1827364 (Refugee)

1827364 (Refugee) [2023] AATA 873 (10 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Carina Ford (MARN: 9802862)
CASE NUMBERS: 1827364, 1905305 and 2204238

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Paul Windsor
DATE:10 January 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 10 January 2023 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party member – particular social group – failed asylum seeker – extortion – kidnapping – fear of killing – false legal cases – state protection – illegal departure – arrest by Rapid Action Battalion – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 57, 58, 65, 91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 DECISIONS AND REASONS
APPLICATIONS FOR REVIEW

This statement of decisions and reasons is regarding three applications for review of two decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 17 August 2016 (the first protection visa decision); and a decision made by a delegate of the Minister for Home Affairs on 15 March 2022 (the second protection visa decision) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Procedural history
There is an extensive procedural history to these cases now before the Tribunal, as follows.
According to Departmental records, the applicant, who claims to be a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012, without a valid visa, on a boat from Indonesia codenamed [name]. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 30 January 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Temporary Protection (Subclass 785) visa (TPV) on 2 July 2015. That application was not subject to the s 91K bar, and it was a valid application. The Minister then purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 9 June 2020 which was also valid.
The first protection visa application (TPV) of 2 July 2015 was refused by the delegate on 17 August 2016. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made to the Tribunal on 18 September 2018 (AAT Case Number 1827364). Following re-notification by the Department on 14 February 2019 of the decision of 17 August 2016, a further (repeat) application for review of that decision was made to the Tribunal on 6 March 2019 (AAT Case Number 1905305). The applicant provided the Tribunal with a copy of the delegate’s decision record.
The second protection visa application (SHEV) of 9 June 2020 was refused by the delegate on 15 March 2022. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 23 March 2022 (AAT Case Number 2204238). The applicant also provided the Tribunal with a copy of the delegate’s decision record in relation to this decision.
The applicant appeared before the Tribunal in a joint hearing on 24 November 2022 where he gave evidence and presented arguments regarding the issues that arise in all three review applications (covering the two protection visa refusal decisions of 17 August 2016 and 15 March 2022). The applicant was advised in the hearing invitation that the hearings for all three review applications would be combined, and this was explained at hearing: he did not indicate any issues with this approach (nor did his representative – who is the same for all three review applications). The combined Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the reviews. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
To meet the criteria for a TPV and for a SHEV, applicants must engage Australia’s protection obligations as follows.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on Bangladesh was issued on 30 November 2022. At the time of the hearing, the current report was dated 22 August 2019. Having reviewed the updated report,[1] the Tribunal is satisfied that there is no material difference in the content of the reports relevant to the issues under consideration in this review.
CONSIDERATION OF Claims and evidence
[1] DFAT Country Information Report, Bangladesh, 30 November 2022, sections 5.20-5.26, 5.27-5.38.
Claims
In his TPV application made on 2 July 2015 the applicant indicated he was born on [DOB 1] in [Village 1] in Sharsha Upazilla, Jessore District of Khulna Division, Bangladesh. He indicated he is ethnic ‘Bangla’, speaks Bengali, is a Muslim and has never married or been in a de facto relationship. He included with his application a copy of a birth certificate, issued in English on 1 November 2012 and indicating his birth was registered [in] 2007.[2]
[2] See Departmental file [number].
The applicant’s claims, as set out in his TPV application, are summarised as follows.[3]
·He is a supporter and member of the Bangladesh Nationalist Party (BNP), which is now in opposition.
·He was falsely accused by the ruling Awami League (AL) of handling weapons.
·His market stall was broken up and destroyed by the police (sic). They were asking for money all the time.
·He was captured and questioned by the army’s Rapid Action Battalion (RAB). The Police were also looking for him.
·He tried to hide out with relatives in [a named town] (sic), near the border with India, but police found out and threatened his relatives.
·He did not seek help in Bangladesh as it is the government that is trying to harm him. Bangladesh is a small country and there is nowhere he could go where the government would not find him.
·He is afraid he will be imprisoned or killed because of his political beliefs if he returns to Bangladesh.
[3] Ibid.
The applicant subsequently submitted a statutory declaration of 28 August 2015 setting out his claims in greater detail.[4] Relevant additional matters raised in this statutory declaration are summarised as follows:
[4] Ibid.
·The police are looking for him because of false charges brought by the AL. He is a supporter and member of the BNP and had been a member of the Bangladesh National Youth Party (BNYG), which is a youth wing of the BNP. He joined the party in around 2007. His uncle is also a member of the party.
·There were some minor problems after he joined in 2007. He was harassed by AL people who asked why he joined the BNP rather than the AL.
·He had a [shop] in [Market 1] in Jessore. In 2009 his market stall was broken up by hit men who work for the AL. They used to come at night, at least twice a week, seeking to extort money from him and others. They never extorted money from AL people. He went to the police afterwards. They came the day after the attack to look at his stall but took no action. The police and these men work together as the police support the political party that is in power.
·About a month later the police came to his parents’ house saying they had a warrant in his name and were looking for him because of transactions involving weapons, saying he smuggles and sells weapons. He believes they did this because he made the complaint. The police used to come to his parents’ house but he did not speak with them himself.
·He moved around between his relative’s houses to try to be safe. In 2010 he tried to go to [Town 1], near the Indian border. The police looked for him there and threatened his relatives. They told his mother they would kill him if they found him.
·Towards the end of 2010, he was caught by men from the army’s RAB when he was closing his shop and going home. They held a pistol to his head and made him get in their car. He escaped out the other door while they were talking outside the car. As it was about 10 pm it was dark so he ran away so they could not find him. He went to his uncle’s house in the village and stayed there overnight. He kept moving around but was fearful they would arrest him.
·Bangladesh is a small place and the AL is very powerful and has informants everywhere in the country. He could not be safe from them anywhere in Bangladesh.
·In around May 2011, men from the AL beat up his father when asking his father where he was. Both parents decided then that he should leave Bangladesh and started getting the money so he could do that.
·Finally in 2012 he was able to leave.
·His mother says the police are still asking about him at home and at the market. She told him they came most recently last month and she told them she does not know where he has gone.
·He believes the false weapons charges were made by the AL because of his political involvement in the BNP. As long as the AL is in charge he will be at risk. He fears if he returns he will be charged, imprisoned and could even be killed. They have killed BNP members. He heard a BNP member from his village was killed. He was at home and then his body was found the next morning on the road in front of his house.
At or around the time of an interview with the delegate held on 8 September 2015 the applicant provided uncertified copies of the following three documents in support of his claimed identity:[5]
·A further copy of the claimed birth certificate, issued in English on 1 November 2012 and indicating his birth was registered [in] 2007, which was submitted previously with his TPV application.
·A copy of a letter dated 30 November 2012 purportedly from his Headmaster at [a named] High School in Sharsha, Jessore District Bangladesh.
·A copy of his purported National Identity Card.
[5] Ibid
All three documents indicated his date of birth is [DOB 1].
The applicant subsequently submitted a further statutory declaration of 25 May 2016 addressing issues regarding his identity raised by the delegate.[6] Relevant additional matters raised in this statutory declaration are summarised as follows:
·His birthdate has been mistakenly recorded in his immigration records as [another date]. This is a mistake, his date of birth is [DOB 1].
