1827565 (Refugee)

1827565 (Refugee) [2022] AATA 4056 (4 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBERS:  1827565 & 2120201
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nicole Burns
DATE:4 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 04 October 2022 at 12:08pm

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – feared being killed by family members of a young woman with whom he had a relationship – actual or imputed political opinion – family being members of the main opposition party in Bangladesh the BNP – limited knowledge of the BNP and its policies and ideologies – feared harm from the ruling party’s members and supporters – applicant had provided conflicting, inconsistent and contradictory information over time – a failed asylum seeker – fear of persecution is not well founded –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

This is an application for review of two decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2016 (the first protection visa application) and on 15 December 2021 (the second protection visa application) 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 [on] [date] October 2012. 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 22 May 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 17 September 2020 which was also valid.
The first protection visa application (TPV) on 22 May 2015 was refused by the delegate on 16 June 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 20 September 2018: AAT No. 1827565.
The second protection visa application (SHEV) on 17 September 2020 was refused by the delegate on 15 December 2021. 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 4 January 2022: AAT No. 2120201.
The applicant appeared before the Tribunal in a joint hearing on 1 September 2022 where he gave evidence and presented arguments about the issues that arise in both cases. The applicant was advised that the hearings for both cases would be combined in the hearing invitation, and this was explained at hearing: he did not indicate any issues with this approach (nor did his representative – who is the same for both cases). The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
Criteria for a protection visa
To meet the criteria for a TPV and 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on Bangladesh was issued on 22 August 2019.
Receiving country
The applicant claims to be a national of Bangladesh, born in [a] village, Jessore District. He told the Department (and Tribunal) he left Bangladesh in 2012 via boat without a passport (to [Country 1]) and was sent copies of his Bangladeshi identity documents from his family members in Bangladesh, after he arrived in Australia.
In his first Protection visa application the applicant records his name as ‘[Name 1]’ and date of birth (DOB) as ‘[date]’. In his second Protection visa application he lists the same name, although noted his birth name as ‘[Name 2]’, explaining that he does not use that name in any official capacity, as is custom. He records his DOB as ‘[date]’ and noted the first delegate found his DOB was ‘[date]’, but this finding was not reflected in the most recent correspondence to the applicant from the Department.
In support of his claimed identity and nationality, the applicant provided to the Department a copy of a Citizenship certificate (in Bengali and English) issued [in] August 2015 by a local council chairman, [which] states the applicant is known in his ward as ‘[Name 2]’; a copy of his Bengali birth certificate written in English issued [in] October 2012 which provides his name as ‘[Name 2]’ and DOB as [date]; and a copy of his Bengali birth certificate in English issued [in] November 2021 which gives his name as ‘[Name 1]’, DOB ‘[date]’. He has also provided various identity documents obtained in Australia, for example his Victorian driver license, Immi card, and proof of age card: all of which record his DOB as ‘[date]’.
At his second Protection visa application interview, the applicant explained his DOB was incorrectly recorded by the Department - and his correct DOB is [date]. He reiterated this in a written statement provided post interview dated 23 November 2021; in the representative’s written submission to the Tribunal; and confirmed as such at the Tribunal hearing. In the November 2021 statement he explains that he had applied for an amended birth certificate from Bangladesh to reflect the correct DOB, which he subsequently submitted. The delegate (in relation to the second Protection visa application) had some concerns but overall accepted his DOB as [date].
Inconsistencies in the applicant’s name also exist between some of the identity documents he has provided. He explained to the Department and Tribunal (in the representative’s submission) that these can be explained by the fact that whilst he prefers to use [Name 1], his name at birth is [Name 2]. Although not without some concern, the delegates (in both cases) accepted his explanation, and in the absence of being satisfied the identity documents provided were bogus documents, were ultimately satisfied as to the applicant’s claimed identity and nationality.
Given these considerations, the Tribunal is satisfied the applicant is a national of Bangladesh and finds that Bangladesh is his receiving country for the purposes of assessing his protection claims.
Background
According to the evidence before it, including the applicant’s oral evidence to the Tribunal at hearing, the applicant is a national of Bangladesh and is of Bengali ethnicity. He is a Muslim. He was born on [date], making him [age] years of age. He only ever lived in [a] village before leaving Bangladesh in August 2012 for [Country 1] where he stayed until he came to Australia in October 2012. In [Country 1] he worked in a [shop], as he had done in Bangladesh (from around 2008 to August 2012).
The applicant has [number of siblings]. His mother lives in their village. His father, who used to be a farmer, died a few months after the applicant left Bangladesh. Up until recently the applicant operated a [store] at [a] market. He lives in a share house with friends in Melbourne.
Claims and evidence
The applicant’s core protection claims in relation to his first Protection visa application (made in May 2015) and his second Protection visa application (made in September 2020) are broadly, essentially the same. That is, in summary he claims to fear being killed by family members of a young woman ([Ms A]) with whom he had a relationship, and who blamed him for her suicide. He also claims to fear harm from the ruling party’s (Awami League) (AL) members and supporters due to his (and his family members) past support to the Bangladeshi Nationalist Party (BNP). He claims the Bangladeshi authorities would not help him as [Ms A]’s family are AL members and are very influential.
The applicant’s specific claims and evidence provided in respect of each matter are set out as follows.
First Protection visa application (May 2015)
The applicant’s initial claims were set out in his first Protection visa application and in an accompanying statutory declaration dated 13 September 2015. In the statutory declaration he describes his and his family’s background; the inception and development of his relationship with [Ms A]; problems that ensued when her brothers discovered their relationship (including him being beaten by them, and [Ms A] subsequently committing suicide); and his escape from [Country 1] as [Ms A]’s brothers tried to pursue him. The applicant also details his, and his father’s and brothers’ political activities in Bangladesh in the past, problems – including violence from AL supporters – that ensued, and fears of persecution on return to Bangladesh as a result.
The delegate[1] in relation to the applicant’s first Protection visa application, was not satisfied the applicant had a relationship with [Ms A] at all, as they found aspects of his account implausible (among other concerns) and therefore did not accept he was beaten by her brothers due to that relationship; or that she committed suicide; or that her brothers wanted to harm him as a result. Whilst the delegate accepted the applicant may have been a BNP supporter in the past, they did not accept he suffered any harm in the past owing to his political beliefs or associations and ultimately, were not satisfied the applicant had any profile that would expose him to a risk of harm in the future in Bangladesh.
Second Protection visa application (September 2020)
[1] As set out in the decision record, a copy of which the applicant provided to the Tribunal on review.
The applicant reiterated his claims in the second Protection visa application, stating that he was attacked by the family of his ‘lover’ after they discovered their relationship; that her family did not approve due to their respective class standing; that his lover subsequently committed suicide after becoming aware of her family’s actions; and that her family blamed him and swore revenge against him. He states that he faced ‘continual’ threats to his life even when residing in [Country 1]. Additionally, the applicant said he fears harm due to his and his family’s political affiliation, and that his family had been harmed previously due to their political affiliation.
In a written statement dated 18 August 2021 (provided in support of his second Protection visa application), the applicant states that he continues to rely on his claims made in his 13 September 2015 statutory declaration and provided a copy of that statutory declaration to the Department at that time.
Additionally, the applicant provided to the Department a letter of support from one of his brothers, [Mr B], dated 18 August 2021. [Mr B] states that he assisted the applicant leave Bangladesh due to threats from [Ms A]’s family; the applicant was attacked by [Ms A]’s brother; and [Ms A]’s brother is still looking for the applicant.
The representative provided two written submissions to the Department setting out the applicant’s background and protection claims, dated 17 September 2020 (pre interview with the delegate) and 18 August 2021 (post interview). In it she contends the applicant fears persecution if he returned to Bangladesh on the basis of:
·His actual or imputed political opinion;
·Due to his relationship with his girlfriend and his political affiliation;
·The progress of the COVID-19 pandemic in Bangladesh;
·As a person who would be forced to support the Awami League; and
·As a failed asylum seeker.
Country information from a variety of sources was provided about the security situation and political instability in Bangladesh, the human rights situation, and lack of due process and fairness in civil and criminal matters, among other things, to support the representative’s contention that the applicant’s fears of persecution for these reasons on return to Bangladesh are well founded.
The representative also submitted that given the high risk of COVID-19 infection in Bangladesh (evidenced by a Centre for Disease Control (CDC) fact sheet which she attached), it is likely the applicant would face a heightened risk of infection on his return and increased scrutiny as an international arrival. This, in turn, would expose him to a greater risk of detection by the authorities and persecution as claimed, she submits.
The (second) delegate[2] did not accept the applicant’s claims related to [Ms A] or his (or his family members) alleged support to the BNP and refused to grant him the Protection visa on 15 December 2021, due to not being satisfied Australia owed him protection obligations.
Review applications
[2] As set out in the decision record, a copy of which was provided to the Tribunal on review.
On review, the representative provided to the Tribunal a written submission dated 25 August 2022 setting out the procedural history with respect to the applicant’s cases, his relevant background and protection claims. She attached several reports and articles from various sources about the security situation, political violence, treatment of BNP supporters (including enforced disappearances), and corruption in Bangladesh, among other things.
In the submission the representative argues that the applicant faces a well-founded fear of persecution in Bangladesh based on:
·His actual or imputed political opinion based on his family being members of the main opposition party in Bangladesh, the BNP, and his own participation in party activities;
·Being forced to join the AL, as he was when in Bangladesh; and
·As a failed asylum seeker.
The applicant gave oral evidence to the Tribunal about his reasons for leaving Bangladesh and fears on returning there now, summarised as follows. He said he left Bangladesh in August 2012 for [Country 1] [because] his girlfriend, [Ms A], had committed suicide and her brothers blamed him.
By way of context and background, the applicant explained that he was living with his parents and [siblings] in [a] village, Jessore District (where he grew up). He had been working at his uncle’s [shop] there from around 2008/2009 (after he completed school at a local madrassa). [Ms A] used to walk past his workplace on her way to and from school and they started talking and then developed a relationship, in secret, from around 2009/2010. They would talk at his workplace, sometimes at her school and other times they met up at a shopping mall. No one knew of their relationship. At one stage he asked his older brother, [Mr B], about [Ms A]’s family and he said he had heard they were wealthy, powerful, and politically active (as AL supporters). [Ms A] told the applicant she had two brothers and parents but little else. The applicant said when he met [Ms A] she was [age] and he was [age].

The applicant said sometime in July 2012 one of [Ms A]’s brothers and three or four others came to his uncle’s [shop] where he was working alone and beat him with sticks until he fell unconscious. Just before the attack he had heard them damage some furniture and they called out his name. He awoke in hospital sometime later where [Mr B] and his uncle told him they had found him unconscious and had taken him to hospital, where he stayed for three or four days. He had been beaten on his chest and head and was given medication.
On around day three in hospital [Mr B] told the applicant that [Ms A] had committed suicide by consuming poison, that her brothers blamed the applicant, and that for his safety he had to leave the country. [Mr B] then organised for the applicant to go straight from the village to [a town] and from there to [Country 1] by boat. The applicant worked in a [store] in [Country 1] until sometime in October 2012 when he came by boat to Australia, after [Mr B] advised that he had heard someone in [Country 1] who was familiar with [Ms A] might kill him.
The applicant said his mother and [Mr B] told him it is not safe to return to Bangladesh, and that no matter how long he has been away, if he returns [Ms A]’s brothers will kill him. He said her brothers had asked [Mr B] his whereabouts. Also, [Mr B] told the applicant that when he was in hospital, [Ms A]’s brothers went to their family home armed with sticks, called his name, and damaged their home.
In terms of support to political parties when he lived in Bangladesh, the applicant said he supported the BNP and would on occasion attend one or two-day political gatherings (he did not elaborate). He was not a member and not particularly active. He said his father and brothers were the same: that is, they supported the BNP, occasionally attended political gatherings, but were not members and not politically active. On return he said he would want to continue to support the BNP, but knows there are risks in doing so, including possible abduction by AL supporters. He said he is fearful of returning home because of the political problems there and because [Ms A]’s family might complain to the police about him and use their power. He added that he keeps track of the news in Bangladesh, and it is not safe for any opposition members and those who support them; whoever does not like the AL is in trouble he claimed.
After the hearing the representative provided a further written submission dated 15 September 2022 and a statement by the applicant of the same date, addressing some of the issues raised at hearing, discussed where relevant below. The representative submits the applicant is at risk of harm upon his return to Bangladesh on the basis of both his claims relating to being blamed for [Ms A]’s suicide as well as his family’s support and affiliation with the BNP, noting he is well known within his hometown.
Findings about the applicant’s past experiences, profile, and future fears
Having regard to the totality of the evidence before it, including the applicant’s oral evidence and the representative’s submissions and supporting documents provided, the Tribunal makes the following findings with respect to the applicant’s protection claims, and whether his fears of persecution on return to Bangladesh are well founded.
Fear of harm from [Ms A]’s family members
The Tribunal has considered the applicant’s claim to fear serious harm on return to Bangladesh at the hands of his former girlfriend’s ([Ms A]) family members, in particular her two brothers, who were against their relationship, and blame him for her suicide in 2012. He claims he had a secret relationship with [Ms A] from around 2010 to 2012; that when her brother found out he (along with others) assaulted him which resulted in his hospitalisation for several days; that on hearing this [Ms A] committed suicide; and her brothers have sought his whereabouts thereafter.
The Tribunal has concerns about aspects of the applicant’s claimed relationship with [Ms A] (and related problems), primarily due to inconsistencies in some respects between his evidence in his 2015 statutory declaration (provided in support of his first Protection visa application), his oral evidence to the Department at interview in respect of his first and second Protection visa application (as set out in the decision records), and his oral evidence to the Tribunal. For example:
a.In his 2015 statutory declaration the applicant states in July 2012 two (of three) of [Ms A]’s brothers and three others came to his uncle’s [shop] and assaulted him. He goes on to state that they did not say anything whilst beating him, but it was clear it was due to his relationship with the assailant’s sister, and they must have known because they did not ask his name. Yet at his interview with the first delegate (as set out in that decision record) he claimed he identified [Ms A]’s family when they beat him because they swore at him whilst beating him. At his interview with the delegate in respect of the second Protection visa application (as recorded in that decision record) the applicant stated that he did not know [Ms A]’s brother was the perpetrator of the beating until after he was admitted to hospital. Yet at the Tribunal hearing the applicant said one (of two) of [Ms A]’s brothers, along with three or four others came to the shop, started damaging furniture, called out his name, and when they were beating him, they accused him of being in a relationship with [Ms A]. He said whilst he had not met [Ms A]’s brother before, he knew who he was as she had pointed him out previously.
b.At interview with the delegate in relation to his second Protection visa application, when asked how his brother identified [Ms A]’s brother as the perpetrator of the beating, the applicant said there were many people gathered in the area (of his uncles’ shop) who witnessed the beating, and these unnamed bystanders informed his brother that [Ms A]’s brother was the perpetrator. In a post interview submission, the applicant states that his beating by [Ms A]’s brother was witnessed by unnamed persons in the village who knew his family. However, the applicant told the Tribunal he recognised [Ms A]’s brother at the time of the beating as [Ms A] had pointed him out at some stage earlier (as noted). Also, he told the Tribunal that he was alone at the shop when he was attacked. When asked about this inconsistency at hearing the applicant said he only saw one brother, but there might have been others. However, this does not explain his different accounts about whether he recognised [Ms A]’s brother (or brothers) as his attacker(s) at the time they attacked him (and whether or not they called out his name), or was told later by others, or whether he was alone or not at his uncle’s [shop] when the alleged attack occurred.
c.In his 2015 statutory declaration, the applicant states he was hospitalised after the attack for seven days; in his interview with the delegate in respect of the second Protection visa application, he said he was in hospital for six days; and in his oral evidence to the Tribunal, he said he stayed in hospital for three or four days.
Additionally, the Tribunal found the applicant’s oral evidence about whether or not [Ms A]’s family members tried to find and/or contact him via his family members after he left Bangladesh, confused, vague and changed over the course of the hearing in some respects. For instance, initially the applicant told the Tribunal his mother told him and his brother it was not safe for him to return to Bangladesh. When asked if anything happened specifically, the applicant said [Ms A]’s family members kept asking where he was and kept threatening his family members in Bangladesh. [Mr B] said they contacted him and asked about the applicant’s location. When asked who in particular, the applicant said probably [Mr B]’s friends. He was asked again about [Ms A]’s family, to which the applicant replied that they do not have his number and they cannot contact his family members, in contradiction of his earlier oral evidence. When the Tribunal asked him why [Ms A]’s brothers could not contact his family members in Bangladesh, the applicant said because [Mr B] is fearful about going to her family. However, his responses do not explain why [Ms A]’s family members were unable to contact the applicant’s brother or mother, particularly given they live in the same village. When pressed on this matter the applicant said [Ms A]’s brothers had gone to their home with sticks and damaged it whilst he was still in hospital, calling out his name. This undermines his evidence that they cannot contact his family, as if it were accepted - it means they knew where his family home was located. Additionally, the applicant fails to mention [Ms A]’s brothers had gone to his home when he was in hospital and damaged it with sticks (and called out his name) in his 2015 statutory declaration provided to the Department, which the Tribunal considers a significant omission.
The Tribunal also notes that although in his second Protection visa application the applicant states he faced ‘continual’ threats to his life, even when residing in [Country 1], at hearing he said no one contacted him directly in [Country 1] and he only heard from [Mr B] that someone familiar with [Ms A] was in [Country 1], who might harm him.
In her submissions to the Tribunal the applicant’s representative argues that it is not unreasonable for the applicant to be unable to recall specific information or recount various incidents slightly differently given the significant time that has passed since each incident. Also given the trauma the applicant has experienced: that is being attacked at his uncle’s shop, having lost his girlfriend as a result of suicide, and travelling to Australia by boat. Therefore, little weight should be attributed to any inconsistencies in the applicant’s evidence, which she describes as minor. Reference is also made to medical research confirming that a person’s memory can be impacted when recalling traumatic events. The Tribunal accepts that trauma and the passage of time can affect one’s ability to recall events and other details. Nonetheless, even considering the passage of time and possible trauma the applicant has experienced at various times of his life, there are several credibility concerns with the applicant’s evidence about his relationship with [Ms A] that cause the Tribunal to doubt his claims in this regard, as discussed above and below.
The Tribunal also found the applicant’s oral evidence about [Ms A] vague. For example, when asked what he liked about her specifically he replied in general terms that he liked her talking and behaviour but did not explain what it was about her talking and behaviour that he liked, or specific aspects of her personality he was attracted to.
Additionally, he knew very little about her family, despite claiming to have been in a relationship for around two years. He said her family were wealthy but did not know what job her father (or brothers) did. The applicant said he had found out from [Mr B] that [Ms A]’s family were rich, powerful, and politically active (as AL supporters) but was unable to provide any further details or context and when asked why not, said it was because he did not ask [Mr B] for details. In his statement submitted after the hearing, the applicant explains that he purposefully did not ask [Ms A] specific information about her family so that he would not be in a position where they could harm him, as he knew they were powerful and had a lot of influence. He believed that the less information he knew about her family, the less trouble he would be in for having a relationship with her, but that did not mean their relationship was any less serious.
The representative argues in her written submission to the Tribunal that the applicant and [Ms A]’s young ages at the time – [age] and [age] respectively when they met – should be considered. Given their ages and priorities it is not unreasonable for the applicant not to enquire about [Ms A]’s family situation, including their work, she contends. In her post hearing submission, the representative notes the applicant’s oral evidence to the Tribunal that he loved [Ms A], and intended to marry her, which should be given weight when considering the nature and seriousness of their relationship. Further, the nature of their relationship as described by the applicant is consistent with a young couple who had to hide their relationship due to differences in familial status and background. Despite not knowing the work [Ms A]’s family did, the applicant was able to identify the school she attended and was aware they were from different familial and socio-economic backgrounds, the representative submits.
The Tribunal has had regard to these submissions and accepts there may be plausible explanations as to the applicant’s limited knowledge of [Ms A] and her family situation, including their young age at the time. However, the Tribunal is less concerned about the strength and nature of the alleged relationship, noting that relationships can take many different forms and still be genuine (and serious), but is more concerned about the applicant’s vague and limited oral evidence about [Ms A]’s personality and her family situation, apart from general statements that her family are wealthy, politically influential and he likes talking to her and her behaviour. This, combined with inconsistences in his evidence about what allegedly occurred when her family members discovered their relationship for reasons set out earlier, causes the Tribunal to question whether or not the applicant had a relationship with [Ms A] at all.
Given these concerns, the Tribunal does not accept the applicant had a relationship with a woman called [Ms A] in Bangladesh in the past. It follows that the Tribunal does not accept her brother (and others) beat the applicant when they found out about their relationship, or that [Ms A] committed suicide on hearing this news. It also follows that the Tribunal does not accept [Ms A]’s brothers, or any of her relatives have attempted to find the applicant seeking revenge for her death or have threatened his family members in Bangladesh either before or after he left the country (including in [Country 1]), as claimed. The Tribunal does not accept [Ms A]’s brothers and others attended the applicant’s family home whilst he was allegedly hospitalised and damaged it with sticks whilst shouting out his name as claimed.
Accordingly, the Tribunal finds the applicant does not face a well-founded fear of persecution from [Ms A]’s brothers, her relatives or anyone else on return to Bangladesh because of his clandestine relationship with her (and her subsequent suicide) as submitted. His fears of persecution on this basis are not well founded. It follows that the Tribunal does not accept [Ms A]’s family members would use their AL political links to harm the applicant and/or ensure he has no protection from the authorities.
In reaching this conclusion the Tribunal has had regard to the letter provided to the Department from the applicant’s brother in which he states the applicant left Bangladesh due to threats from [Ms A]’s family, and that her brother who attacked him is still looking for him. The Tribunal notes the assertions in that letter are fairly general and is not satisfied such assertions overcome these credibility concerns with respect to the applicant’s evidence pertaining to his relationship with [Ms A] (and related problems), as set out above. Accordingly, the Tribunal gives the letter little weight.
Support to the Bangladesh Nationalist Party (BNP)
The Tribunal has considered the applicant’s claims to have supported the BNP in the past in Bangladesh, and to fear persecution from AL supporters as a BNP supporter on return to Bangladesh in the foreseeable future.
In her submission to the Tribunal the representative emphasises the risks that opposition supporters (including the BNP) face in Bangladesh, and the high levels of politically motivated violence there (among other things) to support her contention that the applicant’s fears on actual and imputed political opinion grounds as a BNP supporter upon return to Bangladesh, are well founded.
As discussed at hearing, the Tribunal has several concerns about the applicant’s claimed political activities in Bangladesh in the past (and his father and brothers), including because the applicant’s evidence about his and his family members’ involvement with the BNP before the Department and Tribunal has been inconsistent in some key respects and changed over time, as follows.
At hearing when asked about his, and his father and brothers’ involvement with any political parties or groups in the past in Bangladesh, the applicant said they were only BNP supporters who occasionally attended gatherings. However, this is in contrast to his claims in the 2015 statutory declaration provided in support of the first Protection visa application, that his father was a member of Jamaat-e-Islami (JI); that the applicant and his two brothers were BNP members; they were all very politically active; and that people knew that was the case as they attended meetings and worked in local offices of political parties. He also states that around election time they used to attend political rallies; undertook campaigning; and helped organise rallies and events. Yet the applicant did not indicate as such in his oral evidence to the Tribunal, and when these inconsistencies were pointed out, he noted that it was a long time ago. The Tribunal agrees that it was a long time ago and does not necessarily expect him to remember specific dates of events, for example. However, it does expect him to remember whether he was politically active at election times and working at local offices (for example) as claimed when he first sought protection. His claims to have been very politically active then (along with his father and brothers) is significantly different to what he now tells the Tribunal - that they were BNP supporters only, who occasionally attended gatherings. The Tribunal also notes the applicant made no mention of his father being a member of JI – which is a separate party to the BNP – whatsoever at hearing and did not offer any explanation as to why he claimed as such in the 2015 statutory declaration.
Additionally, at hearing the applicant said neither he, his brothers, or his father experienced any problems (such as being harmed and/or threatened) from anyone as a result of their support to the BNP in Bangladesh in the past. This is in contrast to the applicant’s claims in the 2015 statutory declaration that there was politically motivated violence against his family at elections; when the AL won the 2008 elections two of his brothers were assaulted at home and left soon after because of threats of [violence]; a brother went to the police when assaulted, who did not help and the police must have told his assailants because they returned to the house three days later, damaged property and threatened his mother and three sisters-in-law.
In a statement provided to the Tribunal after the hearing, the applicant explains that he misunderstood the question, thinking he was being asked if he had been threatened due to his political affiliations, not his family members. He clarifies that his family have been threatened due to their affiliation with the BNP; his brother has been assaulted by AL members and the police could not help him; once the assailants found out the assault had been reported, the police did not assist and the perpetrators returned to the applicant’s brother’s house three days later where they damaged the property and threatened the only persons home at the time: that is his mother and three sisters in laws, as indicated in the 2015 statutory declaration.

The Tribunal has considered the applicant’s explanation for this inconsistency. Even if he was initially confused at hearing about the question, the Tribunal notes he was asked more than once at hearing about the level of his father and brothers’ political involvement in Bangladesh, and the Tribunal also referred specifically to the parts in his 2015 statutory declaration pertaining to alleged problems. In response, the applicant said it happened a long time ago, he cannot remember, and reiterated that they just supported the BNP, but did not hold any specific positions or designations.
The Tribunal also found the applicant’s oral evidence about his alleged involvement with the BNP (and reasons for doing so) general and vague, and his knowledge of the BNP limited. For instance, when asked about what it was that attracted him to the BNP – including any specific party ideologies or aims - the applicant replied in general terms about what he did not like about the AL, who he said were against Muslims and religious leaders. When asked again he repeated that he does not like the AL because they are against Muslims, or those he referred to as ‘religious people,’ noting that if the BNP were in power Muslims can keep their beards and dress up as they wish. The Tribunal notes one of the main ideological principles of the BNP is preserving the teaching of Islam, which is what the applicant may have been referring to in his oral evidence at hearing. However, he was unable to identify any of the other main ideological principals, such as Bangladeshi nationalism or free market economy,[3] and overall the Tribunal found his evidence about the BNP general and limited.
[3] 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, political-parties-inbangladesh.pdf
Given these concerns, the Tribunal does not accept the applicant’s claims that he or his family members – specifically his brothers, and father – were involved with and/or affiliated with the BNP or the JI in the past in Bangladesh. It does not accept he (or his family members) attended political gatherings as indicated at hearing, or that he or his family members were involved in campaigns around election time, or worked at local offices, or that his father was a member of JI as claimed at the first Protection visa application stage. Accordingly, the Tribunal finds he does not face a real chance of serious harm from AL supporters or anyone on return to Bangladesh due to his and/or his family members past support to the BNP and/or BNP affiliations, and/or the JI.
Given these findings about the applicant’s lack of involvement with political activities in the past in Bangladesh, the fact he has not been politically active at all in Australia (or during his approximately two month stay in [Country 1]), and 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 (or any other group) on return to Bangladesh in the foreseeable future, despite his claims to the Tribunal (and Department) that he would actively support the BNP on return (if not for fear of doing so).
Accordingly, the Tribunal does not accept that the applicant would support the BNP on return to Bangladesh and finds he does not face a real chance of serious harm from AL supporters or anyone else because of his (or his family members) past or future support to the BNP on return to Bangladesh in the foreseeable future. His fears of persecution due to his actual or imputed political opinion (based on his family being members of the main opposition party in Bangladesh, the BNP, and his own participation in party activities) is not well founded.
The Tribunal has considered the submission that the applicant also faces a well-founded fear of persecution on return to Bangladesh as a person who would be forced to support the AL, as he was when in Bangladesh. When asked about this at hearing, the applicant said he would not join the AL because they are completely against Muslims. He clarified that in the past no one had ever approached him to join the AL. Based on his oral evidence the Tribunal accepts the applicant has not been pressured to join the AL in the past. Even if the AL are keen to garner more supporters, there is no information before the Tribunal that indicates individuals such as the applicant would be forced to join them, and possibly face serious harm if they refused to do so. The Tribunal is not satisfied the applicant faces a real chance of serious harm from AL supporters in the form of being forced to join them if he returns to Bangladesh.
Failed asylum seeker and illegal departure
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 illegal departure from Bangladesh in 2012 (without a passport), as submitted.
The Tribunal accepts the applicant’s evidence at hearing that he departed Bangladesh by boat to [Country 1] in 2012, without a passport. When asked if he had any particular concerns on this basis at hearing, he said ‘no’, noting his concerns relate to what might happen to him on return to his village because of the situation with [Ms A]. For reasons above the Tribunal has not accepted his claims in this respect.
As discussed at hearing, DFAT state the following about returnees (including failed asylum seekers) to Bangladesh:
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 (including for Rohingya) before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organization for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
…
Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. 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 political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted (see Bangladesh Nationalist Party (BNP)). 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[4].
[4] DFAT Country Information Report Bangladesh, 22 August 2019 at 5.27, 5.29 & 5.30.
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[5]. As discussed at hearing, the most recent DFAT report is silent on what specifically might happen to a returnee who had departed illegally and/or without a valid passport. However, an earlier DFAT report states that if a person leaves or attempts to leave Bangladesh without a valid passport, they may face imprisonment for up to three months or a fine.[6] In a July 2016 report DFAT advises that it is not aware of these penalties being enforced,[7] and there is no information before the Tribunal to indicate otherwise. In her post hearing submission, the representative argues that the Tribunal cannot assume those departing Bangladesh without a passport would not face harm on the basis that the current DFAT report on Bangladesh being silent on this issue. She adds that being silent on an issue does not indicate that such harm is not plausible or a possibility.
[5] DFAT Country Information Report Bangladesh, 22 August 2019 at 5.25
[6] DFAT Country Information Report, Bangladesh, 20 October 2014 at 5.28.
[7] DFAT Country Information Report, Bangladesh, 5 July 2016 at 5.20
Whilst it may be possible, the Tribunal notes the test is whether or not the applicant would face a real chance of serious harm by the authorities on return to Bangladesh as a failed asylum seeker and someone who had left Bangladesh illegally (without a passport) several years earlier. Based on the DFAT advice and in the absence of information indicating penalties for leaving Bangladesh without a passport are not enforced, the Tribunal considers remote the chance the applicant would face serious harms at the hands of the authorities on return to Bangladesh because he left the country without a passport several years prior.
As noted earlier, DFAT in their most recent country information report states that given Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year, ‘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.’[8]
[8] DFAT Country Information Report Bangladesh, 22 August 2019 at 5.29
At hearing the applicant said, despite what DFAT advise, he knows his own situation and that if he returns, he will be killed.
The country information as set out above indicates that it is unlikely the applicant would be of interest to the authorities on return to Bangladesh, even if they assumed he had sought protection in Australia and had departed illegally over a decade ago. In the applicant’s case, the Tribunal does not accept his claims to have been involved with the BNP in the past in Bangladesh, and he told the Tribunal he has not been politically active in [Country 1] or Australia.
Given these considerations and noting DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention, the Tribunal finds remote the chance the applicant will face serious harm on return to Bangladesh as a failed asylum seeker and due to his illegal departure in 2012 (without a passport), including in the form of detention and/or imprisonment. His fear of persecution on these bases is not well founded.
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 or due to his illegal departure from the country years earlier.
Conclusion – Refugee grounds
Having considered the applicant’s claims individually and cumulatively, for 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.
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
Given these findings, the Tribunal has gone on to consider whether the applicant faces a real risk of significant harm for the grounds advanced if returned from Australia to Bangladesh as required under Australia’s complementary protection provisions.
The Tribunal finds the applicant is a national of Bangladesh and that Bangladesh is his receiving country for complementary protection assessment purposes.
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. The definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ were included in the delegate’s decision.
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.
In her written submission to the Tribunal, the representative contends that the applicant faces a real risk of significant harm under the complementary protection provisions in the form of being arbitrarily deprived of his life, due to his former relationship and political affiliation, noting his BNP affiliation in addition to the revenge of his former partner’s family cumulatively heightens his profile and risk of harm on return. Reference is made to country information about the mistreatment of opposition supporters in Bangladesh, including enforced disappearances, and reports of extra judicial killings by security forces. It is submitted the applicant – as a BNP supporter - is also at risk of politically motivated criminal charges by the authorities, and therefore they cannot assist him. Additionally, he faces a real risk of significant harm due to the current natural disasters in Bangladesh, specifically floods in north-eastern Bangladesh which has left many homeless, and related risks of landslides.
For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm, if he returns to Bangladesh now or in the foreseeable future, from [Ms A]’s family members due to his relationship with her (and her suicide); from AL members or supporters as a BNP supporter; because his brothers are BNP supporters; because his father was a BNP supporter or JI member; or from the authorities as a failed asylum seeker who departed the country illegally. 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 the Refugee Convention definition.[9] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh.
[9] 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], Flick J at [342].
The Tribunal has considered the representatives’ submissions to the Department and Tribunal about the possible risks the applicant faces on return to Bangladesh due to the COVID-19 situation there, and more recently the devastation (and displacement) due to annual flooding. At hearing when asked if he has concerns in these respects on return to Bangladesh, the applicant said he does not: his concerns relate to the situation with [Ms A]’s family, as noted earlier. In her submission to the Tribunal, the representative argues that these risks to the applicant are not faced universally to the Bengali (people) but are individual to the applicant because of his individual circumstances and profile, including as a BNP supporter. However, for reasons above the Tribunal does not accept his claims in this regard and 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.
The Tribunal accepts there are COVID-19 related risks in Bangladesh, and risks related to natural disasters, including annual floods. However, as these are risks faced by the population of the country generally, not the applicant personally, the Tribunal is satisfied 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).
Having considered the applicant’s claims singularly and on a cumulative basis and for all 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.
CONCLUSION
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.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decisions not to grant the applicant a protection visa.
Nicole Burns
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.
…

[2022] AATA 4056

4 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing