1826690 (Refugee)

[2023] AATA 874

1826690 (Refugee) [2023] AATA 874 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBERS:  1826690 and 2100464

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Silva

DATE:17 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matters for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 17 February 2023 at 3:50pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party – membership and activities with student wing and campaigning for local candidate – harassment, intimidation and threats by governing party supporters – false criminal charges against brother later dismissed – short-term and low-level activities and no well-founded fear of harm – returned failed asylum seeker – mental health diagnosis and treatment – vulnerability to stress and relapse – incapable of doing paid work – country information – limited availability of mental health treatment, and social stigma – mental health ground claimed only in regard to complementary protection and relocation – claims considered cumulatively – small but real chance of serious harm under refugee criterion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1), (3), (4)(b), 5AA, 46A, 48A, 36(2)(a), 91K, 411, 424A, 427(2)

CASES
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
Jayasinghe v MIEA (1997) 76 FCR 301
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZASP v MIAC [2007] FCA 771
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

1. The applicant claims to be a citizen of Bangladesh. He arrived in Australia by sea at the Territory of Ashmore and Cartier Islands (Ashmore) [in] January 2013, without documents or authorisation.

2. There are two applications for review before the Tribunal. The first application is for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2017 to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa under s.65 of the Migration Act 1958 (Cth) (the Act). The second application is for review of a decision dated 21 December 2020 to refuse to grant the applicant a Temporary Protection visa (subclass 785) visa.

   Procedural history

3. Initial processing as a UMA: Officials of the (now) Department of Home Affairs initially considered the applicant as an unauthorised maritime arrival (UMA), and therefore subject to the bar against UMAs applying for visas under s.46A of the Migration Act 1958 (Cth) (the Act). On 11 January 2016, the Minister lifted the s.46A bar and invited the applicant to apply for a protection visa.

4. SHEV application: On 15 March 2016, the applicant applied for a Safe Haven Enterprise Visa (subclass 790) ('the first SHEV application'), pursuant to the 'fast track' provisions of the Act. On 15 June 2017, a delegate of the Minister refused to grant the visa and notified the applicant by email on 15 June 2017. The applicant sought review of this decision by the Immigration Assessment Authority (IAA), which on 26 February 2018, affirmed the decision to refuse to grant the visa. (The applicant’s representative informed the Tribunal, in generic terms, that the applicant relied on all the materials that he had submitted to the Department and to the IAA. The Tribunal advised the applicant of all the documents before it, which did not include any additional material provided to the IAA. Neither the applicant nor the representative suggested that there was any such material.)

5. The applicant is determined not to be a UMA: Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447 on 6 August 2018, the applicant was determined not to be an ‘unauthorised maritime arrival’ (as was defined in s.5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant him a Safe Haven Enterprise visa was not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division (MRD) of the Tribunal under s 411.

   AAT case no. 1826690: Application for review of the decision of 15 June 2017 to refuse to grant a SHEV visa

6. On 12 September 2018, following the decision in DBB16 v MIBP, the applicant lodged an application for review with the MRD, in relation to the decision of 15 June 2017. The applicant also submitted that, as the notification letter of 15 June 2017 failed to correctly state his rights to merit review at the AAT, it was an invalid notification and the prescribed period within which to make a review application had not commenced. the Tribunal accepts that this application for review (case number 1826690, the 'first review application') is valid.

   AAT case no. 1909434: Second application for review of the decision of 15 June 2017

7. On 13 December 2018, the Federal Circuit Court declared that  the Department had not validly notified its decision to refuse to grant the first SHEV. On 23 March 2019, the Department notified the decision, correctly stating the applicant's review rights and meeting other statutory requirements. On 16 April 2019, the applicant lodged a second review application in relation to the same decision (although he incorrectly gave the date of the decision as 23 March 2019, i.e. the date of the notification). This is AAT case number 1909434.

8. On 16 August 2022, the Tribunal wrote to the applicant noting that the Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771 and that, once it had completed the review in relation to case 1826690, it would no longer have jurisdiction in relation to application for review 1909434. The applicant accepted this, and withdrew the application. The Tribunal decided on 6 September 2022 that it had no jurisdiction in that matter, on the basis of the withdrawal.

   AAT case no 2100464: Application for review of the decision of 21 December 2020 to refuse to grant a TPV visa

9. On 18 September 2020, the Department wrote to the applicant inviting him to lodge a valid application for a visa, within 7 working days. (The letter stated that the Minister had made a determination that s.91K did not apply to an application for a visa made within 7 working days; and that the Minister had also lifted the s.48A bar which would have prevented him from making a further protection visa application onshore following a protection visa refusal or cancellation. In late 2021, the Full Federal Court handed down the judgment in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20) which found that the s.91K was not applicable to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. This means that, while the Minister had lifted the s.48A bar, in fact it had no practical effect, as the applicant was never subject to the s.91K bar.

10. On 28 September 2020, the applicant applied for a Temporary Protection (subclass 785, TPV) visa. On 21 December 2020, a delegate of the Minister refused to grant the visa. On 15 January 2021, the applicant applied to the Tribunal for review of that decision (case no. 2100464).

11. Therefore, the Tribunal has before it two valid applications for review.

    Combined applications

12. Section 427(2) of the Act states that the Tribunal must combine the reviews of two or more Part-7 reviewable decisions made in respect of the same non-citizen. The Tribunal notes the practical benefit of doing so in this particular case, as the factual and legal issues in both the SHEV and TPV applications overlap significantly.

13. The Tribunal wrote to the applicant on 22 July 2022, advising of its proposal to combine the three applications for review and produce one decision record, and inviting his comments. On 29 July 2022, the applicant requested the Tribunal to combine the review applications for 1826690 and 2100464.

14. In subsequent correspondence, the Tribunal and the applicant referred to the combined review application with the case number ‘2100464’, for convenience. The Tribunal case files also reflect this.

    Outcomes

15. For the following reasons, the Tribunal has concluded that the decisions under review – the decision to refuse to grant the applicant a SHEV subclass 790 visa and the decision to refuse to grant him a TPV subclass 785 visa - should be remitted for reconsideration, on the basis that the applicant satisfies s.36(2)(a).

    Criteria for a protection visa

1. The issue in this case is whether the applicant meets the refugee criterion set out in s.36(2)(a), and if not, whether he is entitled to complementary protection under s.36(2)(aa). The criteria are identical in relation to both the SHEV subclass 790 and the PTV subclass 785 visas.

2. The relevant law is summarised in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

3. The applicant claims to be a supporter of the opposition Bangladesh Nationalist Party (BNP), who participated in political activities with the party’s student wing from around [Year] until his departure from Bangladesh in 2012, particularly during the 2008 parliamentary elections. He claims to remain committed to the party, and future activism. He claims to fear that the Awami League (AL)-led government will persecute or significantly harm if he returns to Bangladesh, as a BNP supporter.

4. Beyond this, his protection claims have evolved over time.

   §  During his primary applications, he claimed to have been subject to false criminal charges brought by local AL opponents. In 2011, he and his brother had an altercation with an AL thug over his treatment of a girl who was with him in public. This led to false charges of sexual harassment against the applicant and his brother, which caused the applicant to go into hiding and in mid-2012, flee the country for [Country 1]. The applicant has since advised that the charges were in fact against his brother, and have now been dismissed by the courts.

   §  The applicant claims that, in addition to his support for the BNP, which he has sustained in Australia, he fears that the AL government will persecute or significantly harm him due to his broader anti-government political views, and that they will target him as a failed asylum seeker imputed to have made political claims against the government.

5. The applicant was diagnosed with schizophrenia and depression in 2019. His representative told the Tribunal that he has no instructions to present claims on the basis of the applicant’s mental health generally, but these are relevant when assessing his eligibility for complementary protection, insofar as they affect the reasonableness of any relocation. In other words, if the Tribunal were to find that he does not have a well-founded fear of persecution for a reason set out in s.5J(1) but is satisfied that there is a real risk he will be subject to significant harm in his home area of Narsingdi, his mental health conditions would make it not reasonably practicable for him to relocate to another part of Bangladesh where he does not face a real risk of significant harm.

6. In a statutory declaration dated 20 January 2023, the applicant advised the Tribunal ‘I do not have [a] subjective fear of harm solely on the ground of mental health issues’ but rather that his return to Bangladesh would cause a deterioration in his mental state, and make it practically difficult for him to relocate within the country. The Tribunal addresses below whether, on the material before it, there is a broader protection claim based on the applicant’s mental health conditions.

   Background

7. The applicant is a [Age] year old man from [Location 2], Narsingdi District, Bangladesh. He is a Muslim Bengali; and speaks Bengali (Bangla) and, more recently, some English.

