1826831 (Refugee)

1826831 (Refugee) [2024] AATA 1223 (16 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1826831
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nora Lamont
DATE:16 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 January 2024 at 9:26am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – active member of Bangladesh National Party – attacked and threatened by opposition Awami League – family land confiscated – false charges – political activism in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 66, 499
Migration Regulations 1994 (Cth), Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 January 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 28 June 2016.
The applicant appeared before the Tribunal on 16 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant appeared before a combined hearing of review of 1826831 and 1906201. 1906201 is a repeat (duplicate) application and has been dealt with separately. (SEE 1906201).
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The following documents were provided by the applicant’s representative and are before the Tribunal during its decision making: [1]
[1] AAT Folio 11760375.
·Legal submission from the Representative, dated 10 November 2023
·Applicant’s statement, dated 9 November 2023
·Applicant’s declaration, dated 10 November 2023
·Applicant’s first statutory declaration (date illegible)
·Applicant’s statutory declaration, dated 1 May 2016
·Letter from BNP Australia, dated [October] 2023
·Photographs of Applicant and BNP Australia events
·Evidence of recent [Social media] post by the Applicant with threatening comments
·BNP Australia’s public [Social media] profile, where group members are publicly visible
·[Social media] post including Applicant on [a named organisation] [Social media] page
·Photos taken by Applicant at recent refugee rights protest, where BNP Australia members attended
·Applicant’s 2013 First Information Report, with translation Country information
·DFAT Country Information Report, Bangladesh – November 2022
·Aratful Islam, ‘Bangladesh’s BNP Opposition party in dire straits’ DW.com (online, 26 November 2021)
·Anisur Rahman, ‘One dead as police, BNP supporters clash in Bangladesh ahead of party’s planned rally’, The Print (online, 7 December 2022)
·AFP, ‘One killed, hundreds arrested as Bangladesh police clamp down on opposition rally’, News18 (online, 8 December 2022)
·Human Rights Watch, ‘Bangladesh: Allow UN to Assist ‘Disappearance Inquiries’ (online, 29 August 2022)
·Vedika Sud and Yong Xiong, ‘Tens of thousands protest in Bangladesh to demand resignation of Prime Minister Sheikh Hasina’, CNN (online, 11 December 2022)
·Al Jazeera, ‘Bangladesh opposition leaders held before anti-government rally’, (online, 9 December 2022)
·Meenakshi Ganguly, ‘Bangladesh’s brutal crackdown on political opposition’, Human Rights Watch (online, 9 December 2022)
·Human Rights Watch, ‘Bangladesh: Crackdown on Political Opposition’ (online, 10 October 2022)
·Hannah Ellis-Peterson and Shaikh Azizur Rahman, ‘They beat me with sticks’: Bangladesh opposition reels under crackdown as thousands arrested’, The Guardian (online, 22 January 2023)
·Andrew Brown, ‘Protesters call for permanent visas for refugees’, Bunbury Mail (online, 6 March 2023)
·Mubashar Hasan, ‘Bangladesh Government Doubles Down on Pressure Campaign Against Opposition’, The Diplomat (online, 30 October 2023)
·Human Rights Watch, ‘Bangladesh: Violence erupts amid demands for fair election’, (online, 1 November 2023) 21 22
·VOA News, ‘Report: Bangladesh Arrests 8,000 opposition activists’, (online, 5 November 2023)
·OMCT, ‘Bangladesh: The government must stop killing protestors and silencing dissent’, (online, 6 November 2023)
·Text messages from the Representative and [Mr A]. [2]
[2] AAT Folio Doc Id 11787196
The applicant was initially identified by the department as a fast-track application and referred to IAA for review processing on 16 January 2017. The IAA affirmed this decision on 27 June 2017. The applicant sought an application to the Federal Circuit Court of the IAA decision [in] July 2017 and the court decided [in] September 2018 that the applicant is not a fast-track applicant and he can apply for review of this decision at the Tribunal. Pursuant to the court order the applicant was not correctly notified as required by s66 of the Migration Act.
The applicant has provided his birth certificate to the Department and stated he is a national of Bangladesh. The delegate had no concerns about the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Bangladesh as his country of nationality and his receiving country.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Bangladesh, there is a real risk that he will suffer significant harm.
There are no non-disclosure certificates on the applicant’s file.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country. Based on the information before it, the Tribunal is satisfied that the applicant does not have a right to enter or reside in a third country.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old Muslim male born in [named] Village, Jessore Bangladesh. He has [brothers] and [sisters]. While in Bangladesh, he worked in the family business selling [products] from 1997 to 2008.
The applicant’s claims are summarised by the delegate and are as follows: [3]
[3] [File number]
·He fled Bangladesh in 2008 because he was violently attacked on the basis of his political views. He was a member of the Bangladesh National Party (BNP) at a local branch in Jessore. He attended party meetings and took part in any procession of the party. On many occasions he accompanied [the] local chairman, to attend functions. He was popular in the party and considered a future leader. He worked with [an official] of the [BNP].
·The main opposition party at the time was the Awami League (AL). Around January 2008 four or five members of the AL attacked him. The culprits were wearing masks and they attacked him after he closed his shop at the market. They told him this was because he was smart and a member of the BNP. They broke his mobile phone, hit and stabbed him as well as threatening him with a pistol. He tried to run away, and they chased him; however, when some motorcycles passed by they escaped.
·He recognised two voices, namely [Mr B] and [Mr C], as he had heard them a public speaking and his friend had had a fight with them.
·He was hospitalised for three or four days. Meanwhile the attacks went to his father’s house and asked for a ransom otherwise they would kill him. His father did not pay a ransom.
·He did not report the incident to the police as the AL was the ruling party so he feared the police would not help him and that doing this would lead to further abuse.
·He did not return home from hospital; instead, he went to stay with his grandmother in [another location]. He then travelled to Dhaka and left Bangladesh using a false passport. The attackers continued to ask for a ransom from his father after the attack.
·He stayed in [Country 1] illegally for four years. He was then told by a smuggler that there was an opportunity to come to Australia and that he should tell the Australian government that he had financial problems. This is why he first told immigration that his reason for requesting protection in Australia was a financial one.
·In 2013 he was charged with threatening and beating with intention to kill. This charge is false and malicious. The charge sheet is dated [March] 2013, after he arrived in Australia. The accuser is named [deleted], and he does not know him nor has he heard of him. This issue has not been heard by any court and he has not been found guilty of criminal conduct. He believes he was charged so that he could be harassed by the police if he ever returns to Bangladesh.
·Since he arrived in Australia his family has been subjected to mistreatment by AL members. They have a plot of land in [location] and are going through the process of registering his mother as the owner. AL members are trying to stop this from happening so that they can claim the land. In 2015 his father had a number of original title papers for this land stolen from him. He believes AL hired people to do this. His father is also an active member of the BNP.
·His brother had false charges against him, and he spent several nights in jail as a result of this.
The delegate refused the application stating they were not satisfied that the applicant was assaulted, that the family property was confiscated, that the applicant has a charge for assault against him and that his brother also had false charges against him. However, the delegate did accept the applicant was a supporter of the BNP and that he was involved in a physical altercation in 2008.
Tribunal Hearing
The applicant spoke about how when he completed school he worked with his father in his [business]. He said his father was a member of the Bangladesh Nationalist Party (BNP) since as long as he could remember. In 1997 the BNP called the applicant in to join with them in meetings. He became very popular and the people around him told him that he could become a leader. He would often attend functions with [the] local chairman of the Jessore BNP and he was also working with [a named] leader; he would help him at rallies and around the council areas from 1997-2008.
The Tribunal asked him what values the BNP hold that he finds appealing. He said looking after the roads, students and living in peace when they were in power.
The Tribunal asked the applicant about the attack he suffered. He said he was living at home at the time and working at the shop with his father. It was about 10:30 pm and he was closing the shop for the night. He was going home on his motorbike. There was a field next to the shop, no residences around the field, just trees. There was a bridge over a water channel and there was a tree branch over the bridge and five people attacked him. They took his phone and broke it. They stabbed him and hit him. When asked if they said anything to him, he stated that one said don’t kill him just hurt him so he can’t attend BNP meetings. When asked how he got away from them he said another two people on motorbikes came by and he was able to run into the trees. The other two men on motorbikes took him to the hospital. He spent 3 or 4 days in the hospital.
The Tribunal asked if he knew his attackers. He said two of them, one was [Mr B] and the other was [Mr C], they were Awami League supporters, and he knew them from around. A few days before the attack, a friend of his had a quarrel with them. He didn’t go to the police because the police are aligned with the Awami League. The applicant said they issued further threats and they spoke to his father telling him that he should be prohibited from joining the BNP and telling his father to give them 60,000 Taka or they would kill him. His father gave them 50,000.
After he left the hospital, he went to his grandparent’s home for 3 or 4 days before going to Dhaka. His father organised an agent to help him get out of the country. He left the country on a false passport and stayed illegally in [Country 1] for four years before arriving in Australia. In 2013 he was charged with threatening and beating a man with the intention to kill. However, the applicant had already arrived in Australia and had spent the four years prior in [Country 1] so he believes that the charges were brought against him by the Awami League, so if he was to be returned to Bangladesh, they would be able to harass him.
In the applicant’s submission he states that a plot of land owned by his now deceased father was confiscated by the Awami league and the title papers stolen. The applicant’s brother has also had false charges brought against him and was in jail for several days.
New Claims
The applicant has raised new claims since the Department decision. He has been active in Australia as a BNP supporter attending meetings and protests. He has been active on his [Social media] page expressing his strong views.
In relation to the new claims, the applicant provided a letter from [Mr A], [an official] of Bangladesh Nationalist Party (BNP) Australia, attesting to his activities with the party. The Tribunal attempted to call [Mr A] during the hearing but was unable to contact him. The applicant’s representative did, however, submit text messages that she had sent to him during the hearing to which he later responded that he was available. However, the Tribunal hearing had already concluded.
The applicant has been threatened on social media for his advocating for the release of Mirza Alamgir the leader of the BNP who was arrested and remains in jail. [4]
Country Information
[4] Bangladesh opposition leader Alamgir detained after antigovernment rally | Protests News | Al Jazeera
Current country information portrays a political system based on patronage and dominated by the Awami League.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
3.70 Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.
Awami League (AL)
3.71 The Awami League (AL) was established in 1949, with Mujibur Rahman, the father of current Prime Minister Sheikh Hasina, playing a key role. It has been in power since 2009.
3.72 At the top of the party is the Central Committee, known as the Presidium. There are 15 members of this committee, including the Prime Minister. The Presidium is part of an 81-person Central Working Party and is supported by an advisory committee of technical advisers. Each district and upazila has its own committee and people join political auxiliary organisations and rise up through the ranks.
3.73 The AL has made efforts in recent years to increase social inclusion, including through the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they had experienced less discrimination and violence under the AL in its recent terms (compared to earlier periods) and less discrimination and violence than when the (now opposition) Bangladeshi Nationalist Party (BNP) was in power.
3.74 Internal party violence has been reported in the AL, including in the lead-up to the 2018 election, and during sub-national elections and student organisation elections. This violence is usually about disputes over candidate pre-selection or internal disputes between business people. While sometimes described as ‘factional’ violence, the ‘factions’ may in fact be personality or patronage-based rather than ideologically based. The party has strong disciplinary policies to deal with rogue candidates that can be activated in such circumstances to expel members from the party.
3.75 The party engages in recruitment activities throughout the year. Recruitment activities often have a festive atmosphere. DFAT considers it unlikely that people would be coerced into membership; there are many benefits to membership, such as political patronage, that mean volunteers are likely to join the party willingly.
3.76 Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence.
Bangladeshi Nationalist Party (BNP)
3.77 The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
3.78 The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
3.79 The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
3.80 BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.
3.81 The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October
2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
3.82 There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges. [5]
Findings
[5] DFAT Country Information Report Bangladesh November 22.

The Tribunal accepts that the applicant is a member of the BNP and that he was active with the party in Bangladesh, as well as in Australia. It is clear from the applicant’s evidence and the country information that the Awami League perpetrate violence on their political rivals and that it is the BNP members who are their targets. DFAT reports that:
The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity. [6]
[6] Ibid.
Further country information also supports the applicant’s assertion that he was attacked and that violence by Awami League members and their associates occurs frequently.
DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges. [7]
[7] Ibid.
The Tribunal is satisfied that the applicant was not only active in the BNP, but that he was physically attacked, his parents land was confiscated, and the applicant fled from Bangladesh in 2008. The applicant has been consistent in his evidence and arguments for many years and despite having stated upon arrival that he came for economic reasons as his smuggler told him to, he has only enhanced his claims as evidenced in his continued involvement with the BNP in Australia. The Tribunal is satisfied that the applicants claims are true as told by the applicant and he is a witness of credibility.
Conclusion
In considering what was discussed above, the Tribunal is satisfied that effective protection will not be available to the applicant in Bangladesh against the harm he fears in his home area.
The Tribunal is also satisfied that the harm the applicant fears relates to all areas of the country and that relocation within Bangladesh will not offer the applicant protection from the harm he is likely to face on return to his home area.
The Tribunal finds that the applicant has a real chance of serious harm arising from his political opinion and membership of the BNP. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
For the reasons above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criteria set out in s36(2)(a) of the Migration Act.
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1223

16 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice