1826834 (Refugee)

[2023] AATA 3793

1826834 (Refugee) [2023] AATA 3793 (6 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBERS:  1826834

2202332

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Tamara Hamilton-Noy

DATE:6 September 2023

PLACE OF DECISION:  Melbourne

DECISION:

The Tribunal:

a.remits matter 1826834 (Safe Haven Enterprise visa application made on 19 August 2016) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

b.sets aside the decision in matter 2202332 to refuse the applicant a Safe Haven Enterprise visa application made on 17 September 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 06 September 2023 at 8:47am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – imputed political opinion – particular social group – asylum seeker from a western country – allegations of attempted murder – attacks by Awami League supporters – fear of killing – false legal proceedings – Rapid Action Battalion attacks – political violence – fear of torture – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

Background

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

3. The applicant applied for a Safe Haven Enterprise visa on 19 August 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 17 September 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see MICMSMA v CBW20 [2021] FCAFC 63). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.

4. The first application for a Safe Haven Enterprise visa on 19 August 2016 was refused by the delegate on 8 February 2017.  An application for review of that decision was made to this Tribunal on 13 September 2018.

5. The second visa application was refused by a delegate on 10 February 2022. An application for review of that decision was made to this Tribunal on 21 February 2022. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

   Claims and Evidence

   Evidence before the Department

6. In his first SHEV application, the applicant claimed to have left Bangladesh because he was afraid of being killed by members of the Awami League (AL) and of being arrested, imprisoned and killed by the police, because of false accusations made against him.  The applicant clamed to have been accused by members of AL of being a worker with Jubo Dal, and of having been with two other men at a procession of AL supporters at [School 1] on [a day in] July 2012 and of attempting to shoot the [Official 1] of AL.  The applicant claimed that members of AL had made threats to kill him, that the police had brought false charges of keeping firearms against him and that there was a warrant for his arrest.

7. The applicant claimed in the SHEV application that, in his entry interview (in which he had claimed he left Bangladesh because people made a court case against him), he had not been made aware that the information he provided would be used for the purposes of assessing his claims for protection and was only a summary of his claims.  The applicant claimed that he had had no identity documents when he left Bangladesh and that his sister had sent an English translation of his birth certificate when he was in [a named] Detention Centre.  The applicant’s date of birth had been translated incorrectly, but he believes the birth certificate sent to him is a genuine document and correctly shows his date of birth as [date].  He claimed that his sister also sent him documents from the court in [District 1].

8. The applicant provided the following details in the SHEV application about the claimed events of [the day in] July 2012:

   During the afternoon on [the day in] July 2012 a political meeting was held in a field at the school. It is a sporting field used by both the Primary School and the High School.  The Primary School and High School are next to each other.  Classes were not held on that day because of the political meeting.  I was not at school and I did not attend the meeting.  It was a meeting of supporters of the Awami League. 

   I was sitting outside the school talking with two friends, [Friend A] and [Friend B].  There was a lot of noise and commotion inside the school and people began to spill out on the road.  I heard a lot of noise, but I did not hear a gun shot.  People were shouting and fighting.  Some people were running.  I told my friends that we should leave.  Two men emptied the bags they were carrying on to the road.  It was a few metres from us.  I saw a gun, some big knives and some hockey sticks.  We ran with the rest of the crowd. People chased us.  We went in different directions.  There were ten or twelve men chasing me.  They were shouting ‘catch him, catch him, catch him’.  Some shouted that I had the gun.  Some were shouting ‘kill him’.

   I ran to save my life.  I ran to my home.  They chased me there, shouting that I had guns and they would kill me.  I told my mother that people wanted to kill me.  I left my home straightaway and went into hiding at a friend’s house in [Town 1].  I stayed there for one day.  When I spoke to my mother on the telephone she told me that people were coming to my home and asking where I was.  They said that I was involved in a shooting and that there were charges against me and my friends.  Police had come to my home that night.  My mother said that I needed to stay away and to stay safe.

   The following day I left [Town 1] and went to Cox’s Bazaar in the Chittagong District.  I was living on the streets and on the beach when a kind-hearted person took me into his home.  I called my mother and asked if I could return home.  She told me that I should not come back as it was not safe.  She said that the people looking for me were officials from the Awami League.  They were abusive to my mother.  They accused me of being a worker with Jubo Dal and a supporter of the Bangladesh Nationalist Party.  She told me that my brother [named] had been beaten up twice at our home by these people in front of the police, who did nothing to stop them.  On the next occasion that I spoke to my mother she told me that the police had come again looking for me and said that they would arrest my father and then he would tell them where I was.  My father said to the police that he had done nothing wrong and that his son had done nothing wrong.  The police said that they would keep coming until they found me and that if they found me that they would kill me using cross-fire and that would be the answer to the matter.

   The name of the person who sheltered me in Cox’s Bazaar was [Mr A].  I told him about what had happened and asked him what I could do.  I stayed with him for ten or twelve days.  He arranged for me to get on a [ship].  The [ship] took me to [Country 1].  It took three days.  I did not have to pay anything.  I stayed overnight in [Country 1] and then went by boat to [Country 2].  It took a few hours.  I was in [Country 2] for twenty days.  I told a man from [another country] who I met in [Country 2] about what had happened to me.  He arranged for me to go by boat from [Country 2] to Indonesia.  It took [time].  I was in Indonesia for ten to fifteen days.  People who had been on the boat arranged for me to travel to Australia.  I was on the boat for six days.  We were picked up by the Australian Navy near Christmas Island and taken to [a named] Detention Centre.  I did not have any documents.

   I have read the statements from the police in Bangladesh which have been sent to me.  I see that witnesses against me are members of the Awami League.  The statements in the police document are not true.  I was not at the public meeting in the field at [School 1].  I was not a worker with Jubo Dal.  My friend [Friend A] did not have a gun and did not intend or attempt to school [Mr B], [Official 1] of the Awami League.  He did not give any gun to me.  I did not attempt to fire a shot at [Mr B variant] and I did not give any gun to [Friend B].  These allegations are completely false.  I understand that [Friend B] has been arrested and imprisoned.

9. The applicant claimed in the written SHEV application that, if he returns to Bangladesh, the police or Rapid Action Battalion (RAB) will kill him.  The RAB supports the AL and the government and acts against people who oppose the government. The applicant believes he will be killed because the police think he is opposed to the government and AL, believe he is a worker with Jubo Dal and a supporter of the BNP and that he tried to shoot an important person in AL with a gun.  He would be arrested and handed over to the RAB, would be mistreated and would be shot.  The authorities would not protect him but will arrest him and will torture, mistreat and kill him. 

10. The applicant claimed in the written SHEV application that he had fled to Cox’s Bazaar, Chittagong, but could not stay there or return home.  He fears that if he returns to Bangladesh, he will be subject to cruel, inhuman and degrading treatment, will be arrested, imprisoned, suffer cruel treatment, and be physically assaulted and tortured.  He fears harm from the authorities because of the perception he is against the Bangladesh government and because he has sought asylum in a Western country.

11. A delegate of the Department found that the applicant had given an inconsistent account of the political meeting that he claimed to have been outside, to have given implausible information about escaping a group chasing him and to have given information inconsistent with the claims he had previously raised in his entry interview.  The documents provided to the delegate did not alleviate the concerns the delegate had about the applicant’s evidence.  The delegate did not accept the applicant had been charged with any offences, that his family had been approached or that the applicant is a BNP supporter.  The delegate did not accept that the applicant was at risk of serious harm or significant harm because of his political opinion or as an individual who had sought asylum in a western country or as an individual who had departed Bangladesh illegally.  A copy of the delegate’s decision was provided by the applicant to the Tribunal. 

