat known figure and so news would have spread, and because his uncle [Mr A] knew of his sister’s address. When asked why his uncle would attempt to find him during the three months after hospital release considering the land dispute, the applicant asserted that his uncle would try to find him.
At hearing, the applicant said that his parents and his three younger brothers were all still living in his family home in Bangladesh. He said that his father was not working, and his family were living on his father's savings. He said that the oldest of his younger brothers, [Mr E], was working and at the same time was studying for a master’s degree. He said that his next oldest brother, [Mr B], was not working because a case had been lodged against him and he could not move around freely. Contrary to his earlier evidence he said that [Mr B] was not living at his family home.
At hearing the applicant confirmed he had lived in [Country 2] for 8-9 months and that he did not know how to apply for refugee status there and because he was staying there unlawfully. He claimed he did not want to claim asylum in [Country 2] because he wanted to forget all about Bangladeshi politics. That he had not been involved in BNP Australia. When asked if he would be involved in politics if he were to return to Bangladesh, he said that he would have to. When asked why, he said that his political party would force him to join.
Returning to the claim that the AL filed a case against the applicant’s younger brother [Mr B] at hearing, he said that his mother told him this. That he believed it was in retaliation for him, the applicant, being involved in the BNP. When put to him that the AL had been in power four years prior to his arriving in Australia March 2013 (when he found out about the alleged lawsuit), and that had the AL wanted to get him they would have done so earlier, the applicant said that the police can easily go get someone and then press charges, that the AL had repeatedly and previously tried to kill him and could not know if a lawsuit was filed against him. When put to the applicant that it was difficult to believe the AL would seek revenge through the applicant’s brother, the applicant said that there was a fight between some friends of his brother [Mr B], that his brother was not involved, but they got his name down in that case.
The present Tribunal’s proceedings
Evidence submitted to the Tribunal
On 30 May 2023, the applicant’s representative made submissions to the Tribunal. These consisted of the applicant’s statutory declaration and country information. The country reports submitted seek to support the claims that the applicant will face if returned to Bangladesh because of his political opinion and over a land dispute. The Country Information was of a general nature.
In a statutory declaration dated 29 May 2023, the applicant stated that his family being his mother, sister and three brothers are not currently involved in the BNP. That his father and brother [Mr B] used to be BNP supporters but not to the extent the applicant is.
Regarding his early political involvement with the BNP, the applicant stated that he commenced his political involvement with the BNP in or about 2003 when he would participate in sports events and meetings organised by the BNP. That in or about 2004 he was appointed as the [Position 1] until about 2012. In this capacity, he organised sports and cultural events such as Mother Language Day on February 21. The last event the applicant organised was a [Sports 1] match to close the commemoration of Victory Day on 16 December 2011.
The applicant clarified in his statement that he participated in small local protests against the undemocratic caretaker government. That he did not vote in the 2008 elections because he was not registered to vote; that he was an unregistered voter because he was one of those victims of the unperfect manual process.
Regarding the harm he commenced experiencing in Bangladesh, the applicant stated that between 2004 and 2011 he was harassed because of his affiliation with the BNP. The applicant contends that he did not suffer major or greater harm during this period because the political violence had not yet reached higher levels. The applicant claimed that in 2011 he was harassed; however. he did not report this incident to the police as he did not think he would get action from the police, and they were affiliated with the opposing political party.
During 2011 and despite the harassment, the applicant continued to participate in various demonstrations against the initiative of the government to detain and harass people voicing opposition.
On 15 January 2012, the applicant was beaten by men who warned him to stop his involvement with the BNP. He was taken to hospital. He refers to the medical certificate he provided to the Department previously where there is no mention of his chest wound. He does not know why the certificate did not mention his chest wound but he states that the certificate does mention having suffered head trauma and stab wounds, that the fact he was hospitalised for one month shows he was seriously wounded.
Regarding his involvement with politics while in Australia, the applicant states he has been involved with the BNP Australia since 2015 and that he did not want to make this known to the Australian government because he was afraid, he would be perceived as part of political violence and would diminish his chances of being successful in his visa application.