8. The applicant lived in [Location 2] until at least late 2011. He said at hearing that this is close to or part of the Narsingdi city urban area. He claims to have moved to Raipura (an upazila, sub-district in Narsingdi district) and to Narsingdi city proper. He estimated that this is about two to two-and-a-half hours by rickshaw from his home. Although it is difficult to pinpoint the applicant’s location, Google Maps gives the distance between [Location 2] (the [Mosque]) and Raipura Upazila as [Distance]km. All these locations are in the general area of Narsingdi. He stayed there until his departure for [Country 1], in September 2012.

9. The applicant attended primary and secondary school to [Year] (approximately aged [Age]). In his statement of claims, however, he referred to having started his political activities after completing his Secondary School Certificate (SSC) in Year 10, suggesting that he may have studied for a year or two longer. He claims to have been a volunteer worker the BNP from that time, and to have done unpaid work on the family farm.

10. The applicant is unmarried and has not been in any relationship. His father died in approximately 2008, and his mother is a homemaker. She is currently living in the family home with the applicant’s paternal grandmother, and his younger brother.

11. The applicant has an older sister, who is married and lives with her husband. His older brother, [Mr A], born in [Year], features in the applicant’s protection claims. The applicant said that he currently lives in Jamalpur, where he works in a [Workplace]. (This likely refers to Jamalpur, some 190km to the Northwest of Narsingdi.) His younger brother [Mr B] had previously lived and worked in the capital Dhaka, and then in [Country 2]. He is currently living in the family home.

12. The applicant departed Bangladesh in September 2012, flying to [Country 1]. He said that he obtained a Bangladesh passport and used it to depart Bangladesh, but that an agent in [Country 1] took it. As noted above, he travelled to Australia in early 2013 by boat from [Country 3], without documents or permission.

13. The Tribunal has limited information about the applicant’s circumstances in Australia. He worked in the [Work sector] for about two years, but in 2019 was diagnosed with schizophrenia and depression, and has since received insurance compensation for total permanent disability. He currently lives in a two-bedroom unit in Sydney. He shares his accommodation with a woman who has provided him with assistance, including with medical appointments. The applicant said that, due to the side-effects of his medication, he mainly stays home and watches television.

    Evidence

14. The evidence before the Tribunal includes the following relevant material (this is a consolidated list of material to the Department and the Tribunal, and is not exhaustive):

    Arrival interview

    §The applicant took part in an Irregular Maritime Arrival Entry Interview held on 24 January 2013. A recording of the interview is on the Department file. The Tribunal has listened to the recording, and is satisfied that the notes of the interview (Parts A, B and C of the pro forma) accurately reflect his responses.

    SHEV application

    §The SHEV visa application lodged on 15 March 2016, and accompanying forms. The applicant attached to this a statutory declaration dated 11 March 2016, setting out his protection claims.

    §Statutory declaration of 11 March 2016.

    §A 101-page submission from the representative, with a large volume of country information (weblinks and summaries), some legal arguments and references to decisions in similar matters. Although this appears to be a generic document, it inserts some references to the applicant at page 73, 77 and 99-100 (although some of these are in the plural, suggesting that they have been copied from other submissions).

    §Identity documents:

    -Bangladesh birth certificate, issued [in] January 2013

    -Nationality certificate, issued [in] January 2013

    -Australian ID documents, such as Photo Card and ImmiCard.

    §The applicant attended a protection visa interview on 27 March 2017.

    §Protection visa decision record of 15 June 2017.

    TPV application

    §The TPV visa application lodged online on 28 September 2020.

    §Statutory declaration dated 25 September 2020. This is identical to the statutory declaration of 11 March 2016, but with an additional paragraph setting out the applicant’s contacts with the BNP in Australia.

    §Supporting documents:

    -Letter of support from [Mr C], [Official] of [Organisation][1] Australia, dated 25 March 2017.

    [1] [Information redacted].

    -Medical certificates dated 30 May 2018, 10 July 2020 and 19 November 2020. (detailed below)

    §The applicant attended a telephone interview on 2 December 2020. The Tribunal has listened to the recording of the interview, which is on file.

    §Protection visa decision record of 21 December 2020.

    Materials to the Tribunal

    §A brief submission dated 30 November 2022 sets out the applicant’s protection claims.

    §A follow-up submission dated 1 December 2022 addresses the applicant’s political claims and refers to his health condition.

    §The applicant provided updated information about his personal (and health) situation, including some medical certificates (2020 and 2021) and prescriptions, in several emails.

    §He authorised the Tribunal to contact his health professionals and Centrelink to seek further permission. The Tribunal followed up on the former, but alerted the applicant that he should obtain and submit any relevant material from the latter.

    §The applicant’s GP provided some limited information, and the Tribunal also received by summons clinical, administrative records and correspondence from his psychiatrist (see details and analysis below).

    §The submission of 30 November 2022 refers to several DFAT reports (including the most recent DFAT Country Information Report – Bangladesh, published on 30 November 2022), a Human Rights Watch statement of 10 October 2022 accusing the Bangladesh government of a crackdown on opposition parties, and several English language press articles providing detail on the crackdown, including the use of false charges.

15. The applicant appeared before the Tribunal at a hearing held over two sessions, on 21 October 2022 and 6 December 2022, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant did not present any documentary evidence or witnesses.

16. The applicant’s representative is Mr Mahalingam Sutharshan, of Parish Patience, who attended the hearing. At the first hearing sessions, Mr Sutharshan’s colleague, Mr Awrangajeb Habib Raj, and a Tribunal officer, were also present as observers.

17. Mr Sutharshan declined to provide the Tribunal with a copy of the delegate’s decision record, as required by the Tribunal’s Practice Direction – Migration and Refugee Matters, of 1 August 2018. He explained that this was in accordance with his firm’s policy and legal advice. He did not respond to the Tribunal’s observation that it may have been appropriate, given the applicant’s mental health issues and for the efficient conduct of the review, to depart from this practice.

18. On 6 December 2022, the Tribunal wrote to the applicant under s.424A of the Act, inviting his comments/response in writing to information that would form the reason, or part of the reason, for affirming the decision under review. This included information that the applicant had provided at various points in time about his conflict with AL adversaries, relevant because it went to his profile as a BNP supporter in his home area. It also included information from the applicant’s psychiatrist about his mental health, which could go to the applicant’s prospects if he were to return to Bangladesh.

1. The applicant submitted a further statement dated 23 December 2022, with his comments/response to the Tribunal’s s.424A letter. On 16 January 2022, the Tribunal wrote to the applicant to seek clarification of some of the points in his letter of 23 December 2022. The applicant replied in a brief statutory declaration dated 20 January 2022.

2. The Tribunal has taken into account relevant aspects of the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report – Bangladesh, dated 30 November 2022, and has had regard to a range of other country information, details of which are recorded below.

   Receiving country

3. The applicant claims that he is a Bangladesh national. He departed Bangladesh on a genuine passport in his own name, although this is no longer available as an agent in [Country 1] took it from him. He has provided a Bangladesh birth certificate and a nationality certificate, both issued in January 2013, as evidence of his identity and nationality. He speaks Bengali (Bangla), and demonstrated his familiarity with the country’s politics and geography. The Tribunal accepts that he is a Bangladesh national, and assesses his protection claims against Bangladesh as the receiving country.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Assessment of facts

4. The Tribunal must make findings of fact as a basis for assessing Australia’s protection obligations. It is mindful of the principles that apply in fact-finding generally, and assessments of credibility.

5. The Full Federal Court in AVQ15[2] observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3] However, it is also well-established that the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is it required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[4] The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility, and commentary on credibility assessments from other sources, in evaluating the applicant’s evidence as a whole.

   [2] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

   [3] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor

6. The Tribunal recognises the need for particular care in this case, as the applicant came to Australia by boat almost ten years ago, and there have been significant intervals between his various written submissions and interviews. The applicant’s mental health disorders, discussed immediately below, are also highly relevant.

   Mental health issues

7. The applicant has provided evidence that he has suffered mental health disorders – schizophrenia and depression – since 2019. He described the impact of these, and the side effects of medication, as including an inability to recall details, and feeling withdrawn and lethargic. These have an impact on the conduct of the review (in particular the hearing), and on the evaluation of his claims and evidence.

   Evidence and evaluation of mental health issues

8. Information provided to the Department: The applicant’s representative submitted to the Department two certificates from the applicant’s GP, [Dr D], and one from consultant psychiatrist, [Dr E], from July and November 2020. These refer to his specialist treatment since May 2019, and his diagnosis of paranoid schizophrenia and chronic major depression. [Dr D] describes his earlier symptoms, such as the difficulty communicating and providing information, his lack of orientation, and his reclusive habits. They both note that he was on anti-depressant and anti-psychotic medications.