12. On 30 June 2017 the Independent Assessment Authority affirmed the decision not to grant the applicant a SHEV.

13. The applicant made a second application for a SHEV on 17 September 2019, in which he raised the same claims for protection as in the first SHEV application.  The delegate did not accept the applicant had been involved in an incident in July 2012,  that he received false weapons charges, that he was a perceived supporter of BNP who was falsely alleged to shoot [Official 1] of AL, that he was in hiding or was falsely accused of weapons possession, that the applicant or his family would be targeted, or that the applicant is a BNP supporter or drew adverse attention from AL or the Bangladeshi authorities. The delegate did not accept the applicant was at risk of serious harm or significant harm in Bangladesh. A copy of the delegate’s decision was provided by the applicant to the Tribunal. 

    Evidence before the Tribunal

14. The applicant appeared before the Tribunal on 19 September 2022 to give evidence and present arguments.  A migration agent from the applicant’s representative’s office attended the hearing and the Tribunal was assisted during the hearing by an interpreter in the Bengali and English languages.

15. A resumed hearing was conducted on 9 February 2023 on which date the same migration agent attended with the applicant and the Tribunal was assisted during the hearing by an interpreter in the Bengali and English languages.  During the hearing the Tribunal took evidence from a witness, and the details of this evidence are set out in some detail below.

16. The Tribunal also had regard to statements, submissions, map details of the applicant’s local area, warrant and charge documents and a statement by the applicant’s claimed lawyer in Bangladesh in making a decision in this matter, all of which were provided by the applicant’s representative to the Tribunal.

    Criteria for a protection visa

17. 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.

18. 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.

19. 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).

20. 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.

21. 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

22. 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.

    Assessment, Reasons and Findings

23. The issue in this case is whether the applicant meets any of the alternate criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is owed protection as a ‘refugee’ or under the complementary protection criterion, or whether he is a family member of a person owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality

24. The applicant has consistently claimed to be a citizen of Bangladesh.  He participated in the Tribunal hearing with the assistance of an interpreter in the Bengali and English languages.  The Tribunal accepts the applicant is a citizen of Bangladesh and has assessed his claims against Bangladesh as his country of nationality.

    The applicant’s background

25. The applicant has claimed in his written SHEV applications and in his oral evidence to the Tribunal at hearing that he is a Bengali Sunni Muslim from [Town 1], [District 1].  He gave evidence to the Tribunal that he had lived in [District 1], [distance] from Dhaka, with his parents, two brothers and [sisters].  He gave evidence that [one] brother is in [Country 3], [another] brother is living near his parents, and his sisters are all married and are living, variously, in Dhaka, [and in other locations].  The applicant gave evidence that he maintains phone contact with his parents, that they no longer work and that he and [one] brother provide some financial support to them.

26. The applicant gave evidence at the hearing that he had completed [grade] and then had undertaken some [specified] work with [clients] in his village.  He gave evidence that the identification documents he had held in Bangladesh included a school certificate, chairman’s certificate and birth certificate, and that he had not had a passport issued.  He had not travelled out of Bangladesh before he left in 2012 and had not lived in any other areas of Bangladesh.

27. The applicant has consistently claimed to have left Bangladesh illegally through Cox’s Bazaar.  He gave evidence at the hearing that his travel was organised by an individual he had met when he arrived in Chittagong and that he spent several months in detention after arriving in Australia.  He told the Tribunal that, since being released from detention, he has been residing with a friend and has held a range of employment positions.

1. The Tribunal accepted the evidence given by the applicant about his background, illegal departure from Bangladesh and about his circumstances since arriving in Australia. 

   Claims for protection

2. The Tribunal is mindful that it must adopt a reasonable approach in making its findings with respect to credibility, based on relevant and material facts.  Where ‘the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1]  The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]

   [1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 196.

   [2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 204.

3. The Tribunal is also mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal hearing and the use of interpreters.  The Tribunal acknowledges there may be memory issues from the lapse of time and cultural issues which may affect how an applicant answers questions before the Tribunal.  The Tribunal has had regard to its Guidelines on the Assessment of Credibility in the conduct of the hearing and in assessing the totality of the applicant’s evidence before it.  The Tribunal has also had regard to the significant period of time that has elapsed since the applicant was first asked about his reasons for having left Bangladesh, in addition to the above matters.