The applicant states that his motivation to continue his involvement with the BNP Australia is to see Bangladesh return to democracy. That he has participated in protests against the visit of Sheikh Hasina to Australia; Solidarity Revolution and Peace Day celebrations; calling for the release of Begum Khaleda Zia in Canberra in early 2023.
Regarding his brother [Mr B]’s case, the applicant states that he is unaware of the case progress. That considerable time has passed since false charges were brought against his brother and the applicant would not be surprised if nothing has developed since. However, the applicant reiterates those false charges were filed against his brother as retaliation for the applicant’s involvement in politics.
Regarding the land dispute with his uncle, the applicant states that [Mr A], his uncle, with whom he had the dispute over his family land passed away a couple of years ago, before the Covid19 pandemic. However, the applicant claims that his uncle’s son and family continue to control the land in dispute. That the applicant’s cousin, uncle’s son, [Mr D] is involved in the BNP and can influence and action harm over the applicant’s family. The applicant claims he wishes to seek registration of his family land on his name and fight his cousin [Mr D]. That the court case his uncle filed is ongoing and can take more years for resolution via that channel.
Regarding his fears to return to Bangladesh, the applicant claims that he wished to have nothing to do with politics at the time he left Bangladesh, but he now finds himself still involved in BNP to take some form of action against the current and deteriorating situation in Bangladesh. That in addition to his continued involvement in politics he has expressed his views on social media as well as attended various protests against the AL. Therefore, he thinks he would be targeted because of his profile. And that police would not protect him anywhere in Bangladesh.
The applicant adds that he fears harm at the hands of his cousin [Mr D] regarding the land dispute. He states that even though no harm has been suffered by his family he believes this is because they are passive in relation to claiming back the land whereas he is not and maintains firm intentions to claim it back if return to Bangladesh.
The applicant’s submissions in his statutory declaration were supported by the following material:
a.Letter from the BNP Australia dated [in] April 2023. [Mr F], [an official] of the BNP Central Executive Committee states in the letter that the applicant is an executive member of BNP Australia with the goal of fostering the Bengali culture within the community of Bengali native speakers in Australia. That the applicant has been politically active since [January] 2015 participating in protests against the curtailment of freedom of political opinion in Bangladesh. [Mr F] states that the applicant acted as [Position 1] of the BNP Student wing in [Upazila 1] Municipality; that the applicant continues to be involved in discussions and organising of protests in Sydney and Canberra in either February or March 2023 to call on the restoration of democracy in Bangladesh. The letter lists the following activities where the applicant has actively participated in Australia:
i.Protest in Sydney against the visit of the Prime Minister Sheikh Hasina during her Sydney visit on 27 April 2018;
ii.Celebrations for the Founding Anniversary of the BNP on 8 September 2019 and 8 September 2022;
iii.Solidarity Revolution and Peace Day Celebration on 7 November 2018, 2019, and 2022;
iv.Rally and protests against illegal elections in Bangladesh on 5 January 2018; and
v.Protest for the release of former Prime Minster Begum Khaleda Zia on 1 June 2019 and 1 April 2023.
b.Applicant’s BNP Australia membership application dated [in] January 2015.
c.Photographs of the applicant attending BNP meetings - undated
d.Photograph of protest in Darling Harbour - Examples of placards displayed – undated

In support of the submissions and regarding the political opinion claims, the representative on behalf of the applicant cites the following country information relating to political violence in Bangladesh:
a.Political Violence in Bangladesh, Hoque, A - December 2014.
b.The Anatomy of Violence in Bangladesh - ACLED - 9 November 2018.
c.Bangladesh: UN human rights experts alarmed by violence ahead of election - OHCR 20 December 2018.
d.Bangladesh: Violent Repression of Opposition - Human Rights Watch – 17 January 2019.
e.Attacks on BNP Protests Unconstitutional - The Business Standard – 1 September 2022.
f.DFAT Country Information Report on Bangladesh - 30 November 2022.
g.Bangladesh: Crackdown on Political Opposition - Human Rights Watch – 10 October 2022.
h.Bangladesh’s Brutal Crackdown on Political Opposition - Human Rights Watch - 9 December 2022.
i.White House calls on Bangladesh to investigate reports of pre-election violence - Reuters - 10 December 2022.
j.2022 Country Reports on Human Rights Practices: Bangladesh - United States Department of State - Published 2023.
k.Bangladesh’s BNP fights to make a political comeback - Himal Southasian – 2 February 2023.
l.European Union ‘concerned’ about political violence in Bangladesh – BDN News - 13 February 2023.
m.What does AL gain from unleashing violence on BNP- The Daily Star -undated.
In support of the land dispute claim, the representative on behalf of the applicant cites the following country information about the Bangladeshi situation:
a.Property Disputes - U.S. Embassy in Bangladesh – Undated.
b.Land Rights, Land Disputes and Land Administration in Bangladesh — A Critical Study - Islam, S & Ors - 23 September 2015.
c.The uncomfortable truth about land disputes in Bangladesh Insights from a household survey - Rahman, A & Anor - June 2020.
d.Land grabbing, prevention and recovery in Bangladesh - Land Portal – 26 November 2021.
e.BNP leader killed over land dispute - The Daily Star - Undated
Tribunal hearing
The applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the current review.
The Tribunal explained that the matter had been remitted to the Tribunal to be dealt with. The Tribunal explained that it had the information and evidence before it which was provided by the applicant to the previously constituted Tribunal and the Department.
A summary of the oral evidence is as follows.
The applicant confirmed that he has family in Bangladesh. His mother and two brothers are still living in the same area they have always lived in. His sister is in Bangladesh with her in-laws. He stated that he has one brother living abroad. He has no family in Australia.
The applicant stated that he is currently working on construction sites in Australia.
The Tribunal explained why the matter was again before a differently constituted Tribunal and requested the usb stick on which there was information the applicant had wanted the previous Tribunal to consider which had not been considered.
The applicant and representative stated that the usb stick had been provided to the Federal Court. The representative undertook to provide the usb stick and any relevant further submissions to the Tribunal.
The Tribunal invited the applicant to state why he cannot return to Bangladesh. He responded in a general way that Bangladesh was unsafe and anyone who speaks out against the current government could disappear. He stated that it is not a democratic country and there is no freedom of speech or fair elections.
The Tribunal asked the applicant to be specific how this relates to him. He stated words to the effect that practising politics is in his blood. He stated he was involved in the BNP party in Bangladesh.
He stated that he was a [Position 1] in his municipality in Bangladesh. He stated that he was a [Position 1] of student wing from 2004 till he left Bangladesh in 2012.
The Tribunal queried why he would continue to be on a student committee after he had stopped being a student. He gave a vague response that there was no new committee, so he stayed with the old committee. He confirmed it was just in his local area and he only had a minor role.

100. The applicant then discussed his claim that he was attacked by Awami League supporters in 2012. He stated that the attack happened in 2012, it involved 10-12 people and he felt his life was at risk, so he left the country. The Tribunal asked how he knew they were Awami League supporters. He responded that he had been threatened by them before the attack.
101. The Tribunal reminded the applicant that he had said he lived with his sister for a month before he left Bangladesh. He said that was correct, he lived with his sister for a month.
102. The Tribunal then discussed with the applicant the medical certificate he provided to the Department. The Tribunal noted that it was undated and did not list the most serious injury he claims of being stabbed in the chest. He responded that this was the report that was provided to him by the doctor when he left hospital.
103. The applicant further clarified that he asked his brother for the report when he was in Australia and had filed an application for a Protection visa. He stated that his brother had the report in Bangladesh and had provided it to the applicant in Australia. The Tribunal asked why it was so vague. He responded that with words to the effect that he did not know and that things were different in Bangladesh and not like Australia.
104. The Tribunal then asked the applicant to clarify his family’s involvement with the BNP. He responded with words to the effect that they were supporters of BNP politics but were not actively involved. The Tribunal asked the applicant to clarify why he had changed his evidence in relation to his family being involved in BNP politics. He responded with words to the effect that he had said they were supporters, however, were not actively involved or high profile. They did not hold any position or posts in the party.
105. The Tribunal then discussed relocation with the applicant as he had stated that he was only active in his local municipality. He responded generally that relocation is not possible if you are a supporter of either party as they will find you. He further stated words to the effect that there is a land dispute with his uncle/cousin and his uncle/cousin would know about him. He clarified that his uncle was now deceased; however, the applicant’s cousin, uncle’s son continues to claim the land.
106. He stated that the land was on his family’s land and his uncle took possession of it. The Tribunal asked if his family has sought any redress through the legal system. He responded that his family would not take it to court as it would not be safe. He stated that his uncle has wealth and power and was influential in the BNP. He stated that because his uncle is wealthy, he and his family can make a liaison with the Awami League. The Tribunal discussed with the applicant that it appeared the land dispute happened over ten years ago and whether there has been any outcome.
107. The applicant responded that he did not know. The Tribunal queried whether his brother in Bangladesh has followed up the case and has any knowledge.
108. He responded that his brother is not involved due to the risk. The Tribunal asked the applicant to clarify that his mother and brothers are still living next door to the land in dispute. The Tribunal stated words to the effect that it appeared they are living and working in Bangladesh and not suffering any harm. He responded that as he is the oldest son and takes all responsibility, his younger brother has nothing to do with it. He stated that since his father passed, he has all the responsibility.
109. He stated that his brother [Mr B] is out of the country. The Tribunal asked if this was the same [Mr B] who he claims has had a false case brought against him. The applicant stated that he was. He stated that he was working in [Country 4]. The Tribunal queried the status of any false case. The Tribunal queried how [Mr B] could leave the country if there were charges against him.
110. The applicant asserted that it was possible in Bangladesh. The Tribunal queried that he was saying he left on his own passport. The applicant stated that his was correct.
111. The Tribunal asked the applicant to clarify that he had a minor role in Bangladesh and that his family were not involved in politics in Bangladesh. He confirmed that was correct and referred to the land dispute.
112. The Tribunal asked why the Awami League supporters would attack him for supporting the BNP in 2012 when they had been in power since 2008. He responded that at first things were ok but when the caretaker government was removed trouble started.
113. The Tribunal stated that it was previously of concern that he had not voted in the 2008 elections. He agrees he did not participate in the vote.
114. The Tribunal asked if he had anything further to add. He stated that the Awami government is governing the country and things are not good, he stated there is no freedom and people disappear.
115. The Tribunal asked the applicant to discuss what the BNP stands for. He responded with a general remark that they stand for democracy and the betterment of the country.
116. The Tribunal queried whether they held liberal modern beliefs. He responded they did. The Tribunal then discussed with the applicant that they were aligned to Islamic parties and were very conservative. He stated that they were aligned with Islamic parties.
117. The Tribunal then discussed with the applicant his claim that he was involved with the BNP in Australia. He stated that he attends meetings whenever he can, he stated he attended a protest rally in Canberra against the Prime Minister of Bangladesh.
118. The Tribunal put to the applicant that it appeared he only started his involvement with the BNP in Australia after the Department declined to grant him a Protection visa.
119. He stated that he is a supporter of the BNP; however, when he came to Australia, he was a new person, and he did not have enough information.
120. The applicant provided a copy of a membership certificate to the Tribunal. The certificate was dated January 2015. The applicant stated that the particulars in the certificate were correct. The Tribunal then put to the applicant that the membership certificate he provided had an incorrect address for him on it. The Tribunal stated that in January 2015 he was not living at that address as that was not the address provided to the Tribunal in January 2015. A change of address notification with the address on the membership was provided to the Tribunal in December 2015. The applicant responded that when he was living at that address, he did not receive the membership card and when he moved, he had the new address.
121. The membership certificate is dated January 2015 at that time he was living at a different address.
122. The Tribunal asked if there was anything further he wanted to discuss he said he didn’t have anything to add.
123. The Tribunal said that in his submissions he stated he had posted things on social media and asked for details.
124. He stated that he posted on Facebook. The Tribunal asked when he did that, he responded that he could not remember.
125. The Tribunal then explained that it could disregard any activities in Australia if it formed the view that he had undertaken those activities in order to strengthen his claims for protection.
126. The Tribunal further stated that as had been previously discussed with the applicant, there is county information which states that false documents can be easily procured in Bangladesh and are difficult to verify.
127. The applicant had an adjournment with his representative to discuss some the issues.
128. The representative then discussed country information which had been provided to the Tribunal, the medical certificate being a contemporaneous record, and clarified the applicant’s brother had sent it to the applicant in Australia. He stated that the applicant’s family are supporters of BNP but not of high profile. In relation to the land grab, the representative stated that judicial proceedings can drag out in Bangladesh. The representative discussed the information about the applicant’s brother leaving Bangladesh on his own passport, that people who are prepared to be involved in protests face risk of being harmed and harm will increase with elections, and relocation. He pointed out that if the applicant returns to Bangladesh, he will do as he has stated, he will assert his claim to the land and could be harmed by his uncle who has influence.
129. The representative indicated he would provide further evidence including the evidence not considered by the first differently constituted Tribunal with two weeks.
130. No further information or submissions were provided to the Tribunal.
CONSIDERATION OF EVIDENCE AND FINDINGS
Assessment of claims
131. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
132. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:
The Tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.

133. Ultimately, after considering all the evidence, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached this conclusion are set out in detail below.
Land seizure
134. The applicant claims he will be at risk of harm if returned to Bangladesh due to his uncle seizing a plot of land which belongs to his family. He claims that his uncle paid people to go onto the land and beat his father and threatened to kill his father and him. He claims these people said that the land belonged to his uncle. He claims his uncle is a powerful member of the BNP. He claims his uncle filed a court case to claim the land in 2012.
135. The applicant claims that if he returns to Bangladesh, he will have to try to reclaim the plot of land and he will be killed. His evidence is that his uncle is now deceased, however, he will be at risk from his cousin who has taken over from his father. General Country information in relation to land grabs in Bangladesh has been provided to the Tribunal.
136. In relation to any land grab, the uncle with the influential position within the BNP is dead. There is no clear evidence, other than the applicant’s own assertions, that his cousin has any influence over the systems which they claim are controlled by Awami League supporters.
137. It has been over ten years since he claims the land was seized. Since that time, his father, prior to his death, mother and his two brothers have lived in the same property next door to the land that is the subject of a family dispute. No independent evidence in relation to the applicant’s claimed land grab by his uncle was presented to the Tribunal. The Tribunal asked the applicant about the progress of the legal case, he stated his uncle lodged it in early 2012 to legitimise his claim to the land.
138. The applicant stated that nothing has happened. He stated that he did not know of any outcome. The applicant was queried about any court process, call-overs or directions. He responded that he does not know. This despite his claim that he keeps in contact with his family in Bangladesh.
139. The Tribunal accepts that the legal process in Bangladesh can be cumbersome and delayed; however, the Tribunal does not accept that the applicant does not know what stage the legal process is at. He claims his uncle lodged an application to claim the land, however, his uncle is now deceased. He was unable to provide any information in regard whether the court case is lapsed or proceeding. This was despite him having two brothers, his mother, and until recently, his father involved and living next door to the land.
140. When queried, he simply said as he was the oldest son, he would have to pursue any claim. He earlier claimed his uncle would kill him, he did not go into any detail as to how this would happen other than to say his uncle was wealthy and influential. There is nothing before the Tribunal to indicate his uncle’s son is also influential and could cause serious harm to the applicant.
141. The Tribunal accepts that there are systemic issues in the Bangladeshi court systems and corruption; however, over a ten-year period there would have been some intermediate court hearings or listings. Information from DFAT indicates that there is a court system and cases are dealt with. Any delays are systemic and suffered by the population of Bangladesh as a whole. There is nothing to indicate that the uncle’s family, who the applicant claims are wealthy supporters of the BNP are able to influence judicial proceedings to the detriment of the applicant. Further, there is no evidence other than the applicant’s own assertions as to why the uncle would start proceedings when he had already taken the land and built a fence and structure on it. The Tribunal does not accept that the applicant was unable to provide any information or documents in relation to the claimed court action other than his own assertions.
142. The Tribunal does not accept that the applicant will be persecuted as the oldest son if he returns to Bangladesh. His family have continued to live next door to the land plot for some years. There is no evidence they are relying on the land for their sustenance. If they were at risk of harm, the Tribunal considers that they would have suffered serious harm within those ten years since the land claim. His evidence is that his brother works. There is no evidence before the Tribunal in relation to whether the uncle and his family has a legitimate claim to the land.
143. The Tribunal considers that a dispute over land within a family does not amount to persecution for the purposes of the Refugees Convention. The Tribunal accepts that in certain circumstances a family dispute of land could come within the convention. However, the uncle is now deceased. The Tribunal has no other evidence other than the applicant’s own assertions that the uncle’s son will continue occupying the land. The Tribunal does not accept, on the information and evidence before it, that a dispute between family members which the applicant claims is before the Bangladeshi court is persecution for one or more of the five convention reasons.

Bangladesh National Party
144. The Tribunal has considered all the information and evidence before it. The Tribunal has concerns with the applicant’s evidence and credibility in relation to his claimed support of the BNP.
145. The applicant in his original application to the Department claimed that due to his being a professional [Sports 1] player in his local area he was seen as high profile in his local area and was targeted by Awami League supporters. His original claims stated that he had close relatives who were high-ranking members of the BNP including an uncle and cousin who were influential and wealthy. He went into some details about their roles to the delegate and previous Tribunal. He claimed his family were supporters of the BNP in the local area. He provided evidence that he was an official listed as a committee member in BNP publications provided to the Department, that he was a [Occupation 1], [Position 1] for many years and attended protests. He claims he was severely beaten, spent a month in hospital and his brother was the victim of revenge charges. All this was because of his involvement in the BNP in Bangladesh.
146. The above contrasts with his evidence to the present Tribunal that while in Bangladesh he was a minor supporter of the BNP party, his family were supporters but were not involved.
147. At hearing to the Tribunal, he stated that he only had a minor role. He stated that his family were supporters but not involved and he only became actively involved once he was in Australia. This is in direct contrast to earlier evidence he provided to the previous Tribunal and Department including letters claiming to be from officials within the BNP, where he was listed as an official of the local party.
148. The applicant earlier claimed that his brother [Mr B] had been targeted with a false case due to the applicant’s political involvement with the BNP. He had no information about how that case was proceeding. To the differently constituted Tribunal, he had stated that his brother [Mr B], was not working because a revenge case had been lodged against him and he could not move around freely.
149. His oral evidence to this Tribunal is that his brother [Mr B] was working in [Country 4]. When queried, he stated that he was able to leave on his own passport as this was allowed in Bangladesh. The applicant’s earlier evidence was that charges were still against his brother due to the applicant’s involvement in politics. The Tribunal does not accept this as Bangladesh does have systems in place as well as [Country 4] and if there were criminal charges pending, he would have had difficulty in leaving the country.[1]
[1] DFAT Country Information Report Bangladesh November 2022 [5.20]—[5.21] (‘DFAT Report Bangladesh 2022’).
150. The applicant claims that in Bangladesh his family live and work in the same area. He claims that his brother has a false claim lodged against him as retaliation for the applicant’s political profile. He claims that he was harassed and beaten, he claims this was because he was a supporter of the BNP in Bangladesh.
151. He claims he had to flee to his sister’s house and hide out there until he was able to leave Bangladesh. His evidence is that his role is at a local level.
152. However, when queried about relocation within Bangladesh he claims that this is not possible as he would be found by the Awami League everywhere he went. This is in contrast to his evidence that he fled to his sister’s house and lived there until he had to leave Bangladesh due to his uncle being able to find him at her home.
153. The applicant had previously claimed that he was threatened in 2011 and beaten in January 2012. He claimed it was dark and he could not see his attackers, however, they threatened him for being a supporter of the BNP. He could not give a credible explanation of what brought about this attack in 2012 given his evidence is that he had been a supporter since school and involved in the BNP since 2007. He could not provide any plausible explanation of what prompted this attack since the Awami League had been in power since 2008. When queried, he stated that things only became difficult after the caretaker government left. This contrasts with his first statement stating the caretaker government were the issue.
154. The applicant provided a written letter he claims is from a doctor in Bangladesh. He claims this was sent to him by his brother when he first lodged a claim for protection. The previous Tribunal discussed this letter with him. He could not explain in a persuasive way why it was written in English and was undated and did not list the injuries he claims including being stabbed in the chest. The applicant in his interview with the delegate, as outlined in the delegate’s decision, stated that his wounds were caused by sticks and knives. After considering the evidence before it the Tribunal is not satisfied that any injuries or scars the applicant may have on his body were the result of an attack due to his being a supporter or worker for the BNP in Bangladesh.
155. The applicant had been queried by the previous Tribunal and Delegate in relation to why he did not vote in the 2008 election. At first, he stated he was too young, when it was put to him that this was not the case, he changed his evidence to state that his father did not register him and then to this Tribunal he claimed that he was a victim of an imperfect manual system.
156. The Tribunal after considering the evidence provided by the applicant to the Tribunal and Department has formed the view that he is not a witness of credit in relation to his fear of being persecuted for being a member of the BNP. His evidence to the Tribunal and Department has numerous inconsistencies and at times is confusing and implausible. The present Tribunal has only outlined some of the issues as the previous Tribunal listed its concerns as did the Department.
157. On the evidence before it, the Tribunal does not accept that the applicant’s brother was the victim of false charges, or, that the applicant will be targeted on his return to Bangladesh due to any role he had or as a supporter of the BNP in Bangladesh.
158. The applicant claims that his family have always lived in the same area and continue to do so. The Tribunal does not accept that if the Awami League were so determined to cause him harm over ten years after he left Bangladesh, such as false charges against his brother, harassing his family, and stabbing the applicant, that his family would be able to continue to live in the same area as they have always lived in, continue to make a living, and travel overseas to work. He claims that as he is the older son, he is the responsible one and he is the only target. This contrasts with his claims that his brother is the subject of false charges. If this is the case and the Awami League continue their vendettas against him, the Tribunal does not accept that they would leave his family unmolested.
159. The Tribunal does not accept that the Awami League supporters would carry out such violent acts, threats, intimidate his family, and file a false claim against his family member if he had, as claimed, a minor involvement in the BNP in his local area.
160. When queried how his uncle and other family members could be high profile members of the BNP in Bangladesh and continue to hold influential positions and be wealthy, he could only respond that they would work with Awami League. No other explanation was provided. The Tribunal would expect that if the applicant had influential relatives who were safe from the Awami League due to their wealth and influence then they could provide some level of safety to their relatives.
161. Country information indicates that those with a minor role can be targeted, however, it is unlikely. The Tribunal, on the inconsistencies and evidence before it, does not accept that the applicant had any role which would bring him to the attention of the Awami League, authorities acting on their instructions, or any others. The Tribunal finds that the applicant’s claims to fear persecution for being a supporter of the BNP are not well founded and he is not at risk of serious harm.[2]
[2] DFAT Report Bangladesh 2022 above n 1 [3.82].
Involvement with BNP in Australia
162. The applicant changed his evidence from not being involved in the BNP in Australia to his being heavily involved. In his written response to his earlier evidence that he was not involved in BNP in Australia, he claims that this was because he was concerned that the Australian government would see him as political. The Tribunal does not accept this as a credible explanation as one of his claims for protection to the Australian authorities is anchored on his being persecuted due to his political activities with the BNP.
163. Previously, the applicant stated he was not involved with the BNP in Australia. He has now provided a statutory declaration that he is heavily involved, has attended meetings and protests. The Tribunal put to the applicant at hearing that it appears that this change only occurred after he had been unsuccessful in achieving his desired outcome for a Protection visa. He responded in a general way that he was passionate about the BNP and would be involved on his return to Bangladesh. This contrasts with his oral evidence to the Tribunal that he was only a minor supporter of the BNP in Bangladesh. The Tribunal has found above that it does not accept that the applicant was involved in the BNP in Bangladesh to an extent which would bring him to the adverse attention of Awami league supporters or agencies acting on their behalf. The Tribunal finds on the evidence before it and numerous inconsistencies as outlined above that the applicant if returned to Bangladesh would not continue any support for the BNP which would bring him to the adverse attention of the authorities. [3]
[3] This also contrast with his earlier evidence to the Department that he did not seek asylum in [Country 2] because he claimed he wanted to forget all about Bangladeshi politics.
164. The applicant provided a copy of a membership certificate to the Tribunal. The certificate was dated January 2015. The applicant stated that the particulars in the certificate were correct. As set out above, the membership document had the wrong address as recorded by the applicant in his correspondence to the Tribunal. The applicant gave a confusing response that this was because he did not receive it until he moved to his new address in December 2015.
165. The applicant provided photographs and letters of references from persons in Australia namely [Mr F], [an official] of the BNP Central Executive Committee. These are photocopies and could be easily manufactured. Given the evidence above and the Tribunal’s concerns about the applicant’s truthfulness, the Tribunal does not accept those documents are genuine. The Tribunal finds they have been manufactured to assist the applicant’s claims.
166. He claims that he has posted on social media. When queried about the social media posts he made a vague reference to Facebook. When the Tribunal asked for the date of these posts, he stated he could not remember. No evidence other than his own assertions have been provided about these posts. The Tribunal does not accept on the evidence before it that the applicant has posted anything on social media which would bring him to the adverse attention of the authorities who are controlled by the Awami League in Bangladesh.
167. The Tribunal is not satisfied on the evidence before it that if the applicant returns to Bangladesh, he would be involved in any activities which would bring him to the adverse attention of the Awami League or any officials controlled by the Awami League. The Tribunal finds that he is not at risk of any serious harm due to his being involved in protests or demonstrations in Australia.
168. The Tribunal, after considering all the relevant evidence set out above, finds that if the applicant has attended meetings in Australia with the local BNP branch it was for the sole purpose of strengthening his refugee claims.
169. The Tribunal does not accept that the applicant has a profile in Bangladesh as a BNP supporter in Australia that would result in him being targeted by Awami League supporters. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm for reasons of his real or imputed political opinion, being a supporter of the BNP, his membership of a particular social group, due to his family members being supporters of the BNP, a family dispute over land, or his actions in Australia in relation to the local BNP branch, now or in the reasonably foreseeable future.
CONCLUSION
170. The Tribunal considered all the information and evidence that it had been provided to this Tribunal and previous Tribunal including Country Information Documents and oral evidence. Ultimately, it comes to the conclusion that the applicant is not a witness of truth about his claimed experiences in Bangladesh. The Tribunal is satisfied that his backstory concerning his involvement with the BNP, his participation in politics in Bangladesh, the harm he experienced in Bangladesh, any harm claimed to have been experienced by his family members, his involvement in the criminal justice system in Bangladesh, his claimed reason for departing Bangladesh, and his claimed reason for not being willing to return to Bangladesh, are not claims that the Tribunal can give any weight to. The applicant fabricated them to achieve a favourable migration outcome.
171. Further, the Tribunal comes to the conclusion that any activity associated with the Australian branch of the BNP was not done as a genuine expression of his political belief, but to lend credibility to his protection claims. The Tribunal finds that any involvement with the Australian branch of the BNP was of a superficial nature and his involvement with the Australian branch of the BNP will cease when he returns to Bangladesh. He will not become political in Bangladesh because his involvement with the Australian branch of the BNP was not done for any reason other than lending credibility to his protection claim. There is no information to suggest that the applicant is of concern to the authorities in Bangladesh because of his involvement with the BNP in Australia.
172. The Tribunal is satisfied that the applicant came to Australia with no previous political involvement. He was able to depart Bangladesh because he was of no adverse interest to any person, group, or authority. He will be of no adverse interest to anyone in Bangladesh upon his return.
Refugee
173. For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group, or political opinion.
174. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
175. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicant meets the criteria under s 36(2)(aa).
176. As outlined above the Tribunal does not consider than any dispute over land between the applicant and his uncle’s family will result in his suffering significant harm. The applicant and his family have not had control of a plot of land next to where they live for 11 years. There was no evidence that his family who continue to live next door have suffered any significant harm. They continue to live there, work, travel and do not rely on that land for sustenance. As outlined above the Tribunal found any dispute was not for a convention reason and finds that if the applicant returns to Bangladesh, he will be able to continue to make a living, live with his family and will not suffer any significant harm as defined in s 36(2A): s 5(1).
177. For the same reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm. As the Tribunal has considered that any activity entered into by the applicant in Australia in relation to the BNP was of a superficial nature and not genuine, the Tribunal is not satisfied that the applicant is at real risk of suffering significant harm at the hands of the Awami League or the authorities in their control for any involvement with the BNP Australia under the Complementary Protection criteria.
178. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
179. There is no evidence that the applicant meets s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
180. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn

Member

[2023] AATA 3384

18 July 2023

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