9. At the Department interview on 2 December 2020, the applicant had difficulty giving details, particularly in relation to timeframes. The delegate accepted that he ‘has mental health conditions including schizophrenia and depression’, without further details.

10. Information provided to and obtained by the Tribunal: In a statement dated 12 August 2022, the applicant described his health and social circumstances in the following terms: ‘I suffer from significant mental health issues including depression, anxiety, panic attack, hallucinations since 2019. I feel like someone [will] come and kill me. I fear I will be killed in Bangladesh. In addition, I could not have family support here and feeling home sick due to separation from my family.’ He provided copies of the certificates from [Dr E] and [Dr D], and a copy of repeat prescriptions for Zyprexa and Pristiq.   

11. Given the centrality of this issue to the review, and uncertainty as to the applicant’s and his representative’s ability to obtain complete medical records, the Tribunal approached the applicant’s GP and psychiatrist (with the applicant’s consent), the latter by way of a summons dated 31 August 2022, requiring specified documents including clinical notes.

12. On 6 September 2022, the Tribunal received from [Dr E] documents, including administrative records of consultations with the applicant between May 2019 and August 2022, clinical notes, letters to the applicant’s GP, reports to [Insurance Company]) dated 23 June 2020 and 18 August 2020, and a report to [Lawyers] dated 12 November 2021. The Tribunal forwarded this material to the applicant and the representative, for transparency and to assist them in preparing any further submissions.

13. Relevantly, the documents from [Dr E] reveal the following:

    §  The applicant attended regular consultations with [Dr E], from 30 May 2019, accompanied by a female friend who, in [Dr E]’s opinion gave a ‘very accurate picture of his condition at home’.

    §  He was diagnosed with schizophrenia in May 2019, and later depression.

    §  In mid-2019, the applicant attended [Dr E]’s office one week after his initial consultation, and then on a fortnightly basis until late 2019, when this became monthly. The frequency of consultations was further reduced in late 2021.

    §  He has received medications, namely the anti-psychotic Zyprexa (since May 2019) and the anti-depressant Pristiq (since July 2019). Clinical notes indicate that the applicant had responded well to these treatments, and has improved markedly. However, he suffered a relapse in mid-2020 when he had his driving licence cancelled following a traffic violation. [Dr E] opined that the applicant remains vulnerable to relapses if subject to stress.

    §  On 25 June 2020, [Dr E] noted: ‘No treatment required other than keeping him on anti-psychotics and anti-depressants and also to continue psychological therapy with a clinical psychologist’.

    §  On 10 and 18 August 2020, [Dr E] confirmed to [Insurance company] Insurance his view of the applicant’s future treatment needs, adding that he expected the applicant to improve, but also anticipated ‘relapses under stress’, as the ‘combined depression with psychotic symptoms in the context of being away from his mother’ have become treatment resistant.

    §  On 12 November 2021, [Dr E] addressed the applicant’s capacity to provide instructions to his solicitor dealing with a disability insurance payment claim, and his capacity to manage his own financial affairs (i.e. a TPD lump sum benefit). He ‘assessed him to be in the recovered 50% of people with schizophrenia who would have recovered or improved to the point where they can work and live on their own, but [that he] remains permanently unable to work, due to his vulnerability to stress and lack of endurance […]’. [Dr E] linked this with the residual symptoms of schizophrenia and depression, plus the effect of the medication.

    §  On 25 January 2022, [Dr E] noted that the applicant had been reasonably stable for a long time, and reduced his Zyprexa medication.

    §  The clinical notes include several references to the applicant’s psychotic symptoms, with repeated references to the effect of the applicant’s separation from his mother.

14. The applicant forwarded to the Tribunal a note from [Dr E], dated 2 December 2022, confirming that his mood has improved, and his hallucinations and paranoid delusions have stopped troubling him. [Dr E] added: ‘Lately, however, I noticed that the matter of his visa is causing him severe distress due to uncertainty about his future. Signs of relapses began to emerge. […] He needs to continue his treatment in Australia, otherwise relapses are very likely.’

15. The Tribunal accepts the expert opinions of [Dr E] and [Dr D], and the associated documentation, and takes into account the applicant’s oral and other evidence. It finds:

    §  The applicant was diagnosed in 2019 with schizophrenia and depression that he linked with his former work in [Work sector] ([Job task] and other physical work). He was assessed as having a total and permanent disability that led to a successful insurance claim.

    §  The applicant has received medications, in the form of anti-depressants and anti-psychotics, and supporting professional services. His psychiatrist assesses him as having responded well to this treatment, and to be stable, though at risk of relapse if he is subject to stress or pressure. The applicant’s separation from his family and, implicitly, his social isolation in Australia, have been major factors adding to his stress.

16. [Dr E]’s letter of 2 December 2022 raises a number of questions.

    §  [Dr E] states that he has noticed the applicant’s ‘severe distress’ related to his uncertain visa status. He did not advise whether this was on the basis of direct observation or the applicant’s self-reporting; what these symptoms were; or what (other) ‘signs of relapse’ had emerged recently.

    §  The letter identifies the applicant’s uncertain migration status as a source of stress, and presses for the grant to him of permanent residency. The Tribunal readily accepts that long migration processing timelines and (in this and similar cases) the prospect of being granted only temporary protection at best, may cause applicants stress.

    ­   However, it is striking that [Dr E]’s earlier clinical notes and letters, which comment in detail on the applicant’s preoccupations and worries, do not mention his migration status. The Tribunal is concerned that [Dr E]’s letter of 2 December 2022 was written at the applicant’s request, for the purpose of this review (in the lead-up to the resumed hearing). and that [Dr E] relied on information that the applicant reported to him, such as the stress he suffers due to his uncertain migration status in Australia. [Dr E]’s recommendation that the applicant receive an early, favourable migration outcome reinforces this concern.

    ­   The letter does not explain why there is no mention of this factor in his previous clinical notes or correspondence. And while it describes the impact on the applicant of his uncertain migration status, such as his inability to plan for the future, it gives no insight as to whether other migration outcomes (such as the applicant’s return to Bangladesh, if he were found not to be owed protection) would remove or alleviate the stress associated with this uncertainty.

    §  [Dr E] also stated that the applicant ‘needs to continue his treatment in Australia, otherwise relapses are likely to occur’. This seems to be a reference to the applicant’s continued access to medications, supported by specialist therapy. However, [Dr E] does not explain why such treatment needs to be provided in Australia. He does not comment on the applicant’s expected medical needs if he were to return to Bangladesh (compared with his situation in Australia). And he also does not indicate whether he ([Dr E]) has any knowledge or expertise in relation to available treatments in Bangladesh.

    §  The Tribunal accepts [Dr E]’s opinion, insofar as it is based on his medical expertise. However, it is concerned that the most recent opinion is based on the applicant’s self-reporting of his condition, without any critical evaluation; that it relates at least in part to matters that are not demonstrably within [Dr E]’s field of expertise (such as medical treatment options in Bangladesh); and that it has the character of general patient advocacy rather. As such, it is of limited relevance to this review.

17. In his statement of 23 December 2022 (in reply to discussion at hearing and in response to the s.424A letter),  the applicant asserted that his ‘mental health issues developed initially due to [his] fear [of] going back to Bangladesh. It further developed due to separation from my family and unresolved immigration matters’. There are no other details or supporting evidence. As noted above, the Tribunal has found no mention of such past events in Bangladesh in the medical records from 2019, or anything to suggest that the applicant’s protection claims (as articulated from the time of his arrival in Australia in early 2013) had caused him mental health problems. It is not satisfied on the material before it that the applicant’s mental health issues are attributable, in part or whole, to any specific past events in Bangladesh.

18. The Tribunal accepts that the applicant’s diagnosis of depression and schizophrenia in 2019 is potentially consistent with his claim to fear prospective harm in Bangladesh, there is minimal medical evidence to indicate such a link. In the Tribunal’s view, the applicant’s mental health issues are of only weak probative value in assessing whether he genuinely fears harm in Bangladesh for the reasons stated.

19. Ability to present claims and evidence at hearing: The Tribunal’s ‘response to hearing invitation’ form includes two questions: ‘Is there any issue that may affect your ability […] to take part in the hearing […]?’, and ‘Do you believe that you […] will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation?’.  In reply to both questions, the representative wrote ‘mental health issues’. Although the representative submitted some supporting documents, he did not elaborate on the mental health issues or propose any methods by which the Tribunal could facilitate a better exchange. He intimated at hearing the reference to ‘mental health issues’ was meant as a ‘general marker’ only. The Tribunal was unable to elicit any further details

20. At hearing in late 2022, the applicant presented as a quietly spoken, somewhat hesitant witness, although at the second hearing session, he appeared somewhat more listless.

21. It was clear that the applicant had difficulty with timeframes, with comparisons (such as addressing statements made at different points in time) and with nuanced questions. At the first session, he gave clear, relevant responses to the Tribunal’s questions about past events in Bangladesh, and at the start of the second session, confirmed the Tribunal’s understanding of the key points from his earlier evidence. However, at the second session, he struggled to provide clear responses, for instance when asked to describe his political activities in Bangladesh (when he relied on the Tribunal’s prompts) or what he did in [Country 1]. It was not clear whether his brief responses, which sometimes were simply that he did not know, reflected genuine lack of recall about past events; and/or a lack of focus on the Tribunal process; and/or a choice not to be drawn on such issues.

22. The Tribunal took these factors into account in the pacing and framing of the discussion. The applicant is represented, and the Tribunal also gave him the opportunity through the s.424A letter (and the scope for post-hearing submissions) to address key issues and concerns in writing. It is satisfied, in the circumstances, that he had a reasonable opportunity to present his claims and evidence. The statutory declaration of 20 January 2023, submitted by the applicant’s representative, briefly states: ‘I was able to give evidence because I had my representative as a support person’.

23. Assessment of evidence: The applicant has consistently claimed to have supported the BNP, including in the December 2008 general elections, and to have been implicated in false charges arising out of an incident in 2011, which prompted him to leave Bangladesh.

24. The Tribunal has before it a range of material relating to these claims, such as the applicant’s statutory declarations, records of his interviews with the Department and the evidence relating to his political activities in Australia, much of which pre-dates his mental disorder diagnoses; as well as his cogent account at the recent hearing of his family’s current circumstances.

25. There are, however, some marked discrepancies in his successive accounts, particularly in relation to events in 2011 that allegedly resulted in false criminal charges and prompted him to flee Bangladesh. The applicant has since stated that these charges have since been resolved, and his protection claims now rest on his support for the BNP generally and his opposition to the ruling AL However, the Tribunal considers it appropriate to consider the claimed 2011 incident, for the sake of completeness and to take into account, in its overall assessment, whether there may be any residual animosities between him and local AL thugs. The Tribunal accepts, that given the passage of time and the applicant’s mental health issues, it would be unsafe to draw adverse inferences from such inconsistencies. However, for the reasons set out below, this does not mean that the Tribunal is required to accept one or other versions of these events as truthful, as there are other means of assessing the credibility of these claims and evidence.

    Political claims: Bangladesh Nationalist Party (BNP)

26. The applicant has consistently claimed that he engaged in political activities in Bangladesh, in a volatile environment that involved verbal stoushes, intimidation and general instability.

    Political interests and involvement in Bangladesh

27. In his statutory declarations, the applicant made the following claims about his family’s political background and his activities in Bangladesh.

    §  His family are traditionally BNP supporters.

    §  After completing his Secondary School Certificate (SSC, Year 10), he joined the BNP’s student wing (Bangladesh Jatiyatabadi Chhatra Dal, JCD), at the thana (police station) level. He worked closely with the JCD leader ‘[Mr F]’. This would therefore have been in around [Year].

    §  During the 2008 parliamentary election campaign, he campaigned for the candidate in the seat of [Electorate], [Mr G]. This involved attending protest marches and demonstrations. The opposing AL candidate was [Mr H], won the elections, unfairly.

28. The applicant confirmed these claims at hearing. He said that he joined the BNP’s student wing in about 2011 or 2012. He did not join the party proper. At the time, he received a JCD membership certificate and they recorded his name on a list. When asked whether he still had the certificate, he said that he had previously submitted a document relating to this. (This appeared to be a letter from the BNP Australia, discussed below.)

29. At the Tribunal hearing, the applicant said that his political work involved telling people on the street about upcoming political meetings (i.e. spreading news about rallies, etc.), on instruction from organisers.

30. He named [Mr G] as the local BNP candidate. He said that [Mr G] had been close to his uncle, and the applicant had met him in person when he called on their home.

31. The applicant confirmed that his entire family supported the BNP, adding that his older brother [Mr A] had been more active than him. He noted that, after the false criminal charges were brought, [Mr A] had withdrawn from his political activism. During the exchange, he also mentioned that his mother had forbidden his younger brother [Mr B], from engaging in politics, due to the problems that his older brothers had experienced. However, he ‘silently’ supported the BNP.

1. In its most recent country information report on Bangladesh[5], the Department of Foreign Affairs and Trade (DFAT) noted the dominance of the political scene by the AL and BNP, their longstanding enmity, and the key role of personal patronage (rather than political ideology). It also noted that since the AL’s election victory in 2008, the BNP and its members have been targeted, and have been unable to sustain their influence and patronage. This information is broadly consistent with the applicant’s account, including his claim that his brothers – while continuing to favour the BNP – do not engage in any political activities. The applicant’s references to the local BNP candidate for the [Electorate] constituency, the JCD and other aspects of political life are also relevant. However, this information is general in nature, and sheds little light on the applicant’s own political views, past engagement or ongoing conviction.

   [5] DFAT, Country Information Report – Bangladesh, November 2022, paras 3.65-67 and 3.77-84.

2. Relevantly, at the entry interview in January 2013, the applicant stated that he had worked for both parties, and did not mention the BNP specifically.  He said he distributed political information and attending meetings. At face value, this suggests that he, along with other under- or unemployed youth, did casual work or attended rallies on behalf of the major parties, perhaps in return for a nominal payment. The Tribunal sought the applicant’s comments on this, at hearing and pursuant to its s.424A letter. In his response, the applicant replied that he is not well-educated; that he was exhausted after the boat trip; and that he recalled the officer advising that he should keep his answers to the questions short. The Tribunal accepts that the primary focus of the entry interview is to ascertain a person’s identity and circumstances, rather than give a considered account of their protection claims. However, it is surprised that he specifically stated that he worked for both political parties, and does not consider that the applicant has adequately explained this statement. Overall, the interview notes and the applicant’s responses to the Tribunal confirm the impression that his allegiance to the BNP is only marginal; that any links he had with the JCD were nominal; and that any tasks he performed for the BNP, the JCD and or local political candidates were at a low level, and on instructions from organisers.

3. In sum, the applicant’s account of his political role in Bangladesh indicates that, while he may prefer the BNP and know some of its local politicians, his role in its student wing and during the 2008 parliamentary election was as one of the many young men working at the grassroots level to carry out specific tasks, such as distributing leaflets, helping set up meetings and being present at rallies as part of a larger crowd. He did so on instructions from local JCD members or party officials, and in the company of many other young people. The Tribunal does not accept that, in the course of any such activities, the applicant worked closely with any JCD or BNP leaders, such as [Mr F] or [Mr G]. It also does not accept he had any profile or influence through such activities, or that the AL or others perceived him as such.

   Subsequent political engagement, in [Country 1] and Australia

4. [Country 1]: The applicant wrote in his protection visa applications that he was in [Country 1] from [September] 2012 to [November] 2012. He claimed that during this period, he continued to maintain his links with local BNP people in Narsingdi, and he sent them money. He did not provide details or supporting evidence. The Tribunal notes that the applicant stayed in [Country 1] for only about two months, and claims to have not worked there. Taking into account his low level political engagement in Narsingdi, it is difficult to believe that he had either the opportunity or resources to have personal contact with or make donations to BNP friends in Narsingdi.

5. Australia: The applicant claims that he has had had sustained involvement with the BNP since his arrival in Australia in mid-2013, although this petered out in the wake of his mental health issues from 2019.

6. He told the Tribunal that he met some BNP supporters after arriving in Australia, naming a couple of people whom he had had contact with until about 2019. He did not have these persons’ details, or request the Tribunal to confirm his claims. The Tribunal explored whether he had any correspondence, photographs of other evidence to demonstrate his continued political interests in Australia in the period from 2013 to 2019. The applicant responded vaguely that there may be some photographs on an old mobile telephone, or other evidence of his membership. He said he was uncertain whether he might be able to obtain these. The Tribunal has received no further material.

7. The applicant submitted a ‘to whom it may concern’ letter dated 25 March 2017, from [Mr C], of [Organisation], one of several groups claiming to represent and promote the BNP in Australia. [Mr C] wrote that he has known the applicant since 25 March 2016, and gave the following information about the applicant’s work in Bangladesh and Australia:

   §  The applicant participated in various anti-government rallies and demonstrations’ in Bangladesh and, so far as [Mr C] knows, ‘he and his family have suffered severe violent acts’ at the hand of AL activists.

   §  [Mr C] attested that the applicant has been ‘involved with political and community activities since his arrival in Australia’; and he is a ‘hardworking, punctual and sincere social worker’ (which may imply some role within the Bangladesh expatriate community’.

   §  [Mr C] stated that the applicant was ‘now working as an executive member of BNP convening committee’.

8. At hearing, the Tribunal noted [Mr C]’s reference to having met the applicant only in March 2016, and asked whether the applicant had any prior contact with the BNP (as a political group) since his arrival in Australia three years earlier. He said that after arriving in Australia, he attended ‘all the events’ of the Australian BNP, although shortly thereafter said that he ‘could not remember’.

9. The Tribunal has a general concern that [Mr C]’s letter has the character of a general reference letter to assist with the applicant’s protection visa application; that it relies largely on information that the applicant provided to him (for instance, relating to his claimed political profile and his experiences in Bangladesh); and that the reference to the applicant as an office-bearer lacks details or supporting evidence. While the Tribunal accepts that the applicant may have had contact with this BNP-related group in 2016, for the purpose of obtaining a letter and possibly also for social or political contacts, it places minimal weight on this letter as evidence of the applicant’s past or current involvement with the party, or his political commitment.

10. The applicant also asked whether any BNP friends in Australia had given him any social or other support, since he fell ill. The applicant replied that he cannot remember any political contacts offering to help him.

    Analysis and findings

11. The Tribunal accepts, on the basis that it is plausible, that the applicant prefers the BNP, that he joined the student wing in Narsingdi, and that he participated in some low-level activities during the 2008 campaign, such as promoting the candidate and upcoming rallies, and attending these rallies. It does not accept that he gained any political profile or influence as a result of these activities.

12. The Tribunal does not accept that the applicant has had any ongoing political interest since leaving Bangladesh in late 2012. The Tribunal has taken into account the applicant’s mental health condition which, since 2019 will have impacted his capacity to engage in social or political activities, and may also have affected his memory about prior activities. However, it finds minimal evidence to demonstrate any level of political interest or engagement. It accepts as plausible that he has met Bangladeshis in Australia who support the BNP. This is unsurprising, given that it is one of the country’s major political parties. It also accepts that he approached a BNP group in Australia for a letter of support and may have attended some of its events during or around 2016. The limited available information suggests that like-minded Bangladeshis in Australia (i.e. people sympathetic to the BNP) meet up for social, cultural and political purposes.

    Adverse experiences in Bangladesh

13. The applicant claimed that in 2011, he was involved in an argument with a local AL thug that resulted in false criminal charges, which prompted him to flee Bangladesh. Although he now claims that the criminal charges have been dropped and he no longer relies on them, the Tribunal considers it appropriate to address them, in case there are any residual claims (such as local conflict, or the circumstances of the applicant’s departure from Bangladesh) that may be relevant to its overall assessment.

    Local political conflict

14. The applicant claimed to have joined the JCD in around [Year], and assisted with the BNP candidate’s election campaign in 2008. In his original statement of claims, he referred to AL supporters harassing and intimidating their BNP opponents, without specifics. He claimed that after the AL election victory in December 2008, AL activists stepped up their harassment of their BNP opponents, including through the laying of false, politically motivated charges.

15. At hearing, the Tribunal asked the applicant about his experiences as a BNP supporter, in the period from his (claimed) political engagement in [Year] up to the alleged incident in 2011. He said there were often arguments and intimidation from AL supporters. Particularly after the AL election victory in late 2008, he felt increasingly unsafe. He did not refer any specific or serious incidents involving him directly. 

16. As noted in DFAT’s latest country information report, there is longstanding enmity between the AL and BNP at all political levels. The political tension is infused with other matters, such as personal, business and sometimes criminal disputes. The Tribunal accepts that the applicant witnessed incidents, particularly after the 2008 elections, involving the harassment and intimidation of BNP members and activists. The Tribunal is not satisfied that he was the direct target of any such action; that he suffered any serious or significant harm; or that such incidents had any other marked impact on him.

    Argument and political motivated false political charges

17. The applicant’s claims rest on an incident in 2011, which allegedly resulted in a local AL thug filing false criminal charges against him and his brother. In his statutory declarations, he described the following scenario:

    §  One day, he and a friend were sitting and talking on the side of the road.

    §  They saw a notorious AL member ‘who was famous for his notorious things’ walking along with a girl. He appeared to be handling her with force.

    §  The applicant challenged the AL thug, who then started arguing and attacking the applicant and his friend. The applicant’s brother was nearby, and intervened.

    §  After the altercation, the applicant went home, assuming the matter was finished.

    §  In late 2011, the police came to the family home to investigate the matter, with an arrest warrant. The applicant was not home at the time. He found out, to his shock, that AL members had registered a false case of sexual harassment against him and his brother, as a ‘revenge action’.

18. The applicant claims that, after learning about the false charges, he was in hiding in Raipura and Narsingdi city.

19. The applicant spoke to these claims at his Department interviews on 27 March 2017 and 2 December 2020. At the Tribunal hearing, he gave the following account of the incident:

    §  He and his brother [Mr A] were sitting outside the mosque, and observed a boy and girl – ‘unknown people’ – sitting there together.

    §  The applicant’s brother asked the boy where he was from. The applicant intimated that his brother challenged the couple’s right to be there, in particular because their conduct outside the mosque was inappropriate. The boy called over a friend, who joined in. That person was [Mr I], a local AL thug whom the applicant and his brother knew. The Tribunal put to the applicant that his account suggested that [Mr A] had acted unreasonably and provocatively towards unknown bystanders. In response, he reiterated that the couple had been acting improperly. He added that, in any event, he thought that local AL thugs had staged the whole incident (i.e. to provoke [Mr A] and form the basis for charges to be brought against him).

    §  A fight ensued, in which the applicant and his brother suffered some bruises from punches to the face.

    §  The applicant said that [Mr I] brought charges only against his brother, a day or two after the incident.

    §  When the police came to the family home one evening, the applicant was at home but [Mr A] had already gone into hiding. On seeing the police approach, the applicant panicked and fled the house. He was in hiding from that time until his departure from Bangladesh. Although the applicant’s evidence was not entirely clear, he appeared to indicate that [Mr I] added his (and perhaps others’) names to the persons falsely accused of criminal conduct.

20. As the Tribunal noted at hearing and in its s.424A letter, the applicant did not mention any specific clashes with AL or other individuals, or any associated harm, in his entry interview in January 2013. In his response, the applicant indicated that the circumstances of that interview were not conducive to him presenting such a claim – it occurred shortly after he arrived in Australia; he was young, tired and unrepresented; and the interviewing officer had told him to keep his responses brief. The Tribunal notes that, in March 2017, he also told the delegate that he had been scared to tell Australian officials about the criminal charges he was subject to. The Tribunal accepts that a newly arrived person may be reluctant to declare that they are subject to criminal charges, even false charges, but it finds that the applicant has not adequately explained his failure to mention any past political conflict, even at this early stage. It is of the view that he added to his claims, to bolster the prospects of receiving protection in Australia.

    Departure from Bangladesh

21. In his statements of claim, the applicant wrote that, after learning about the false criminal charges (in late 2011), his family helped him find an agent to depart the country, including his safe passage through the airport. He flew to [Country 1] in September 2012.

22. In his entry interview, the applicant stated that he left Bangladesh because he had participated in political rallies, where there was always fighting; he wanted to avoid the continued pressure to keep up his participation. As noted above, the applicant gave reasons for his failure to mention past harm in Bangladesh, and its role in him fleeing the country, but the Tribunal finds these unconvincing and does not accept them. It finds that he left Bangladesh for reasons unrelated to these claims.

    Developments in Bangladesh since 2013

23. In his statements of claim, submitted in 2016 and 2020, the applicant wrote that his brother [Mr A] was arrested in relation to the false criminal charges, and later released on bail. The charges were, at that time, still pending.

24. The applicant told the Tribunal that there are no longer any criminal cases against him or [Mr A], and he has no claims based on the former charges. He said that [Mr A] had to attend court on successive occasions, but in the end, the court dismissed the charges. Meanwhile, [Mr A] is now working in [Workplace] in Jamalpur.

25. In his original application, the applicant wrote that ‘the police issued [an] arrest warrant against [both him and his] brother’. One of his claims read: ‘I have a false case against me in order to force me to abandon my political beliefs’. At the recent hearing, the Tribunal asked the applicant whether the criminal proceedings against [Mr A] included him, and if so, what happened to them. In response, he confirmed that there were no charges or criminal proceedings against him, at any time. The Tribunal accepts this recent claim.

26. As noted above, the applicant claims that his younger brother [Mr B] favours the BNP, but refrains from politics, at the insistence of his mother, who did not want him to have the same kind of problems that the applicant and [Mr A] had experiences. The Tribunal accepts that [Mr B] is not politically active, and that he has previously worked in Dhaka and [Country 2]. DFAT and similar sources report that the BNP has lost visibility and public support over the years, largely because of its reduced capacity to offer patronage to supporters. The Tribunal is not satisfied, on the available material, that [Mr B] refrains from political activity because of any past specific harm that the applicant or [Mr A] have suffered at the hands of local AL thugs.

27. In sum, the Tribunal accepts that the applicant’s family continues to favour the BNP, but finds that, mainly due to the BNP’s declining profile and influence, they have pursued personal interests and have minimal political engagement.

    Land dispute

28. At the first hearing session, the applicant said that following his father’s death, the owners of a neighbouring property disputed the inheritance of some of the family’s land. The matter has been before the courts for some three or four years, and is ongoing. In later comments, the representative advised that the applicant does not have any protection claims arising from this matter.

    Findings/analysis

29. As noted above, the applicant now seeks protection on the basis of his general support for the BNP (alongside his anti-government views and his mental health concerns); and not on the basis of the claimed conflict in 2011 and false criminal charges. Nonetheless, the Tribunal records its significant concerns about the claims about the incident in 2011, relating not merely to the applicant’s inconsistent accounts of what occurred (i.e. comparing his statements at the entry interview, his statutory declarations in 2016 and 2020, and his oral evidence to the Tribunal) but also his conduct. It does not accept that the applicant was implicated in any fight with a local AL thug, or that he was subject to false criminal charges.

30. The Tribunal has considered, for the sake of completeness, whether there are any residual matters linked with these claimed events – such as tensions with local AL figures or the circumstances of the applicant’s departure from Bangladesh – that may be relevant to its assessment. On the available material, and having regard to its broad concerns about the credibility of the applicant’s claims as a whole, the Tribunal detects nothing in the applicant’s account of his experiences in Narsingdi or his departure for [Country 1] on a passport in his own name, that could give rise to Australia’s protection obligations.

    Failed asylum seeker

31. The applicant has claims to fear persecution or significant harm as a failed asylum seeker, essentially on the basis that the AL-led government will assume that he has made claims based on an anti-government political opinion.

32. Taking into account the applicant’s personal circumstances (as a young man of limited means) and travel history (his travel from Bangladesh to [Country 1], and then Australia in 2013, and his stay in Australia without a substantive visa), the Tribunal accepts that the Bangladesh authorities may assume that he has made protection claims, and perceive him to be a failed asylum seeker. However, having found that the applicant has no prior adverse profile, the Tribunal is not satisfied that the Bangladesh authorities will take an adverse interest in him for this reason.

    Mental health issues

1. The Tribunal has considered the applicant’s mental health disorders in detail above, including its acceptance of the expert opinion of his psychiatrist [Dr E]. The Tribunal accepts that the applicant has suffered paranoid schizophrenia and chronic major depression since 2019, triggered by his work in the [Work sector]; that he has responded well to medication and professional support; and that he has received insurance funds on the basis of his assessed total and permanent disability. According to [Dr E], the applicant continues to meet this assessment, due to the side-effects of medications and the risk of relapse if he is subject to undue pressure or stress.

2. The Tribunal accepts that the applicant relies on continued access to anti-depressant and anti-psychotic drugs, and the support of specialists. There is little material as to other factors that may have played a role in his current management of these issues in Australia, whether positively or negatively. On the plus side, it appears that he has stable accommodation, access to funds (through the insurance payout) and the emotional support of a female friend with whom he shares accommodation. At the same time, it appears that the applicant’s separation from his family (in particular, his mother) and his relative social isolation in Australia have been among the challenges he has faced here. All of these factors are potentially relevant when the Tribunal assesses the applicant’s prospects if he returns to Bangladesh.

   ASSESSMENT – REFUGEE CRITERION

3. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct and relevant country information, he has a well-founded fear of persecution for any reason set out in s.5J(1) of the Act, on his return to Bangladesh, now or in the reasonably foreseeable future.

4. At hearing, the applicant indicated that he would likely return to his village in Narsingdi, where his mother and younger brother live, although he stressed his fear of political persecution, and it was difficult to elicit any further details.

   Political opinion

5. The applicant seeks protection on the grounds of political opinion, most recently summarised as ‘political opinion and involvement and association supporting the BNP’; ‘membership [of] the BNP’, and his ‘political activities supporting the BNP in Australia’. The submission of 1 December 2022 asserts that the applicant will be at risk ‘by virtue of his continued desire to participate in opposition activities’, and (paragraph 19) that he ‘would be involved politically with the BNP in any part of Bangladesh to such a degree that it would warrant adverse attention from the authorities and Awami League activists […]’.

6. The Tribunal has accepted that the applicant favours the BNP and may have participated in events around the time of the elections in December 2008, but it is not satisfied that he has any further involvement in the party in Bangladesh; or during his stay in [Country 1] during 2012-2013. It accepts that has had some brief contacts with a group named the BNP Australia, primarily to obtain support for his protection visa application.

7. The Tribunal accepts that the applicant prefers the BNP in general terms, but – even allowing for his mental health diagnosis since 2019 and the COVID-pandemic – does not accept that he has any sustained political interest or engagement, or any motivation to be politically active if he returns to Bangladesh. It also does not accept, given the low level of his past BNP contacts and the passage of time, that he will be perceived to be a person with a pro-BNP political opinion, if he returns to Bangladesh.

8. Previously, the applicant had claims have focused on his (and [Mr A]’s) past conflict with a local AL thug, and the politically motivated false criminal charges that were brought.

   §   However, he told the Tribunal that his brother [Mr A] dealt with these matters, through lengthy court proceedings; the court dismissed the charges; and [Mr A] is now working in a [Workplace], with no further consequences. The applicant indicated that they are therefore no longer relevant to his protection claims. In the Tribunal’s view, even if the case against [Mr A] has been dismissed, this could still leave residual claims, such as any criminal charges against the applicant, his failure to appear in court and/or any unfinished business with the AL thug who initiated the charges.

   §   However, given the Tribunal’s assessment of these claims in relation to [Mr A] and its adverse view of the applicant’s credibility, it does not accept that there was any conflict between with an AL thug, or any false criminal charges, or any related adverse events.

9. The representative drew attention to recent country information indicating, he contended, that not just BNP leaders and active workers, ‘but also the supporters of the BNP face serious harm’. His submission cites a DFAT report dated 21 November 2021[6] which includes the comment: ‘A BNP supporter may attract attention from the Awami League for undertaking activities in support of the BNP or being a supporter of the BNP’. The submission had attached to it a full copy of the DFAT report, highlighting comments from human rights organisations that ‘the police were detaining opposition leaders and activists for attending indoor meetings including prayer sessions’.

   [6] DFAT: Country Information Request Report, Bangladesh – country update, 22 November 2021

10. The DFAT statement that ‘a BNP supporter may attract attention from the Awami League for […] being a supporter of the BNP’ does not address the intensity of such attention, what if any harm might result from it, or the likelihood of it amounting to ‘serious harm’ (persecution). In the Tribunal’s view, the representative’s rephrasing of this, to read ‘the supporters of the BNP face serious harm’ is misleading, if by that he is implying that any BNP supporter has a well-founded fear of persecution. Rather, the Tribunal takes the DFAT comment to mean that the AL is known to target some BNP supporters, but whether that gives rise to a real chance of serious harm amounting to persecution will depend on all the surrounding circumstances.

11. In the present case, the applicant’s limited level of past involvement with the BNP, the passage of time, his minimal ongoing interest in any political issues and the Tribunal’s view that he will not engage in political activities if he returns to Bangladesh are highly relevant. The Tribunal finds, in these circumstances, that there is no real chance of the AL in Narsingdi or elsewhere having an adverse interest in him, let alone seeking to inflict serious harm on him. Given its view that the applicant’s preference for the BNP is marginal, and does not motivate him to engage in politics, the Tribunal concludes that he will not need to modify his behaviour (such as alter or conceal any ‘true political beliefs’) so as to avoid a real chance of persecution, within the meaning of s.5J(3).

12. The applicant also claimed to be at risk of persecution on the basis of a political opinion ‘against the Awami League’. In other words, even if the Tribunal were not satisfied that he has any BNP-related political opinion that gives rise to a well-founded fear of persecution, it may find that he has a broader political opinion opposed to the ruling AL party. The Tribunal accepts as plausible that be disapproves of the AL and the current government.