4. Having weighed up all of the information provided by the applicant, the Tribunal shares some of the concerns of the delegate about aspects of the applicant’s claims for protection, for the following reasons.

5. Firstly, the applicant was not credible about the timeline of his studies in Bangladesh and his educational status prior to leaving Bangladesh, which is relevant to the time at which the claimed incident occurred.  The applicant first described to the Tribunal that he had finished school (in [grade]) at [age] years of age and then, when the Tribunal queried why he had been in [that grade] at such a young age, corrected his evidence and stated that he had been [several years older].  He told the Tribunal that he had completed school some [number] years before he left Bangladesh.  In contrast, later in the hearing, he told the Tribunal that he was still going to school when the incident occurred in 2012.  When the Tribunal observed that he had earlier given evidence of having left school [number] years before leaving Bangladesh, he then stated he was in [grade] and had an ‘education gap’ of two years.  When the Tribunal again queried the differences in his evidence, he then stated that actually he couldn’t remember exactly what the situation had been. 

6. Secondly, other aspects of the applicant’s evidence to the Tribunal at hearing were vague and lacking in credibility.  For example, in contrast to his written claims that he was accused of shooting at the [Official 1] of AL, the applicant claimed at hearing that he doesn’t know about this, that he didn’t see the [Official 1] at the meeting and that he can’t remember the name of the [Official 1], although perhaps it is [name variant].  Further, the applicant’s claims to have fled to Chittagong immediately after the claimed incident because charges had been laid were, in the Tribunal’s view, implausible on the basis that charges would not have been laid within several hours of such an incident. 

7. Thirdly, and of most concern to the Tribunal, the applicant has also given inconsistent evidence about who had been conducting the meeting at the school on the day of the incident, in some claims raising that it was an AL meeting and in others a BNP meeting.  For example, in his Department interview in 2022, the applicant claimed that he had been outside a BNP meeting and that he could hear the BNP chanting; this claim was consistent with a media report provided by the applicant to the Department which stated that there had been a BNP meeting at the time of the claimed incident.  In contrast, the applicant gave evidence to the Tribunal at the hearing that he had been outside an AL meeting.  When the discrepancies in his evidence were noted by the Tribunal, the applicant confirmed his evidence that he had been outside an AL meeting.  The Tribunal noted that the applicant had provided the Department a media report outlining the claimed incident and describing the applicant as a BNP leader and the AL as having attacked a BNP meeting.  Given the clear inconsistencies between this report and the applicant’s oral evidence to the Tribunal at hearing, the Tribunal did not accept the media report as a genuine document. 

8. The Tribunal considered the applicant’s evidence to be vague and inconsistent.  The Tribunal did not consider that the level of inconsistency in the applicant’s evidence could reasonably be explained by the passage of time, or nervousness or for any other reason. These inconsistencies cause doubt for the Tribunal about the overall credibility of the applicant and about his claimed reasons for having left Bangladesh. 

9. However, the Tribunal took evidence from a witness at the resumed hearing who claims to be a lawyer involved in a case involving fabricated charges against the applicant in Bangladesh.  The Tribunal found the evidence given by the witness to be persuasive, on the basis that the witness was able to provide detailed and plausible evidence about the structure of legal education in Bangladesh, the requirements for admission to practice, the structure of the court system, work the lawyer claims to have undertaken on behalf of the applicant and the reasons for the particular provisions the applicant has been charged under.  The Tribunal, in weighing up all of the evidence before it including the concerns set out above, has ultimately placed weight on the evidence given by the witness. The Tribunal notes that the account described by the witness is broadly consistent with the applicant’s brief claims raised in his entry interview with the Department and is consistent with media reports on the prevalence of false claims made by police relating to alleged violent incidents.[3]

   [3] VOA, ‘Bangladesh police accused of harassment with fake cases’, M Hussain, 13 March 2019 at Al Jazeera, ‘Bangladesh opposition says 4,000 charged in gov’t crackdown’, 11 October 2022 at

10. Therefore, while having some doubts about the claimed event, the Tribunal has not been able to make a clear finding that it did not occur.  On this basis, the Tribunal has proceeded to assess the applicant’s claims on the basis that he may have been present at an incident between two groups where a gun was dropped, where there was chaos between opposing groups, and where a perception formed that the applicant was involved in the chaos after he picked up a gun that had been dropped.  The Tribunal accepts as plausible that the applicant would have been known to some of those present at the incident given it was his local area, outside his former high school, where it is reasonable that he would have been known to other people at the event.  The Tribunal accepts as plausible that, if the claimed events happened, the applicant travelled to Cox’s Bazaar out of fear of returning home and made travel arrangements to depart for Australia.  Also on the basis of the Tribunal’s perception of the witness as credible overall, the Tribunal has proceeded on the basis that the applicant’s charge sheet may set out incorrect details about his perceived political affiliations and details of his alleged involvement in the incident in question. 

11. The Tribunal finds that, if he returns to Bangladesh now or in the reasonably foreseeable future, the applicant would return to reside in [District 1], on the basis that his parents and a brother continue to reside in the area and it is the only area of Bangladesh that he has longstanding ties to.  For the reasons set out above, the Tribunal has assessed the applicant’s risk upon return upon the basis that he may have been incorrectly attributed with having a gun at an incident at his local high school in 2012 and that there has been ongoing involvement via his lawyer by way of a case in the criminal justice system.

12. By way of background, the Tribunal notes that following the splitting East and West Pakistan into Bangladesh and Pakistan in 1971. The AL governed the country for several years on a platform of Bengali nationalism.  After the President was killed in a military coup in 1975, decades of military rule followed until democracy was restored in the early 1990s.  The BNP won the 1991 election and power alternated between the BNP and AL between 1991 and 2006, with Bangladeshi politics being dominated by political violence and rivalry.  In December 2008 the AL won the election, led by current Prime Minster Hasina, and has been in power ever since.[4]

    [4] DFAT Country Information Report Bangladesh, 30 November 2022, 2.1 – 2.3.

13. Security threats are largely centred around politically motivated violence, including violent clashes between rival groups, particularly ahead of elections and at political rallies.  Extremist groups plan and execute violence against a wide range of government and civilian targets and authorities have taken a hard line in dealing with such attacks, leading to allegations by human rights groups of high numbers of extrajudicial killings.  Between January 2013 and mid-2016, domestic militants conducted a wave of attacks across Bangladesh, most notably the July 2016 Holey Bakery attack where dozens of people were taken hostage in a Dhaka bakery and in which 20 hostages and two police officers were killed.  No attacks of the same scale have been reported since, however, DFAT states that, while the incidence of terrorist attacks has decreased in recent years, the risk of violence remains. Murder, assault and sexual assault are common crimes, and extortion, theft and violent robbery are described by DFAT as significant threats on a day-to-day basis, and theft and sometimes violent robberies are also a day-to-day risk.[5]

    [5] DFAT Country Information Report Bangladesh, 30 November 2022, 2.33 – 2.36.

14. International and local rights groups agree that enforced and involuntary disappearances occur and are particularly targeted towards individuals associated with opposition parties, but also may target journalists or government critics, and participants of street protests.  Police officers, often from the RAB, are accused of conducting disappearances and, where prisoners are not able to contact their families and friends, they are assumed to be disappeared.  Arrests may relate to a range of matters, but local sources claim that the Digital Security Act and ICT legislation are commonly used.[6]

    [6] DFAT Country Information Report, Bangladesh, 30 November 2022, 4.5.

15. The International Federation for Human Rights claims that law enforcement agents in Bangladesh often deny the arrest or detention of a disappeared person, and family and friends sometimes only learn the fate of a person when the matter is heard in court.  Friends and family are sometimes threatened with violence if they attempt to prevent an arrest or make enquiries about the fate of a disappeared person.[7]

    [7] DFAT Country Information Report, Bangladesh, 30 November 2022, 4.6.

16. In 2020, the UK Home Office reported that security forces, particularly the police and RAB, commit abuses with impunity, including torture, arbitrary arrests, incommunicado detention, enforced disappearances and extra-judicial killings.  Senior members, leaders and active members of opposition parties and those who actively oppose, or are perceived to actively oppose, the ruling party are particularly vulnerable.  Torture and ill-treatment is endemic and there is reportedly an assumption that, if a person is arrested, they will face torture.  Corruption and bribes are prevalent throughout the police and court system and the independence of the judiciary is compromised due to political interference.[8]  The UK Home Office information is consistent with information reported by DFAT, which states that torture is unlawful but is claimed by human rights groups to be common, particularly by the police, intelligence officers and RAB.  Torture is reported to be used to extract confessions and to be most commonly used when a suspect is on remand.[9]

    [8] UK Home Office, Country Policy and Information Note, Bangladesh: Actors of protection, 2020, 2.3.4 – 2.3.12.

    [9] DFAT Country Information Report, Bangladesh, 30 November 2022, 4.12 – 4.13.

17. In March 2023, the US Department of State reported that Bangladesh continued to experience significant human rights issues during 2022, which had included unlawful or arbitrary killings including extrajudicial killings, forced disappearances, torture and cruel, inhuman or degrading treatment or punishment by the government, harsh and life-threatening prison conditions, arbitrary arrests and detentions and serious problems with the independence of the judiciary.  Numerous reports stated that the government and its agents had committed arbitrary or unlawful killings and the government had taken few measures to identify, investigate, prosecute and punish officials and security force members who committed human rights abuses or engaged in corruption. Law enforcement raids occurred throughout 2022 and suspicious deaths had occurred during some raids.  Security force members frequently denied their role in such deaths and claimed that accomplices of a suspect had fired on police and they had returned fire. In contrast, human rights organisations claimed that many of these crossfire incidents constituted extrajudicial killings, and claimed that in some cases suspects were detained, interrogated and tortured, and were brought back to the scene of the original arrest and executed.[10]

    [10] US Department of State, 2022 Country Reports on Human Rights Practices, Bangladesh, 20 March 2023 at

18. The US Department of State further noted that human rights groups and media had reported during 2022 on disappearances and kidnappings, allegedly committed by security services.  The government made limited efforts to prevent, investigate or punish such acts.  In January 2022, Human Rights Watch released a statement condemning the government’s dismissal of criticism in response to allegations of rampant enforced disappearances, while Freedom House noted a range of human rights abuses by law enforcement agencies had continued unabated.  Despite constitutional prohibitions against torture, local and international human rights organisations and media had reported that security forces employed torture and cruel, inhuman or degrading treatment or punishment.  Human rights organisations alleged that torture had occurred during remand and that victims who filed cases under the Torture and Custodial (Prevention) Act were harassed and threatened.  In June 2022, a joint statement by several human rights organisations condemned acts of torture performed by police and claimed that torture, both physical and mental, had become an institutionalised practice in Bangladesh.[11]

    [11] US Department of State, 2022 Country Reports on Human Rights Practices, Bangladesh, 20 March 2023 at

19. The Bangladesh Police is the country’s primary law enforcement agency.  Professionalism varies across the force and while senior officers are relatively well trained and well paid, those in the lower ranks are poorly trained, poorly paid and poorly equipped.  Low incomes encourage corruption and solicitation of bribes is common, sometimes to influence outcomes of investigations and sometimes for cause an investigation to occur, or not occur.   Police systems are highly bureaucratic, which can lead to slow or ineffective responses to crime.  While the national system of policing can be effective, this is not always the case.  Most Bangladeshis do not trust the police, given their reputation for corruption and violence.  GAN Integrity, a US-based consultancy organisation, has noted that businesses ranked the Bangladesh police as one of the least reliable in the world.[12]

    [12] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.1 – 5.5.

20. The judiciary is based on the British system and comprises a Supreme Court and subordinate courts. Challenges for the judicial system include widespread corruption, political bias, and a large backlog of cases with some taking over 10 years to resolve. DFAT states that cases can proceed in absentia, for example, where a defendant is making a protection claim in Australia, although DFAT understands that such cases only occur in exceptional cases involving large amounts of money or serious charges.  DFAT assesses it is possible for a person facing such charges to flee Bangladesh but that this is less likely for a person facing serious charges or who is of interest for their political activity, as immigration authorities would likely to be alerted to such cases.[13]

    [13] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.6 – 5.10.

21. The Overseas Employment and Migrants Act makes it an offence to depart from Bangladesh other than in accordance with procedures laid down in the Act.  The Act is designed to prevent human trafficking rather than prosecute illegal exit or failed asylum applications, and even these provisions are rarely enforced.  DFAT states that it is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted and DFAT is unaware of any such cases having occurred.[14] 

    [14] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.21.

22. DFAT states that it is possible that an individual involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh, although these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of fraudulent passport holders being detained or questioned.  Tens of thousands of Bangladeshis leave and enter the country for employment each year and the government does not have the capacity or the interest to check on each person.  For individuals with a particular political profile, their entry could be noted, but this is not the case for the vast majority of returnees.  DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.  Authorities take an interest in high-profile returnees, but the vast majority of returning Bangladeshis would not attract such attention.[15]  In contrast to this information, various media sources in 2020 reported that a number of individuals had been quarantined, arrested under the Criminal Procedure Code for ‘tarnishing the image of the government’, and in some circumstances had been denied bail.[16]

    [15] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.24 – 5.26.

    [16] The Daily Star, ‘”Tarnishing the image of the government”: 186 returnees denied bail’, 23 August 2020; New Age, ’83 returnees from Vietnam, Qatar sent to jail’, 1 September 2020. 

23. The above country information indicates that an individual may be questioned upon return to Bangladesh.  In circumstances where the applicant may have false charges pending, and where he would be returning involuntarily and had departed illegally from Bangladesh, the Tribunal finds that the likelihood of the applicant being detained and questioned is heightened.  Mistreatment of detainees, including the use of torture and ill-treatment, is described as institutionalised and highly likely once an individual is taken into custody.  The Tribunal finds that the chance is more than remote that the applicant would be questioned and detained given his particular profile, and that, during any period of detention, there is a real chance he would face torture and physical ill-treatment during his detention.  The Tribunal is satisfied that the harm feared by the applicant includes a threat to the applicant’s life and liberty, significant physical harassment and significant physical ill-treatment and that the harm feared amounts to serious harm within the meaning of s 5J(5). Given the range of harms feared, the Tribunal accepts the harm is systematic and discriminatory.

1. The Tribunal finds that the harm feared by the applicant would for the combined reasons of his membership of the particular social group of persons incorrectly charged with a criminal offence and his imputed political opinion. 

2. The Tribunal finds that the applicant fears harm from the Bangladeshi authorities, including the police, security forces and RAB.  Given this, and given the lack of independence of the judiciary, the Tribunal finds that the applicant could not access effective state protection from the harm feared.  Nor could he relocate to avoid the harm.

3. The Tribunal therefore finds that the applicant has a well-founded fear of persecution if he returns to Bangladesh now or in the reasonably foreseeable future. 

4. There is no evidence that the applicant has a right to enter and reside in any country other than Bangladesh and the Tribunal finds that the applicant is not prevented from being owed protection by operation of s 36(3).

5. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

   The Tribunal:

   c.remits matter 1826834 (Safe Haven Enterprise visa application made on 19 August 2016) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

   d.sets aside the decision in matter 2202332 to refuse the applicant a Safe Haven Enterprise visa application made on 17 September 2020 and substitutes it with a decision that the visa application was not valid.

   Tamara Hamilton-Noy
   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.

   …