·He has already submitted the following original documents as evidence of his identity: Birth Certificate; National Identity Card; and a letter from the Headmaster of his High School. Additionally, he is submitting a scanned copy of his Bengali and National Identity cards.
·He did not have identity documents with him when he arrived in Australia and asked his brother in Bangladesh to email copies to him. He believes they are not bogus documents. As it was requested the documents be in English his brother got translated versions in English of his Birth Certificate and National Identity Card. He thought these were official government translations.
·He, along with all those from his village who were over 18 years, were issued a National Identity Card in around 2007 by the then caretaker government, which they then used to vote at the election in 2008.
[6] Ibid.
The SHEV application of 9 June 2020 was in similar terms to the previous TPV application.[7] In a pre-interview submission of 11 August 2021,[8] the representative summarised the applicant’s claims from his statutory declaration of 28 August 2015. It was asserted that the applicant fears persecution should he return to Bangladesh because of his membership of particular social groups comprising ‘members of the BNP’ and ‘Failed Asylum Seeker’; and because of his political opinion as a member of the BNP which means he is in opposition to the AL, which puts him at risk of persecution.
[7] See Departmental file [number].
[8] Ibid.
The applicant attended an interview with the delegate on 15 October 2021. In a post-interview submission of 22 October 2021,[9] the representative raised concerns that the applicant was denied procedural fairness because a request to provide a response in writing to issues put to the applicant pursuant to s 58 of the Act was denied, as was a request for a ‘natural justice break’ to seek instructions from/provide advice to the applicant.
[9] Ibid.
The representative also attached a copy of a letter signed ‘13/12/12’, purportedly by the [Official 1] of the [Village 2] Union Branch of the ‘Bangladesh National Young Party’ (BNYG), certifying that the applicant is ‘the Joint Secretary of [Village 2] Union National Young Party’. The representative asserted that this had previously been sent to the Department but the delegate indicated it had never been received.
The submission also provides further comment regarding the applicant’s identity; time he spent in hiding in Bangladesh; his membership with the BNP; and ‘the issues and inconsistencies’ raised during the SHEV interview. Additionally, concerns were raised regarding whether a written invitation to comment on certain issues (his role with the BNP; when elections were held; and who he voted for) complied with the requirements of s 57 of the Act as the invitation did not explain how the information was relevant to the consideration of the application.
The representative provided a pre-hearing submission dated 17 November 2022.[10] The submission challenges findings by the delegate stemming from concerns regarding perceived inconsistencies in when the applicant became an active member of the BNP; and concerns regarding the genuineness of the letter of support purportedly provided by the Bangladesh National Young Party. Updated country information was also provided regarding the political situation in Bangladesh. In relation to complementary protection obligations, the delegate cites country information regarding severe flooding in in the northeast of Bangladesh (Sylhet division) and the impact of the COVID-19 pandemic and the war in Ukraine on the capacity of aid agencies to respond.
Evidence from the hearing
[10] See the Tribunal files.
At the start of the hearing the Tribunal noted the extensive procedural history to these cases which has resulted in there being three review applications concerning decisions to refuse to grant two different protection visa applications. The Tribunal noted that as the two relevant decisions to refuse to grant protection visas relate to an application for a TPV made on 2 July 2015 and an application for a SHEV made on 9 June 2020, the same law (post 16 December 2014) applies in both cases. The Tribunal also commented that while there is a copy of a decision record dated 23 November 2016 from the Immigration Assessment Authority (IAA) on file [number], as this relates to an invalid legal process the Tribunal will not be having regard to the IAA decision. The applicant and his representative indicated they had no comments they wished to make or concerns with the proposed approach involving a single hearing and decision record covering all three review applications.

The applicant confirmed he was born in [Village 1] in the Jessore district of Bangladesh. He said at the time he was living in [Village 1] approximately 400-450 people lived there. He indicated his parents and [specified family members] are currently living in Bangladesh. He said his parents are still living in [Village 1] while [one sibling], who has married, has moved to another village about 30 kilometres away. He indicated that his [other family members] all live in Jessore district but said he was not sure precisely where they are living at the moment.
When asked, the applicant indicated his father is elderly now and no longer works. He said his father was a farmer, growing [specified products 1] on approximately 7 bigha (1.77 hectares[11]) of land. Although he indicated he is in contact with his father, he said he did not know if anyone was working the land now, commenting he did not think it necessary but adding that his father may have given the land to someone to cultivate. He said he does not keep in touch with his [siblings] as they are all married now and live separately but commented that his mother tells him they are okay.
[11] 1 hectare equals 3.954 Bigha, Convert 1 Hectare to Bigha - 1 ha to bigha - hectare to bigha (squareyards.com)
When asked about the uncle referred to in his applications, the applicant commented that his uncle [named] lives in [Village 3], a village neighbouring his family’s village. When asked what work his uncle used to do, the applicant replied, ‘politics’. He said his uncle did not have any other job. When asked, he said he does not know what his uncle is doing now as they have no contact. When asked what his uncle’s job was in politics, the applicant said he was the ‘head’ BNP member for that village. When asked if that was a paid role the applicant said he did not know.
The applicant indicated that while he lived in [Village 1], his ‘shop’ was in the [Market 1] market at [Village 2 variant], a different village located about 10 kilometres from [Village 1].
The applicant said he studied until [grade]. When queried that his application indicates that he withdrew from school in December 2013, which would make him around [age] years of age at the time, the applicant replied, ‘yes, something like that’. When asked, he indicated that after he left school he engaged in politics, sometimes helped his father with farming, and used to work at the shop in [Village 2 variant].
The Tribunal queried the applicant that in his application he indicated he worked at a small [shop], which sold [products 2], from January 2004 until January 2012. The Tribunal commented that is a period of about eight years and asked if that sounds right. The applicant replied, ‘yes, something like that’. He indicated he started the shop because when he left school he was unemployed. He indicated that, by having the shop, he could earn more money and live in town. When queried whether he lived in [Village 2 variant] or with his parents in [Village 1], the applicant clarified that he just went to the shop to work each day and at night returned to his parents’ home in [Village 1].
The applicant indicated that in Australia he has been working in a [product] shop for the last four years and previously worked at a [business].
When asked to confirm the advice in his application that he departed Bangladesh [in] February 2012, the applicant indicated it was around that time but said he can’t remember the exact date. He indicated he flew from Dhaka airport to [Country 1] and then on to [Country 2]. When asked, he said ‘they’ gave him a passport but commented that he did not read it because it was inside a folded white document. The Tribunal asked the applicant if he had to show a passport and have it stamped to be able to leave Bangladesh. Initially he said he showed them a white paper. When queried whether he had a passport or just a piece of paper he said he had a passport. When asked if he looked at it, he said he did not look at because he gave them money and was told to show the document to immigration. When asked, he indicated the passport had his name and photograph in it. He said when he got to [Country 2] he gave it to an ‘agent’ there. When asked how he crossed into [Country 3], the applicant said he went there by boat from [Country 2]. He said an agent he met in Dhaka arranged for the passport he used to travel to [Country 2]. He indicated he was in Dhaka for 9 days before he flew out but it took 1-2 months to arrange his travel. He said he paid the agent, who arranged everything, approximately 300,000 taka which was given to him by his father.
The applicant commented that he started his involvement with the BNP in 2007 and properly joined them in 2009. When asked, he indicated he got involved with the BNP in 2007 because he thought they were good people, their behaviour was good and he liked the party. He indicated that a person can’t join the party straight away as it takes 1-2 years to get information about them. The Tribunal queried the applicant that in his statutory declaration of 28 August 2015 he stated he joined the BNP in 2007, after which he was harassed by AL people who asked why he joined the BNP rather than the AL. The applicant said he used to spend time with BNP people so they thought he had joined the BNP. The Tribunal asked if there were a lot of BNP supporters in his area. He said there were more AL supporters.
The Tribunal asked the applicant if he became a member of the BNP or some wing of the BNP. The applicant replied that he was the [Official 2] of the youth wing of the BNP. He said it is called ‘jubodal’. The Tribunal queried the applicant that the supporting document he provided refers to the Bangladesh National Young Party. He commented that ‘jubodal’ means ‘young’. The Tribal observed that the letter doesn’t say much, noting that it is addressed to ‘whom it may concern’ and the subject and date sections are blank. It certifies that he is the ‘Joint Secretary of [Village 2] Union National Young Party’. The applicant commented that that would be the [Official 2]. When asked why the letter states ‘Joint Secretary’ if the position is [Official 2], the applicant said he doesn’t know about that. He said he told them he was the [Official 2] and doesn’t know why they mentioned joint-secretary. The Tribunal observed that the letter doesn’t actually state the name of the person who signed it and asked the applicant if he knows who it is from. He said he can’t remember. The Tribunal observed that there is a signature and the date 13/12/12 handwritten below the signature and it states the person is the [Official 1] [Village 2] Union National Young Party Sharsha, Jessore. The applicant said that would be [Village 2 variant], the area where his shop was situated. The Tribunal asked the applicant who was the [Official 1] of the [Village 2 variant] Union National Young Party in December 2012. The applicant said he can’t remember because it was a long time ago. The Tribunal asked whether this is the same branch of the party as the one he says he was [Official 2] of. He indicated it was the same branch. The Tribunal commented that the letter was not submitted to the Department until October 2021 and asked why he did not submit it earlier if it was produced in December 2012. He said he organised it when he was in Bangladesh but did not have it with him when he arrived in Australia, adding that he did not have any documents at that time. When asked, he said he got the letter by calling his [brother] who sent it to him.
The Tribunal observed that the decision records by the two different delegates (copies of both of which he provided to the Tribunal) refer to the issue of his role within the BNP. The Tribunal commented that the first delegate’s decision record notes that the record of the Entry Interview held with him on 31 October 2012, shortly after he arrived in Australia, indicates that he stated he was [Official 2] of the BNP youth wing in his area - ‘JUWADAL’, but he made no mention of that in his TPV application made in July 2015, nor in his statutory declaration of 28 August 2015, nor in his SHEV application made in June 2020. The Tribunal observed that the decision record of the TPV delegate indicates that at interview when asked about his role with the BNP, he stated he was a member of the youth party and, when asked if he sought to obtain a position of higher authority, indicated that although he was keen, he ran out of time to achieve this ambition. When asked who the head of the youth wing was, he indicated his name was ‘[Leader A]’. The delegate indicated that when this inconsistency was pointed out to him and he was asked why he had indicated at the TPV interview that he only held the position of a general member rather than [Official 2], he stated he had forgotten this at the TPV interview and he was actually a very important member and was like [an Official 2]. The Tribunal asked the applicant if he could explain how he could forget that he was the [Official 2] of the youth wing of the BNP in his local area and not include this in his application, in the statutory declaration that set out his claims in more detail, and had forgotten to mention it at his TPV interview until it was raised with him. The applicant commented that in the beginning he told them that he was the [Official 2] of the BNP youth wing. When asked why he had not raised this subsequently, the applicant said he forgot. The Tribunal observed that the delegate indicates in the decision record that they confirmed with him twice that his position was that of ordinary member, and when asked if he had sought a position of higher authority, he replied that he ran out of time to achieve this ambition. The applicant said he can’t remember about this.
The Tribunal asked the applicant how he became the [Official 2] of the BNP Young Party in his local area. He replied that to do politics you need to get a role or position. The Tribunal suggested that someone doesn’t just become a local [Official 2] and asked how he got that role. The applicant said he started doing politics in 2007 and was involved through 2009 then stayed in 2010 and 2011 and in that way he became the [Official 2]. The Tribunal asked if he was elected to the role. He said there was no election, everyone just decided who should be the [Official 2]. He said when they would meet there would be 10-50 people present and they decided that he would be the [Official 2]. When asked what it was about him that made these people decide he should be the [Official 2], the applicant said he used to prepare properly, organise those people and do the meetings and gatherings with them.
The Tribunal asked the applicant what activities he did when he first started with the party in 2007. He said he used to participate in different party meetings and gatherings, spend time with them and help them. When asked, he said they met weekly. When asked what they talked about, he said they talked about the social welfare of their area, betterment of the people of the area, education, ‘that type of thing’. When asked what other activities they undertook apart from party meetings, the applicant said he used to organise people for party gatherings and try to solve problems people had. When asked, he said if people were sick he would go and help them and if there was a conflict between people he would help to resolve the conflict. When asked if he had a different role as [Official 2], the applicant said as [Official 2] he would sit with other people, discuss different issues, how they could do better things and show people an action plan to do that. When asked to give an example of an issue he was looking at and had prepared an action plan for, the applicant said if a particular job needs to be done for the village he would look at how to do that job properly and how to solve problems to fulfil that objective. When asked for a specific example, the applicant said he would talk with people about any problem in their rural roads and how to solve those problems. When asked what the proposed solution was, the applicant said if done properly there would be no problems in the future, ‘that type of thing’.
When asked about the difference in the role of the [Official 2] and the role of the [Official 1], the applicant said the role of the village [Official 2] is to ensure everyone receives the same type of treatment and there will be betterment for everyone while the [Official 1’s] role is to help people in all aspects and in ensuring a better future.
The Tribunal asked the applicant to tell it about the ideology, or principles aims and objectives of the BNP. He said the objective of the BNP is to run the country properly, take over the country and do all infrastructure works properly. When asked why it is called the Bangladesh ‘Nationalist’ party, the applicant said there are two parties, one called the Bangladesh National Party and one called the Awami League. The Tribunal asked how the aims, ideology and objectives of the two parties differ. The applicant said the AL want to do things their own way whereas the BNP want to do better for the people. When asked about the BNP’s views on how to run the economy and whether they support a free market or something more like socialism with government control of the economy, the applicant said they support national development by working together with everyone. When asked about the BNP’s views on the place of Islam, and whether the BNP supports a special place for Islam, the applicant said there will be no obligation or restriction to practice religious beliefs. When asked if the BNP believes Islam should be given greater importance than other religions, the applicant commented ‘nothing like that, every religion is equal’. When asked about relations with India, the applicant said there was a good relationship with India at that time.
The Tribunal observed that it had read an academic paper on political parties in Bangladesh which set out the key differences between the BNP and the AL.[12] The Tribunal commented that the paper indicates the BNP supports a free market economy and ‘preserving the age old human values of the Bangladeshi people through the teaching of Islam, the religion of the majority of Bangladeshi people and other religions’; the BNP has repudiated secularism (having removed references to secularism from the constitution); and that a confrontational approach to India-Bangladesh relations has long been BNP’s principal point of contestation (difference) with the AL. In contrast, the AL is described as being committed to promoting secular and social democratic values. The Tribunal summarised that it seems the AL supports secularism and socialism, freedom of all religions and non-communal politics; while the BNP supports a free market economy and preserving the teachings of Islam, religion of the majority, as well as other religions.
[12] R. Jahan, ‘CPD-CMI Working Paper Series: Political Parties in Bangladesh’, Centre for Policy Dialogue (CPD) and Chr. Michelsen Institute (CMI), August 2014, p.11-13, political-parties-inbangladesh.pdf
The Tribunal commented that it had shared this information because it indicates there are some significant differences in outlook between the AL and the BNP and the Tribunal was looking for him to give it a sense of this but is not sure he has, adding that he has spoken in a quite general way. The Tribunal invited the applicant to make further comments if he would like to. The applicant said when he was involved with the BNP in Bangladesh they all believed that all religions are equal and that no priority should be given to Islam.
The Tribunal asked the applicant if he ever voted while he was in Bangladesh. He said he did, just once. When asked, he said it was the 2006 election but he can’t remember the exact date. After reflecting, he said he is not sure if it was 2006 or 2010, stating most probably it was in 2010. When asked, he said he voted for Ali Kader, who was the BNP candidate. The Tribunal commented that this is also an issue raised in the TPV delegate’s decision record, which notes country information indicates Ali Kader (a BNP MP from Jessore) was one of 13 MPs who left the BNP in 2006 to form the Liberal Democratic Party in 2006, and that DFAT’s 2014 Country Information Report indicates that the last two elections were held in 2008 (when the AL came to power) and 2014. The applicant said he was not aware that Ali Kader had left the BNP but is aware that he has died.
The Tribunal asked the applicant about the references in his statutory declaration of 28 August 2015 indicating that he experienced problems with what were described as AL ‘hit men’. The applicant commented that he did BNP politics and spent time with BNP people, which AL people did not like. The Tribunal asked what problems he had. The applicant said they followed his political activities and told him not to do activities on behalf of BNP. The Tribunal asked if they did other things. He said that was the main thing. When asked if he kept doing political activities for the BNP, he said he did. When asked how the AL people responded, he said their behaviour was very aggressive and they were not happy. When asked what they did, the applicant said he started avoiding them and kept doing his activities.
The Tribunal asked the applicant if he had any problems at his shop. He said they damaged it. When asked if he had any other problems he said they tried to hit him but he escaped. He said he could not remember which year his shop was damaged. The Tribunal asked the applicant to tell it what happened when people came and damaged his shop. He said they asked him about his political activities, used some bad words and then one of them started damaging the store. When asked, he said he did not try to stop them as they were very aggressive and would have killed him if he had tried to stop them. When asked, he said they damaged the shelves where he put the [products] and all the [products] were damaged.
The Tribunal asked the applicant what he did after that. He said he went to his home, stayed there for 1-2 days and then went to a nearby town. When asked if he reported the matter to the police, the applicant said he did, one day after the incident happened, but the police did not help because the people involved are with the government. When asked if the police came to look at the damage, the applicant replied, ‘no’, but added he did not see whether they came to look or not. When asked if he had previously had problems with these people at the store, the applicant said he had. He said other BNP people used to come to his shop and he would talk with them about political activities and AL men did not like that and used to tell him to stop BNP political activities. When asked if they just used to ask him to stop his BNP political activities, the applicant replied, ‘yes’.
The Tribunal commented that it is focusing on this issue is because at paragraphs 4 and 5 of his statutory declaration of 28 August 2015 he indicated that he was being targeted for extortion by AL hit men who would come at night asking for money. He said, ‘yes, they demanded money’. The Tribunal asked the applicant how often people came demanding money. He said it was two times in total and the last time they damaged the shop when he was not prepared to give them money. The Tribunal observed that he stated in his statutory declaration that they targeted him because he was BNP not AL and that they used to come at least twice a week asking for money, rather than two times in total. The applicant said, ‘maybe’, commenting that ‘he forgot that thing’.
The Tribunal also observed that in paragraph 6 he stated that the police came the day after the attack to take a look at his stall, whereas he indicated at the hearing that he did not know if they came to look at it or not. The applicant commented that he was not present but maybe someone else was present. He added that he gave that information a long ago and can’t remember those things.

The applicant indicated that after the incident where his shop was damaged he stopped working there, totally. The Tribunal asked him if he had further problems with the police. He indicated he did, commenting that the police and the AL were looking for him. When asked why, he said because the AL told the police about him. He said he can’t remember the exact date when police first came looking for him. He said he left and went to another area but police went to his home. The Tribunal asked how long this was after his store was attacked. The applicant said police went to his parents’ home around 3-4 days later. When asked what they wanted/said to his parents, the applicant commented that they were looking for him and his parents told them he was not there now. The Tribunal asked the applicant if the police told his parents why they were looking for him. He said they did not mention the exact reason.
The Tribunal observed that at paragraph 7 of his statutory declaration he stated that about a month after the AL attacked his market stall, the police were looking for him. He stated they came to his parents’ home and said they had a warrant in his name. He stated that the police told his parents they were looking for him because of some transactions with weapons, and were saying that he sells weapons and smuggles weapons. The applicant commented, ‘yeah, that type of thing happened’. The Tribunal queried that he did not mention that to the Tribunal just now - he said the police came 3-4 days later and that they did not tell his parents what they were looking for. The applicant said he can’t remember this thing.
The Tribunal commented that the applicant has indicated (in his statutory declaration) that these events occurred sometime in 2009 and the police had a warrant and were looking for him because they suspected him of smuggling and selling weapons. They Tribunal asked the applicant how he was able to avoid being arrested by police between that time in 2009 and when he left Bangladesh in February 2012. The applicant said he went to the nearby city of [Town 1]. The Tribunal asked how long he spent there. The applicant said he can’t remember exactly how many days but he stayed there some days. The Tribunal observed that it is asking about a period of over two years, covering at least all of 2010 and 2011. The applicant said he spent 1-2 years staying sometimes in relatives homes and sometimes staying in different places.
The Tribunal asked the applicant why he only stayed in [Town 1] for a few days. The applicant commented it was not a few days and, while he can’t remember exactly how long, it was a long period of time. He added he was mentally stressed because of the bad treatment he received for political reasons. The Tribunal queried that just before he indicated he spent ‘some days’ in [Town 1] rather than a long period and asked why he left [Town 1]. The applicant again said he spent a long period of time there. He said [Town 1] is a town on the border with India and he wanted to go to India but could not go there. He said he also stayed with relatives in Jessore and stayed in different locations in [Town 1], but it is not possible for him to remember the exact details.
The Tribunal asked the applicant who he stayed with in [Town 1]. He said he stayed at some relative’s home. When queried if the police looked for him in [Town 1], the applicant said they went to his parent’s home looking for him. He said his parents told the police he was not there. The Tribunal asked the applicant if the police had any idea he was in [Town 1]. He commented that some people might inform the police because he was involved in politics but the police could not get him over there. When asked why that was the case, the applicant said he used to hide himself all the time. The Tribunal queried the applicant that in paragraph 8 of his statutory declaration he stated he was moving around, and he tried to go to [Town 1] in 2010, but even there the police were looking for him and threatened his relatives. He said he used to hide in different places from his relative’s location and police could not find him there. He said they used to ask his relatives whether he is there or not.
The Tribunal asked the applicant if anything else happened before he left Bangladesh. The applicant said, while they were trying to find him, he somehow managed to leave Bangladesh. The Tribunal asked if ‘they’ ever captured him. The applicant indicated they did not. The Tribunal observed that in his statutory declaration he stated that, towards the end of 2010, some men from the Rapid Action Battalion tried to capture him in Jessore. The applicant indicated that is correct. When asked why he didn’t mention it when the Tribunal asked him just now if they ever captured him, the applicant said that was not police it was RAB.
The Tribunal asked the applicant to tell it what happened. He said he and a friend were returning home from a nearby market when 3-4 RAB personnel caught them and put them in their car. He said he asked one of them why they caught him, as he did not do anything. When asked, he said it was the [Village 3] market, which is 25 minutes’ walk from his parents’ home. He said he went there to shop and spend some time and was returning home. When asked what the RAB people questioned him about, the applicant said they did not question him they held him around the waist and forced him into their car. He said they left but there was an informer in the car and he asked the informer why he had been caught as he did not do anything. He said the informer told him he was not the person they were looking for and he could leave now. The Tribunal queried whether it was a case of mistaken identity. The applicant said he doesn’t know about that. He added that maybe that person did him some favour and that is why he released him. The Tribunal asked what he meant by an informer. He said he saw this person sitting in the car, the three RAB people caught him and led him to the car where he told the person in the car he did not do anything and that person said okay you are not ‘that person’ and you can leave now.
The Tribunal commented that his oral account is very different to what is in paragraph 9 of his statutory declaration where he stated he was closing the shop and going home, which sounds like he was talking about his shop. He stated there was a car in front of him and two men came and caught him. They questioned him, asked ‘what do you do’ and then held a pistol to his head and told him to get in the car. The two men put him in the car and he escaped from the other door when the men were talking outside the car. It was about 10 pm so it was dark and he ran away so they could not find him. From there he went straight to his uncle’s house in the village and stayed there overnight. The Tribunal stressed the differences in his two accounts. The applicant said it was night-time so it was dark and it was impossible to say how many people there were. He said they put him in the car and he ran away using the door on the other side. He added that it happened 10 years ago so he can’t remember exactly.
The Tribunal asked the applicant how he was supporting himself while he was moving around trying to avoid the police. He said his relatives provided food for him and sometimes he borrowed money.
The Tribunal commented that the applicant hasn’t spoken much about his uncle and asked what his uncle’s role was in the BNP. The applicant said his uncle was a member. The Tribunal observed that when it asked the applicant about his uncle earlier in the hearing he indicated his uncle didn’t do any work, just politics, and said he was a member of the BNP and was ‘the head’ of his village. The applicant said that in Bengali ‘member’ is the head of that village. The Tribunal observed that in the decision record by the SHEV delegate it indicates that when he was asked at interview about his uncle’s involvement with the BNP he said he was only a member of the BNP. The applicant commented that he is saying the same thing, that his uncle was a member of the BNP. He said he does not know what his uncle is doing nowadays. The Tribunal asked the applicant if he spent much time with his uncle when he was doing BNP activities. He said he did, for political gatherings and meetings.
The Tribunal asked the applicant if there were other people in his village or neighbouring villages who were attacked in the same way by AL hit men. The applicant said it is the usual thing that happens over there, adding that some are abducted, some are killed and he gets this information from the news.
The Tribunal asked the applicant about the reference in his statutory declaration of August 2015 to him knowing the police are still looking for him because his mother told him that the police came and asked about him most recently last month (that is, in July 2015). The Tribunal asked the applicant why he thought the police would still be calling more than three years after he had left the country. The applicant said the AL is still in power and they thought he might be living with his parents.
The Tribunal commented that, in her recent submission, the applicant’s representative had made reference to flooding in Bangladesh as well as the impact of COVID-19 in Bangladesh. The Tribunal observed that the country information provided indicated the flooding is in the northeast of the country where Sylhet has been badly affected, but his district of Jessore is in the southwest so would not have suffered the same impact from the flooding as areas in the northeast of the country. The Tribunal asked the applicant if he wished to comment on what problems he would face from flooding and COVID-19 if he had to return to Bangladesh. The applicant said he is not thinking about returning to Bangladesh or what type of problems he would have to face over there. He indicated he did not have any comment he wished to make either in relation to flooding or the impact of COVID-19.
The Tribunal indicated that it has concerns about the document provided purportedly from the Bangladesh National Young Party, noting it does not have any security features and does not state who it is from. The Tribunal observed that country information from DFAT indicates that DFAT assesses that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread in Bangladesh. DFAT comments that passport fraud is a particularly common type of fraud, given many Bangladeshis travel or are trafficked abroad in order to get work, and fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh. DFAT also comments that political party documents may be subject to fraud, as they do not contain the security features of other documents.[13] The Tribunal commented that, while this does not mean that all documents or any particular document provided has been fraudulently produced, it does mean that the Tribunal has to be cautious about the weight it gives to particular documents. The applicant commented that he is not in Bangladesh so does not know what is possible over there but whatever happened to him he provided documents supporting that.
[13] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.39-5.44.
The Tribunal also discussed with the applicant DFAT country information regarding the treatment of people returning to Bangladesh, including failed asylum seeks from a western country.[14] The Tribunal observed that DFAT indicates that the Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act and that Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. The Tribunal commented that it seems in his case it is difficult to make a judgement about whether he would be seen to have departed illegally given he departed using a Bangladeshi passport and was allowed to depart Bangladesh. The applicant acknowledged that he used a passport to leave Bangladesh. The Tribunal commented that what is unknown is whether that passport was in his real name or someone else’s name. He said he can’t tell the Tribunal that – only that he showed the passport to immigration when he left Bangladesh, and they let him go.
[14] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.24-5.30.
The Tribunal commented that, in any event, the DFAT country information indicates that Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees before authorising their return and issuing travel documents. DFAT comments that it has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
DFAT notes that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. DFAT states it is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted. DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.
The Tribunal also commented that, while DFAT do not say it specifically in this report, the Tribunal is aware that in previous reports DFAT has indicated that while there are penalties for departing illegally, they are not aware of any cases where those penalties have been applied.[15]
[15] DFAT Country Information Report, Bangladesh, 5 July 2016, section 5.20.
The Tribunal commented that it has shared this information with the applicant because it seems most unlikely that, even if he did depart in breach of the Emigration Ordinance Act, he would suffer anything amounting to serious harm simply as a consequence of having departed Bangladesh illegally and being returned as a failed asylum seeking after spending a considerable period of time living in a western country. The applicant commented that he knows the situation he was in when he left and knows that, if he returns home, whether he will be killed or not or whether he will have to go to jail or not.
The representative indicated that she would make further comments in a written post-hearing submission but made some brief remarks before the conclusion of the hearing. In relation to the Tribunal’s questions regarding what solutions the applicant had proposed to problems identified by the BNP, the represented wished that it be noted ‘for the record’ that these matters occurred 10-13 years ago and asserted it would be unreasonable to infer anything adverse from lack of detail in the applicant’s evidence requiring what problems were identified and solutions proposed. She submitted that the applicant’s inability to provide exact details is due to the passage of time since the events in question occurred.
In relation to the issue of whether he joined the BNP in 2007 or 2009, the representative commented that there seems to be a misunderstanding regarding what is meant by ‘joined’. She commented that the applicant began his involvement with the BNP in 2007 and his transition to being a member occurred in 2009.
In relation to the country information in her submission regarding floods in Bangladesh, the representative commented that the submission being made on his behalf was that relocation within Bangladesh would be hindered by events that have happened all around the country not just his hometown, which is relevant to his evidence that he has moved around Bangladesh.
Post-hearing submission
The representative provided a written post-hearing submission dated 1 December 2022.[16] The submission acknowledged various inconsistencies in the applicant’s evidence. The representative asserts that it would be an error for the Tribunal to attribute inordinate weight to individual inconsistencies without having reference to the other evidence provided, the ‘consistent information provided under the stress of a hearing situation’, the timeframe that has passed since the incidents in Bangladesh occurred, human error or different interpretations of a question, and the context of the answers provided. The submission discusses the applicant’s evidence in relation to his father’s land; his uncle’s position in the BNP; his exit from Bangladesh; the evidence of his BNYP membership; his role within the BNYP; the ideology of the BNP; his recollection of the attack on his shop in 2009; and his recollection of the incident with the RAB in 2010. It was submitted that inconsistencies noted by the Tribunal do not give rise to a reasonable finding that the applicant was not involved with the BNP and/or BNYP politics, nor that minor inconsistencies of themselves cast doubt on the credibility of the applicant’s evidence, and cautions against the Tribunal giving ‘disproportionate’ weight to some minor inconsistencies at the expense of supporting evidence before the Tribunal.
[16] See the Tribunal files.
Assessment
Identity
On the basis of the identity documents provided to the Department and noting the findings of both delegates in this regard (after detailed consideration of the documents provided, the consistency of the applicant’s evidence in relation to this matter, and country information regarding the poor quality nature of identity documents issued in Bangladesh),[17] the Tribunal accepts that the applicant is a citizen of Bangladesh and that his identity is as claimed. The Tribunal accepts that Bangladesh is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[17] See the relevant Departmental files.
The issues in these cases are whether there is a real chance, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, that he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when 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.

When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
The Tribunal accepts that the applicant is an ethnic Bengali man of the Islamic faith who was born and grew up in the Jessore district of Bangladesh.
The Tribunal accepts that his father was a farmer who grew [specified products 1] on his own land. The Tribunal accepts the applicant’s evidence that, after leaving school, the applicant sometimes assisted his father with farming. The Tribunal accepts it is possible the applicant also had a small shop/store in the [Village 2 variant] market, located approximately 10 kilometres from his family home in [Village 1], where he sold [products 2]. In his TPV application the applicant indicated he did this from January 2004 until January 2012, just before he left Bangladesh in February 2012.
The Tribunal finds that the evidence indicates that the applicant departed Bangladesh in February 2012 travelling by air from Dhaka to [Country 2], via [Country 1]. The Tribunal accepts the applicant’s evidence that his departure was organised by an agent/agents who arranged a passport for him. As the applicant no longer has the passport or a copy of the passport, it is not possible for the Tribunal to make a definitive finding regarding whether he departed Bangladesh legally or not. The Tribunal notes that while the applicant commented at the hearing that he did not look at the passport and does not know if it was in his name or not, he also subsequently said it had his name and photograph in it. The Tribunal accepts that it is possible the applicant departed on a passport in another name and/or date of birth and that his departure was facilitated by the payment of bribes to Bangladeshi immigration officers.
Claimed involvement with the BNP/BNYP
The Tribunal found the applicant’s oral evidence at the hearing regarding his claimed involvement with the BNP/BNYP to be vague, generalised, lacking in spontaneity and inconsistent in significant and material respects with his written statements and some of his previous oral evidence to the Department. For the following reasons, considered cumulatively, the Tribunal does not accept that the applicant was actively involved with the BNP/BNYP as claimed or that he was harassed, threatened or mistreated by AL supporters or ‘hit-men’ as a consequence.
Firstly, the applicant was vague about why he became involved with the BNP/BNYP and what activities he undertook with the BNP/BNYP. When asked why he got involved with the BNP he did not speak at all about their philosophy or policies but simply said he thought they were good people, their behaviour was good and he liked the party. When asked what he did when he first started with the party he simply said he participated in meetings and gatherings, spent time with them and helped them.
Second, the Tribunal found the applicant’s evidence regarding his claimed role within the BNP/BNYP was vague, inconsistent and unconvincing. As noted above, at the hearing he indicated he was the [Official 2] of the youth wing, a claim that, while mentioned in his Entry Interview on 31 October 2012, was not raised in either his TPV or SHEV application or in the statutory declaration of 28 August 2015 where he set out his claims in detail. Significantly, when asked by the delegate at the TPV interview about his role with the party he stated he was a member of the youth party and when asked, repeatedly made clear that he did not seek or hold a position of higher authority. He altered his evidence when the delegate pointed out to him the inconsistency between his evidence at that interview and what he had stated at the Entry Interview. When queried about this at the hearing the applicant said he had forgotten to mention it subsequently. While the Tribunal accepts that there has been a significant passage of time since the alleged events occurred, the Tribunal does not accept that the applicant could forget to mention in written statements and at the TPV interview that he was the [Official 2] of the youth wing, and when specifically and repeatedly asked about his role and whether he had any leadership aspirations, that he would indicate that he was an ordinary member and ran out of time to achieve a position of higher authority.
The Tribunal also found that the applicant spoke in vague and generalised terms and could not clearly articulate how or why he became [Official 2] of the BNYP in his local area, what the role entailed, how it differed from the role of the [Official 1] or give an example of a proposed solution to a problem that they had identified the local people were facing. In this regard the Tribunal does not accept the representative’s assertion that the Tribunal was acting unreasonably in pressing the applicant for an example of one of his proposed solutions, as the Tribunal considers it is reasonable to expect that someone who held the role of local branch [Official 2] of a political party might recall one or two examples of actions they identified that might address issues of concern to the people they were consulting.
Third, the applicant showed very little understanding or appreciation of the ideology/philosophy, aims and policies of the BNP. His comments were vague generalisations – essentially that the objective of the BNP is to run the country property. He could not comment on why the BNP is the Bangladesh ‘Nationalist’ Party or how it differs in outlook to the AL. He did not touch on important points of difference such as the BNP’s support for a free market economy, belief that while all religions should be respected, there should be a special place for the teaching of Islam given it is the religion of the majority of Bangladeshis, and BNP’s less benign attitude to relations with India. While the Tribunal acknowledges that some of these concepts may be complex and difficult to express, the Tribunal considers that someone who was chosen by his BNYP colleague to be their local [Official 2] would be able to give a sense that he has some appreciation of these issues and the key points of difference with the AL.
Fourth, the supporting letter purportedly from the BNYP submitted by the applicant states that he is the Joint Secretary of the [Village 2] Union National Young Party rather than the [Official 2]. The applicant could not explain why this was the case, other than commenting that ‘he told them’ he was the [Official 2]. While this letter purportedly was signed by the [Official 1] of the [Village 2] Union National Young Party in December 2012, the applicant could not remember and therefore could not say at the hearing who this person was, even though he indicated it was the same branch he claimed to be [Official 2] of. Noting the country information cited above regarding document fraud in Bangladesh, including in relation to documents purportedly from political parties, and the applicant’s inability to say who the letter was from or why he was described as being the Joint Secretary, the Tribunal gives no weight to this letter as evidence that the applicant was in any way involved with the BNP/BNYP, let alone a local branch [Official 2].
Fifth, the applicant indicated that he voted on one occasion, but was not sure whether this was in 2006 or 2010. He settled on 2010 as the most probable date and said he voted for the BNP candidate whom he indicated was a person called Ali Kader. However, there was no election in 2006 or 2010 (there was one in 2008) and, as pointed out in the TPV delegate’s decision record, Ali Kader defected from the BNP in 2006 to join the new Liberal Democratic Party. The applicant indicated he was unaware of this. The Tribunal would expect that someone who was a local [Official 2] in the BNYP (or active in the party) would have been aware of this.
Sixth, the applicant did not volunteer any information at the hearing regarding his uncle, [named]. Although, when asked about his uncle, he indicated his uncle did not work but was involved full-time in politics and said his uncle was the ‘head’ BNP member for his uncle’s (neighbouring) village, he did not volunteer any information indicating his uncle was a significant influence on him, including when asked why he got involved with the BNP in 2007 and his activities with the BNP. When the Tribunal observed later in the hearing that he hadn’t spoken much regarding his uncle and queried the applicant regarding his uncle’s role in the BNP, the applicant initially simply said his uncle was a member. The Tribunal observed that the decision record of the SHEV delegate also indicates that he told that delegate at interview that his uncle was only a member of the BNP. When pressed that he had indicated earlier in the hearing that his uncle was the BNP head for his village, the applicant suggested ‘member’ and ‘head’ are the same thing in Bengali. The Tribunal doubts this is the case noting the applicant himself commented that his uncle was the ‘head’ BNP ‘member’ for his village, differentiating between the two concepts. When the applicant went on to say, when asked, that he spent time with his uncle attending political meetings and gatherings, this was not raised spontaneously. He also indicated that he does not know what his uncle is doing nowadays, suggesting a somewhat surprising disinterest in his uncle’s welfare. While he suggested, when asked, that it was common for BNP people in his area to be attacked by AL hit-men, he did not indicate that his uncle had ever been harmed as a consequence of his political activities for the BNP.
Seventh, as discussed in the evidence from the hearing detailed above, the Tribunal considers there were significant and material inconsistencies between the applicant’s evidence at the hearing and his statements in his statutory declaration of 28 August 2015 regarding the claimed incidents at his shop. Despite repeated prompting regarding the harm he experienced at his shop, in his oral evidence the applicant made no mention of being targeted for extortion by AL hit-men until this was explicitly raised with him. When queried regarding this, he said he was extorted for money but clearly stated this occurred two times in total, the last time being when his shop was damaged. When queried that this was different to his written statement, the applicant indicated he may have forgotten. He did not indicate, as now claimed by the representative, that he misunderstood the question and meant that he was visited twice weekly on a weekly basis, something which, if it was the case, the Tribunal expects he would have volunteered spontaneously in response to the repeated prompting of the Tribunal.
The applicant also indicated at the hearing that he did not know if police came to look at his store, contrary to his written statement which indicated that that they came the day after the attack to look at his market stall. He also said police came to his parents’ home looking for him 3-4 days after his shop was attacked, whereas it was stated in his statutory declaration they came about a month later. Most significantly, in his statutory declaration he stated that the police told his parents they were looking for him in relation to selling and smuggling of weapons, whereas at the hearing he said the police did not mention to his parents why they were looking for him. The representative has attributed this inconsistency to the passage of time and the traumatic nature of the events but the Tribunal does not accept that the applicant would forget such a significant component of his written evidence when asked directly whether the police told his parents why they were looking for him.
Eighth, the applicant also failed to mention his claimed encounter with the RAB when asked at the hearing if anything else happened to him before he left Bangladesh. When reminded of this, he provided an account that was significantly and materially different to the account in his statutory declaration of 28 August 2015. He made no mention of the incident occurring when he was closing his shop but indicated he was visiting another market; made no mention of a pistol being held to his head, and of fleeing out another door of the car into the dark night and going to his uncle’s home while the RAB men were talking outside the car. Instead, he said the RAB men left, he was questioned by an informer and then allowed to leave on the basis that he was not the person they were looking for. The representative again submits that these inconsistencies can be attributed to the passage of time, the trauma suffered by the applicant and his inability to remember specific details. The Tribunal considers, however, that these are fundamentally different accounts rather than matters of detail.
Nineth, the Tribunal found vague and unconvincing the applicant’s explanation for how he avoided arrest for over two years from 2009 (the claimed time of the incident at his market stall) until February 2012 when he departed Bangladesh, if he was being actively sought by police as claimed. In this regard the Tribunal notes the comments in the applicant’s statutory declaration that Bangladesh is a small place and the AL is very powerful and has informants everywhere in the country, so he would not be safe from them anywhere in the country. Despite this, the applicant, who appears to have remained in the Jessore district (where [Town 1] is also located) apart from nine days in Dhaka, was not located by police. When queried about this the applicant initially said he went to the nearby city of [Town 1] and indicated he stayed there for ‘some days’. He did not say weeks or months. When pressed regarding where he stayed for the remainder of what would have been a period in excess of two years, he indicated he spent a long time in [Town 1]. He when queried, he did not volunteer that police visited his relatives there and threatened them, as indicated in his statutory declaration, but said the police visited his parent’s home looking for him and could not get him in [Town 1]. It was only when the relevant statement in his statutory declaration was read to him that he altered his evidence commenting that police did ask his relatives whether he was there or not and that he used to hide in different places to his relative’s location so police would not find him.
The applicant also provided contradictory evidence regarding working at his shop. In his TPV application he indicated he worked there until January 2012, just before he left Bangladesh in February 2012, which would have meant he could have been readily located by police at his shop. In paragraph 9 of his statutory declaration he also indicated that the incident with the RAB men occurred towards the end of 2010, when he ‘was closing the shop and going home’, indicating he was still running the shop at that time. At the hearing, however, he indicated that after the claimed incident in 2009 when his shop was damaged by AL hit-men, he stopped working at his shop, totally. At the hearing he indicated nonetheless that the claimed incident with the RAB men occurred when he was returning home after he and a friend visited a different market, 25 minutes’ walk from his parents’ home, to shop and spend some time. If this was true, it remains the case that rather than moving around staying with relatives and friends in hiding, he was staying with his parents, and moving around openly in a local public area where he could be recognised by AL informants and his presence reported to police leading to his detention/arrest.

100. Given the concerns detailed above, the Tribunal does not accept the applicant’s claims that he or his uncle were involved with and/or affiliated with and/or members of the BNP/BNYP in the past in Bangladesh. The Tribunal does not accept that the applicant was a local [Official 2] of the BNYP. The Tribunal does not accept that the applicant organised and/or attended political gatherings or meetings of the BNYP or that he developed action plans on behalf of the BNYP to address issues of concern to local people. The Tribunal finds that the applicant was not harassed or targeted for extortion by AL hit-men or supporters because he was perceived to be opposed to the AL, his market stall/shop was not destroyed by AL hit-men or supporters, he was not being sought by police on trumped-up weapons charges and he was not apprehended by army RAB men in 2010. Consequently, the Tribunal does not accept that the applicant’s father was beaten-up by AL men in around May 2011 who were asking where the applicant was. The Tribunal also does not accept that the police questioned the applicant’s mother in 2015 regarding his whereabouts.
101. The applicant has not claimed to have been politically active in Australia or while he was in [Country 2] or [Country 3]. Given the Tribunal’s findings about the applicant’s lack of involvement with political activities in the past in Bangladesh, his lack of involvement in political activities in Australia or elsewhere, and his limited knowledge of the BNP and its policies and ideologies, the Tribunal does not accept the applicant would be politically active in support of the BNP/BNYP on return to Bangladesh in the foreseeable future.
102. Accordingly, the Tribunal finds the applicant does not face a real chance of suffering treatment amounting to persecution involving serious harm from the current AL government, AL members, supporters and/or hit-men, Bangladeshi authorities including the police and the army’s RAB, or any other authority, agency, group or person on return to Bangladesh, due to his and/or his uncle’s past activities in support of the BNP/BNYP.
Failed asylum seeker and illegal departure
103. As noted above, the Tribunal accepts it is possible that the applicant departed Bangladesh on a passport that was not in his name and/or date or birth and therefore may be considered to have departed Bangladesh illegally. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Bangladesh from the authorities as a failed asylum seeker and due to his possible illegal departure from Bangladesh in 2012.
104. As discussed with the applicant at the hearing (and outline above), DFAT have advised that it is an offence to depart from Bangladesh other than in accordance with the procedures set out in the Emigration Ordinance Act (1982), and that Bangladeshi’s require a valid passport and visas (depending on the destination country) to depart from Bangladesh.
105. The DFAT advice indicates that Bangladesh accepts both voluntary and involuntary returnees and, while Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees before authorising their return and issuing travel documents, DFAT comments that it has no evidence to suggest that recent returnees have received adverse attention from authorities or others.

106. DFAT notes that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. DFAT states it is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident.
107. DFAT comments that, if those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted, but states this is unlikely for returnees without such a profile and that it is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad. As the Tribunal has found the applicant does not have a political profile with the BMP/BNYP and has not been politically active in Australia or elsewhere, the Tribunal does not consider that the applicant’s entry into Bangladesh would be noted by the authorities.
108. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
109. The Tribunal also noted that, while DFAT does not state this specifically in the August 2019 report, the Tribunal is aware that in previous reports DFAT has indicated that, while there are penalties for departing illegally, they are not aware of any cases where those penalties have been applied.
110. At the hearing the applicant commented that he knows the situation he was in when he left Bangladesh and suggested he would be jailed or killed if he returned to Bangladesh.
111. The relevant country information as set out above indicates that it is very unlikely the applicant would be of interest to the authorities, including immigration authorities, on return to Bangladesh, even if they assumed he had sought protection in Australia and had departed illegally in 2012. In the applicant’s case, the Tribunal does not accept his claims to have been involved with the BNP/BNYP in the past in Bangladesh, and finds that he has not been politically active elsewhere. Accordingly, the Tribunal does not accept that his fears he would be jailed or killed on return to Bangladesh are well founded.
112. Given these considerations and noting DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention, and in the absence of information indicating penalties for leaving Bangladesh illegally are enforced, the Tribunal finds remote the chance the applicant will face serious harm at the hands of the authorities on return to Bangladesh, including in the form of detention and/or imprisonment. The Tribunal finds this is the case notwithstanding that he would be returning as a failed asylum seeker who has spent a considerable period of time living in a western country, and who may have departed Bangladesh illegally in 2012. The applicant’s fear of persecution on these bases is not well founded.
113. For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities on return to Bangladesh as a failed asylum seeker who has lived in a western country or due to his illegal departure from the country in 2012.
Conclusion – Refugee grounds
114. Having considered the applicant’s claims individually and cumulatively, for the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Bangladesh for any refugee reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
115. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.5J of the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
116. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
117. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[18]
[18] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
118. Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
119. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
120. Considering the applicant’s individual circumstances and his claims singularly and on a cumulative basis, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as set out in s.36(2A) from the current AL government, AL members, supporters or hit-men, Bangladeshi authorities including immigration authorities, the police and the army’s RAB, or any other authority, agency, group or person.
121. In reaching this conclusion the Tribunal has considered the representative’s submissions about the possible risks the applicant faces on return to Bangladesh due to flooding in the north-east of the country and due to the COVID-19 situation there. At the hearing when asked if he has concerns regarding these matters on return to Bangladesh, the applicant indicated that, while he has no comments he wished to make about these matters, he had not thought about them because he is not thinking of returning to Bangladesh. In her oral submission at the hearing, the representative commented that the written submission was made in the context of the applicant’s ability to relocate within Bangladesh, in relation to consideration under the complementary protection criterion. As the Tribunal has found that the applicant does not face a real risk that he will suffer significant harm from the current AL government, AL members, supporters or hit-men, Bangladeshi authorities including immigration authorities, the police and the army’s RAB, or any other authority, agency, group or person, the Tribunal does not consider that the applicant needs to relocate in Bangladesh away from his home region in the Jessore District.
122. More generally, while the Tribunal accepts there are COVID-19 related risks in Bangladesh, and risks related to natural disasters, including floods, the Tribunal considers there is nothing to indicate that the applicant would be at greater risk of natural disasters or public health risks (such as contracting COVID-19) than the risks faced by the population of Bangladesh generally. Accordingly, the Tribunal finds these are risks faced by the population of the country generally, not the applicant personally. The Tribunal is satisfied, therefore, that there is no real risk the applicant will suffer significant harm in relation to COVID-19 related risks, or those associated with natural disasters, as per s36(2B)(c).
123. Having considered the applicant’s claims singularly and on a cumulative basis and for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm.
124. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
125. There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
126. The Tribunal affirms the decisions not to grant the applicant a protection visa.
Paul Windsor
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.
…

[2023] AATA 873

10 January 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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Standing