13. However, there is no evidence – beyond his past links with the BNP, as discussed above – that the applicant has expressed any general anti-AL or anti-government views, or engaged in any kind of related activity. The Tribunal accepts that his departure from Bangladesh – initially to work in [Country 1], and later to seek protection and residency in Australia – may reflect his views that political, economic and social opportunities in Bangladesh, and its governance, are less favourable than abroad. That could imply some criticism of the current or past governments, but the Tribunal is not satisfied that it is a political opinion, or is perceived as such, by the Bangladesh authorities, the AL or anyone.

    Failed asylum seeker

14. The Tribunal has accepted that the Bangladesh authorities may assume, if the applicant is returned to Bangladesh, that he came to Australia to seek protection and was unsuccessful. However, it is not satisfied, taking into account the applicant’s lack of any past adverse profile and his departure from Bangladesh on a genuine passport, that the authorities have or will have any adverse interest in him, including as a failed asylum seeker. 

    Mental health

15. The Tribunal accepts that the applicant has ongoing mental health conditions, namely schizophrenia and depression. He is currently receiving medical treatment and has responded well, but his psychiatrist assesses him to be vulnerable to relapses in the event of stressors.

16. The Tribunal has received limited, and somewhat unsatisfactory evidence, as to whether the applicant has protection claims based on these mental health issues and, if so, what these claims are.

    §   The submission of 1 December 2022 included an excerpt from DFAT’s most recent country information report, relating to mental health, and a brief statement that ‘mental health facilities are restricted and inadequate in Bangladesh’. [Dr E]’s letter also implies some concern about the applicant’s mental health if he returns to Bangladesh, and whether he can receive appropriate treatment. While this implies that the applicant has broad protection claims based on his mental health, the applicant and the representative have stopped short of articulating these (in fact, as noted below, the applicant denied having any subjective fears on this basis).

    §   At hearing, the applicant confirmed that he continues to suffer mental health issues, but focused on his political claims. The representative stated that he had ‘no instructions’ in relation to mental health issues, except insofar as they relate to the question of whether the applicant’s internal relocation would be reasonable and practicable.

    §   In a post-hearing statement dated 23 December 2022, the applicant addressed mental health issues, linking them to his experiences in Bangladesh (i.e. to support the credibility of his political claims) and confirming that he had been able to present his claims and evidence.

    §   In his further statutory declaration of 20 January 2023 (in response to the Tribunal’s request for clarification on these points), he wrote that he has ‘no subjective fear of harm solely on the ground of mental health issues’. However, he also expressed concern that his mental health issues ‘will further escalate’ if he returns to Bangladesh, reiterating that this will make his relocation within Bangladesh not reasonably practicable.

17. A plain reading of the recent submissions indicates that, while the applicant expects that his mental health will deteriorate after he returns to Bangladesh, he does not consider it relevant when determining whether he faces a real chance of persecution throughout Bangladesh, or whether he faces a real risk of significant harm in his home area. Rather, it is only relevant when assessing whether – if the Tribunal were to find he faces a real risk of significant harm in his home area for other reasons – his relocation to another part of Bangladesh is, in all the circumstances, reasonably practicable.

18. Nonetheless, several questions arise as to whether there is a broader, implied claim arises on the material before the Tribunal and, if so, what this is. The Tribunal has considered the following:

    §  First, it is clear that the applicant gave the representative instructions on a range of matters, including to attend the hearing, to make written submissions and to articulate his claims on other matters. It is therefore surprising that he gave ‘no instructions’ to present general claims relating to his mental health. Given the applicant’s apparent limited knowledge of Australian migration law, it is even more surprising that he (allegedly) did give instructions for the representative to present claims on the specific issue of how his mental health would affect his prospects for internal relocation (that is, the reasonableness of such a move).

    §  Second, as the representative will be aware, the Tribunal must consider the applicant’s claims and evidence cumulatively. The applicant’s recent statement that he has no subjective fear ‘solely’ on any particular grounds leaves open the possibility that he is presenting it at least as a claim that the Tribunal must consider as part of its cumulative assessment.

    §  Third, it is striking that the representative submitted country information on mental health facilities in Bangladesh generally, including the adequacy of treatment options, yet failed to expand on its relevance to the applicant’s particular claims.

19. Given that the applicant gave instructions on other matters, the Tribunal infers from this that he and the representative opted not to articulate claims on this basis. This is puzzling. The material before the Tribunal suggests two possible factors that might lie behind this:

    (a) the stigma attached to mental health issues generally; and/or

    (b) a considered view that his mental health issues would not put him at risk of persecution throughout Bangladesh, or significant harm, at least while he is at home in Narsingdi with his family but rather, that he is at risk only if he were to live outside his home area.

20. The Tribunal is unable to speculate further or reach firm conclusions as to the applicant’s and his representative’s presentation of this case.

21. Overall, the Tribunal considers that a claim based on the applicant’s mental health issues, including his prognosis and future treatment, does arise on the material before it, including the psychiatrist’s recent letter and the country information submitted to the Tribunal. The applicant’s statement that he does not fear harm ‘solely’ on the grounds of his mental health issues also suggests that there may be at least a residual claim on this basis. In these circumstances, the Tribunal considers it appropriate, and indeed necessary, to consider whether the applicant’s mental health issues – at least when considered together with the other integers of his claims – give rise to a well-founded fear of persecution for a s.5J(1)-related reason.

22. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted. Although the applicant wrote that he does not have a subjective fear of persecution ‘solely’ on mental health grounds, the Tribunal is satisfied on the evidence as a whole that he satisfies s.5J(1)(a).

23. Section 5J(1)(b) requires that there must be a real chance the person would be persecuted, i.e. it imposes an objective standard.  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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

24. The applicant was diagnosed with depression and schizophrenia only in 2019. As noted above, the medical records do not identify any singular trigger or reasons, although they include references to the applicant’s prior work in the [Work sector] and the stress of family separation. More recent references, in particular [Dr E]’s opinions, mention the stress associated with the applicant’s uncertain migration status, and his fears relating to Bangladesh

25. The Tribunal takes the following into account when considering the applicant’s medical prognosis and future treatment needs, as a first step towards assessing whether he has a well-founded fear of persecution.

    §   The medical evidence indicates that he has responded well to medications, coupled with professional support; and that he will continue to need these.

    §   The applicant wrote that he expects his mental health to deteriorate if he returns to Bangladesh, i.e. due to stress and the associated risk of a relapse.

    ­   At hearing and in his statement of 23 December 2022, he linked this with his fear of political persecution on his return, as the mere thought of this causes him stress. However, for the reasons stated above, the Tribunal does not accept that he has any genuine fear of being targeted on political grounds.

    ­   In relation to other stress-related factors, the applicant stated at hearing that he likes Australia, has met nice people here, and feels safe. Other evidence before the Tribunal indicates that he has stable accommodation here; some emotional support from his housemate; and specialist medical support. The Tribunal accepts that the applicant would be disappointed if he were required to leave Australia, and that, after ten years’ absence from Bangladesh, his return there would be disruptive. It also accepts that his removal would therefore be stressful, and therefore be a potential trigger for a relapse.

    ­   At the same time, the applicant told the Tribunal that he mainly stays home in Australia watching television, due to the side-effects of his medication. Apart from his housemate, he appears to have minimal social contacts or support here.

    ­   Moreover, his medical records indicate that his separation from family, particularly his mother, have weighed heavily on him.

    §  [Dr E] opined that the applicant is vulnerable to relapses if subject to stress.

    ­   Writing in early December 2022, he noted that the applicant had already started to show signs of ‘severe distress’ due to his visa uncertainty. He did not state what these symptoms were, of whether they required any change to the applicant’s treatment.

    ­    [Dr E] wrote that the applicant is ‘very likely’ to suffer relapses, unless he is able to continue his treatment in Australia. There are no details of why this treatment needs to be given in Australia, i.e. whether it is based on the applicant’s personal circumstances, information about treatment options in Bangladesh, or other factors. [Dr E]’s request for the applicant to be granted permanent residency suggests that the applicant is stressed not by the uncertainty as such, but rather the prospect of a possible negative outcome.

26. Overall, the Tribunal accepts that the applicant may face some additional stresses if he is required to depart Australia, as it would thwart his ambition to obtain residency here, and cause disruption to his routine, including his contacts with a housemate and doctor. It accepts that he may be apprehensive about returning to Bangladesh, having been away so long and become accustomed to some aspects of life in Australia; although, for the reasons set out above, it does not accept that he genuinely fears persecution or significant harm in that country related to his earlier protection claims. And finally, the Tribunal notes that the applicant’s separation from his family has weighed heavily on him.

27. On the evidence as a whole, the Tribunal accepts that the applicant may be vulnerable to a relapse in the short term if he is refused a protection visa, and require additional medical support prior to any departure from Australia.

28. The representative submitted to the Tribunal an excerpt from the most recent DFAT country information report on Bangladesh, issued on 30 November 2022, addressing mental health issues in the following terms.

    2.20 Mental health facilities are inadequate to meet demand. Funding is low and there are few mental health workers. A Bangladeshi Government national survey on Mental Health was conducted in 2019. It found that about 17 per cent of survey respondents had a mental health disorder, with depression and anxiety most common. The vast majority of those respondents were not receiving treatment for their illness. More recent studies found that the prevalence of mental health disorders increased during the COVID-19 pandemic.

    2.21 According to a study published in the BJPsych International journal in August 2021, there are only 260 psychiatrists in Bangladesh. The same study found that basic psychiatric medications are generally unavailable. Sources told DFAT that there is a lack of dedicated mental health facilities. There are telephone helplines and private counselling available, but counselling services are cost-prohibitive to most people.

    2.22 Sources told DFAT that ‘stress and depression’ are seen as a ‘rich person’s problem’, and that the few services that are available are mostly targeted to these issues, where doctors have identified a market. Other mental health conditions, such as psychotic illnesses, are harder to treat in practice and there are fewer facilities and professionals available.

    2.23 There is a strong stigma associated with mental health disorders in Bangladesh that can lead to ostracism from families and communities. Stigma can be characterised by disdain or aversion of people with mental illness, or a sense of disgrace felt by the patient. Sources told DFAT that some people consider the mentally unwell as ‘mad’ or ‘cursed’.

    2.24 DFAT is aware of some reports of ‘shackling’, chaining up, locking or hiding away family members because of the shame caused by their mental illness, but is not aware of the prevalence of such practices.

1. The representative sent this text to the Tribunal, with the brief, uncontroversial observation that ‘mental health facilities are restricted and inadequate in Bangladesh’, and reiterated this point at hearing (in relation to complementary protection only). Beyond this general observation, neither he nor the applicant made any express claims that the applicant feared serious harm amounting to persecution, for instance, in the form of the denial of access to basic services or the capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist; or that the applicant faced such harm for reason of his membership of a particular social group, such as persons with mental illness.

2. The Tribunal takes into account the following, in assessing whether there is a real chance of the applicant being subject to serious harm amounting to persecution on the basis of his mental health condition.

   §   First, it is significant that the applicant and his representative had ample opportunity to present any claims to have a well-founded fear of persecution on this basis, but did so only in relation to complementary protection.

   §   Second, the applicant’s prognosis if returns to Bangladesh is uncertain. The applicant stated that he expects his mental health to deteriorate and [Dr E] alluded to his need to remain in Australia, but the Tribunal does not consider these to be reliable indicators as to how his illness may unfold in Bangladesh. The fact that he was only diagnosed with schizophrenia and depression in Australia in 2019 adds to the uncertainty as to how these might develop in a different environment, including whether he may be susceptible to a relapse.

   §   Third, the applicant plans to return to his family home in Narsingdi, where his mother and younger brother live. He stated that he is close to his mother, and less so to his brothers. This suggests that he will have at least some degree of emotional support, which could be conducive to his mental health. However, there is minimal information as to his family’s knowledge of his mental illness, or of their attitudes towards it.

   §   Fourth, there are mixed indicators as to the availability to the applicant of appropriate medical treatment for his conditions. Country information indicates the general inadequacy of mental health facilities in Bangladesh, with shortages of medication, psychiatrists and allied health services, and sometimes exorbitant costs where they are available. Nonetheless, as the Tribunal noted at hearing, and set out in its letter of 6 December 2022, the medications he currently uses are available in Bangladesh at a modest unit cost. [7]  Less certain, however, is whether the applicant will have access to a psychiatrist or other specialist to monitor his health, and/or to provide treatment in the event of a relapse or marked deterioration.

   §   Fifth, the Tribunal is mindful of the applicant’s need to meet his living expenses, including medical costs. It accepts on the available evidence that he is incapable of performing paid work, and will remain so for the foreseeable future. It takes into account the side-effects of his current medication, as well as [Dr E]’s opinion that he is unlikely to cope with the stress of job demands, presumably in any form of paid employment. The applicant has given little information about his or his family’s other financial circumstances. However, he has received a lump sum insurance pay-out in Australia, as the Tribunal noted (at hearing and in the s.424A letter) on the assurance that he was rational and capable of managing his finances. Although the applicant stated that he is only close to his mother, it is clear that he has family support and at least some contact with his brothers. His family owns  some land in Narsingdi; his older brother is working in a [Workplace] in Jamalpur; and his younger brother, currently living in the village, has previously worked in [Country 2] and the capital Dhaka. The Tribunal is satisfied on the available evidence that the applicant will have family support (accommodation and basic living expenses) in Bangladesh; that he and his family have some financial means (such as the applicant’s insurance payments, the family’s property and his brothers’ income); and that the current costs of his medications are modest. As noted above, however, questions remain as to the availability of counselling or psychiatric care, and the costs of this.

   §   Finally, the country information describes paints social stigma associated with mental health disorders in Bangladesh, including instances of social rejection and other forms of abuse and violence. Although the applicant’s records include reference to past psychotic episodes of hallucinations and paranoia, he has not claimed and there is no thing to suggest that he has conducted himself in a manner that would attract public attention, ridicule or hostility. On the contrary, the medical notes tend to focus on other symptoms such as lethargy and insomnia.

   [7] Open sources show that Desvenlafaxine (Pristiq) and Olanzapine (Zyprexa) are readily available in

3. The above factors, taken as a whole - particularly the applicant’s current stable mental health; the availability in Bangladesh of the medications he relies on, at a reasonable cost; and his likely return to a stable family environment – strongly suggest that he will be able to settle back into Bangladesh, and that the risk of him being subject to serious harm is low. However, there are several variables that remain unknown, such as the progression of his illness, his future medical treatment needs, his adaptation to conditions on return and the treatment he receives from family and the local community.

4. The Tribunal considers that the applicant may be at risk of one or more of the following: (a) relapse or marked deterioration in his mental health on his return; (b) difficulty securing specialist psychiatric help, i.e. the local presence of a suitable specialist, their availability to assist the applicant given high demand for such services; and/or the applicant being able to meet the expenses of such services or any additional medical treatments; and (c) social rejection in one or other forms, exacerbating his condition.

5. In such circumstances, the Tribunal finds that there is a small, but nonetheless real chance of the applicant facing serious harm amounting to persecution, such as denial of access to basic medical services, or significant psychological or physical harassment or ill-treatment, having regard to s.5J(4)(b) and the non-exhaustive examples set out in s.5J(5). In relation to the availability of medical treatment, the Tribunal considers that this reflects in part the resource constraints of Bangladesh’s health sector generally, but that an essential and significant reason is alaos the failure to recognise and support people with mental illness. The Tribunal is satisfied that the feared harm arises for reason of the applicant’s membership of a particular social group consisting of ‘persons in Bangladesh with severe mental illness’. Having regard to s.5L, it is satisfied that severe mental illness is a characteristic shared by all members of this group, that the applicant has this characteristic, and that it is an immutable characteristic that distinguishes the group from society.

6. The Tribunal is satisfied on the available evidence that, where this occurs in Bangladesh, it amounts to systematic and discriminatory conduct within the meaning of s.5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Bangladesh, including the applicant’s home area of Narsingdi, as required by s.5J(1)(c),

7. As there is no evidence that the applicant has a right to enter and reside in any country other than Bangladesh, ss.36(3), (4), (5) and (5A) do not apply such as to qualify s.36(2).

8. The Tribunal has considered the claims and evidence it, in their totality. While it considers this to be a borderline case, it is satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(4)(a), if he returns to Bangladesh,  now or in the reasonably foreseeable future.

   Conclusion

9. For the reasons given above, the Tribunal is satisfied that the applicant is outside his country of nationality Bangladesh and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country, and is a refugee within the meaning of s.5H(1). The Tribunal is satisfied that the first named applicant satisfies the criterion set out in s.36(2)(a).

   decision

10. The Tribunal remits the matters for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    James Silva
    Member

    ATTAcHMENT - Criteria for a protection visa

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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 policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

    Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)    that is not inconsistent with Article 7 of the Covenant; or

    (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)    that is not inconsistent with Article 7 of the Covenant; or

    (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)    for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)    for the purpose of intimidating or coercing the person or a third person; or

    (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H   Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:    For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J    Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K   Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L   Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36    Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)    the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)    the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547

Bangladesh, for a modest unit cost: