1836961 (Refugee)

1836961 (Refugee) [2023] AATA 1234 (15 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1836961
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:15 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 March 2023 at 6:00pm
CATCHWORDS
REFUGEE – Protection Visa – Bangladesh – political opinions – a BNP activist with strong profile – holding a political opinion against the Awami League – being a businessman with BNP connection who contributes financially to the BNP – membership of a particular social group – Bangladesh diaspora involved in activities against the Awami League government – applicant has a well-founded fear of persecution for reason of his political opinion – adverse political profile – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh applied for the visa on 9 August 2017. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk he will suffer serious or significant harm if he returns to Bangladesh.
The applicant appeared before the Tribunal on 20 January and 22 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle ([Mr A]) by telephone. 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively 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 matter should be remitted for reconsideration.
Summary of claims
According to information contained in his application for a Protection visa, the applicant is a [age]-year-old citizen of Bangladesh. He was born in [Division 1], [District 1] in Bangladesh. Before coming to Australia, he resided at [address], [Division 1], [District 1] in Bangladesh from October [year] until June 2017.
The applicant studied at [a] High School from January 1991 until December 1998. He was self-employed [between] March 2001 and June 2017. Furthermore, he was self-employed with [Business 1] from March 2001 until June 2017. The applicant’s wife [and] his children [are] currently living in Bangladesh. His mother [and sisters] currently reside in Bangladesh. His brother [currently] resides in Australia.
The applicant made the following claims on the statutory declaration provided with his protection visa application form, dated August 2017:
He was born in [Division 1], [District 1] in Bangladesh.
He has one brother and [sisters]. His brother is in Australia.
He states that his father died in 1986. He was a freedom fighter and active in the Muslim League.
The applicant was married in 2011, divorced in 2014 and remarried in 2014. He lives in [a] District with his wife, [daughters] and mother.
His native district [District 1], falls into a greater Faridpur Division where most people are supporters of the Awami League and where the Bangladesh Nationalist Party has not won any seats since 1991. The applicant states that a lot of intimidation and harassment toward BNP supporters occurs here from Awami League cadres.
The applicant left high school in [a grade] and in 2001 started a [shop] in his village trading as [name]. On 2 January 2017 he became a [partner] in a [company] owned by his uncle [Mr B], trading as [Business 1].
The [uncle] of the applicant [Mr A] was the motivating factor in him joining the BNP in 2001. [Mr A] was a well-known BNP leader in the area and guided the applicant in ‘many ways’. His uncle represented the BNP for the constituency of [deleted]. The applicant attended a rally for his uncle in 1996 and started attending political rallies, meetings and local gatherings. In 2001 the applicant helped mobilise and engage local youth for his uncle during an election campaign and used his business premises for campaign meetings and political advertising. He financially supported the BNP and distributed posters and pamphlets. Although the BNP won the election, his uncle lost to the Awami League candidate.
The applicant was encouraged to join the BNP youth wing by his uncle, who promoted him to take up a leadership role. He joined Jubodal BNP in [Union 1] Parishad in 2004. In January 2007 the Bangladesh Army took power from the ruling BNP government and the applicant continued to participate in BNP politics discreetly.
His uncle contested the election in 2008. In 2008 his district was [redistributed]. The prevailing Awami League candidate in this district would later become [a position]. During this campaign the applicant became, in substance, the campaign manager for his uncle for [Union 1]. The applicant gained access to his uncle’s finances which upset local BNP members. His profile grew, and he became a source of concern for local Awami League members.
On [date] February 2009 the applicant became [Position 1] of [Union 1] Parishad Jubodal branch. This meant that he was responsible for [deleted]. He was promoted to [Position 2] on [date] March 2013. Because of his elevation he was attacked by Awami League cadres in January 2014 during an anti-government rally concerning election monitoring. In January 2015 the applicant was attacked at another rally and suggests that at this time there were elements within his own party who were envious of his position.
In March 2016 the applicant participated in the local ‘Union Parishad Election’ for the position of [Position 3] of [Union 1] Parishad. Candidates were nominated by political parties, including the BNP and Awami League. He was put forward as a candidate by his uncle, but the BNP chose [Mr C] instead. He states a deal was struck at this time to facilitate his selection as BNP candidate in 2020. A former chairman [Mr D] contested the election as an independent. The applicant states that both Mr [C] and Mr [D] developed antipathy toward him and feared that he would soon become a leader and enter national politics. An Awami League candidate won the election and Mr [C] and Mr [D] accused the applicant of undermining them for his own ambitions.
In November 2016 the applicant was selected as [Position 4] of [Division 1] Thana and approved by ‘high command’ on [date] May 2017. The applicant states that when the list went to high command his uncle used his influence to have the applicant appointed as the [Position 5] of [Division 1] Thana Jubodal BNP rather than [Position 4]. His uncle advised him of this beforehand and advised that he would tell local leaders of his choice. He suggests that his uncle wanted him to be the ‘main campaigner’ for [Division 1] Thana for the 2018 election. The applicant states that at this time he became an enemy of the BNP and Awami League, due to his leapfrogging many other BNP leaders. Union level Awami League leaders also became hostile toward the applicant.
On [date] January 2017 the applicant was in a meeting with a union leader in his shop, organising a “day of killing democracy” to take place the next day, an annual protest against the ‘fraudulent’ election of 2014. They were attacked by 5-6 people, including; [Mr E], [Mr F], and [a named person] who assaulted them with hockey sticks and tree branches. [Mr E] held a pistol to the applicant’s head and threatened to kill him if he did not leave politics. The applicant received treatment locally, then travelled to Dhaka by bus where he stayed 3 days in hospital for further treatment.
On 14-15 January 2017 the applicant learned a case was filed against his uncle and 50-60 other BNP supporters in [named] Thana in February 2015 alleging they were involved in firebombing a bus near [a] School. He states that this case was politically motivated, that as of writing it was unresolved, and that he believed there would soon be a case against himself.
In late January 2017 the applicant’s pond, located on his own land, was poisoned resulting in the death of his fish and prawns. On [date] February 2017 a note was left at their door demanding 20 Lakhs taka and threatening death to the applicant if he did not pay. The applicant ‘was told’ that if he paid, his name would also be left off the firebombing charge sheet. He indicates that [Mr E] and [Mr F] of Awami League [Position 6] of [Union 1] instigated this incident. The applicant also suspects that [Mr D] and his father’s stepbrother, [Mr G], who is the [Position 5] of Awami League, [Union 1] also had a hand in targeting him.
He states that he has had many arguments with [Mr G] and the [Position 6] of the Awami League [Mr F], over property and politics. He indicates that [Mr D] wanted to be the candidate for the Awami League in 2020. Mr [D] also indicated that the applicant’s land with the pond belonged to his father, and he was extorting the applicant, threatening to launch politically motivated cases against him. [Mr G] and his brother ([the] [Position 4] of [Division 1] Thana Jubo League of Awami League) took a lot of their land from their grandfather through fraudulent means using their political connections to deprive his father and other uncles of their share of the property. Due to the property issue he had many arguments with them and threatened to take them to court. They laughed off the suggestion claiming that as long as the Awami League is in power they could do nothing. They also warned him that they would go to any lengths to stop his political activities and his intention to regain a fair share of their ancestral property.
His uncle (his mother’s sister’s husband) [Mr B] who is the Chairman of [Union 2] Parishad as well as [an official] of the [Union 2] Awami League has a strong connection with the current Local [MP]. His mother pleaded with him to help save his life and he did give him shelter for some time. However his uncle advised them in February 2017 that he could not continue to protect him and asked him to leave the country. He also told him that his name would be included in the charge sheet falsely accusing him of vandalising the public bus with fire and bomb. He warned him that if he stayed in Bangladesh he would be abducted and killed. He told him that the next National Election was scheduled for middle or late 2018 and there were instructions from high command to make a list of active BNP supporters and people with influence in the community to harass them, make false cases against them and even eliminate them to make way for the Awami League to win or snatch the election.
In the meantime, under the instruction of the BNP high command and due to the influence of his uncle [Mr A] he was selected on [date] May 2017 as the [Position 5] of [Division 1] Thana Jubodal branch.
He states that in March 2017 his mother and his wife contacted his brother in Australia and asked him to help get him out of Bangladesh. After a failed attempt to secure a sponsored visitor visa he was finally granted a visa on 24 May 2017. While this was going on, in order to save his life, he paid 500,000 Taka to the Awami League criminal network and promised he would pay the rest soon. After he obtained the visa he came to Australia on [date] June 2017.
His uncle [Mr A] came to Australia in July and they liaised with the BNP leaders and were advised that the international community would intervene to have an election take place under a care taker government. The leaders wanted him to return to Bangladesh to take up a leadership role. During that time he also met with [a] BNP leader in Australia of the BNP Australia chapter.
After seeking help for deteriorating mental health his brother took him to seek immigration assistance and he was advised to seek protection in Australia.
He fears that if he returns to Bangladesh he will face serious or significant harm for the following reasons:
-    Being a Jubodal Member and a BNP activist with strong profile
-    Holding a political opinion in support of the BNP
-    Holding a political opinion against the Awami League
-    Being a known BNP activist with considerable profile
-    Being a businessman with BNP connection who contributes financially to the BNP
-    Being perceived to be the potential successor of his uncle [Mr A] who is the current [specified official] of the BNP of [District 1] and who is promoting him to take his place in the area
-    Due to intra-party conflict within the BNP and being targeted by enemies within the BNP who will target him for their political survival
-    Due to land and property disputes with his uncles and [Mr F] who are affiliated with the Awami League.
He fears he cannot get effective protection from the authorities because they are under the instruction of the Awami League. Even if he moves to other parts of Bangladesh he will continue to face harm because he will continue to engage in political activities and the Awami League will consider him as a potential BNP leader at the national level.
In support of his application the applicant provided to the Department the following:
-    A letter dated [October] 2017 from [Mr A] MP, [official], Bangladesh Nationalist Party, [District 1] District, Central Executive Committee Member, BNP.
-    A difficult to decipher handwritten document which appears to be a medical document of sorts dated 4 January 2017.
-    Medical reports indicating the applicant has various physical and mental conditions for which he has sought treatment in Australia.
-    Various photographs which purportedly show the applicant in attendance at BNP functions/events in Australia.
-    A letter from [name], Advisor of the BNP Australia, Senior-[official] of BNP, [named] District, Bangladesh, Ex-[official] of BNP Australia indicating the applicant is [a position] of BNP Australia.
-    A letter dated 10 October 2017 from [a] Chairman, [Union 2] Parishad Awami League, [District 1], Bangladesh. The letter indicates the applicant is the nephew of the authors wife. [He] indicates that despite the applicant being a political opponent he provided him with protection and shelter at the request of his relatives.
-    A statement by [name], the [Position 6] of Bangladesh Nationalist Party of Australia dated 7 November 2018.
-    A letter from the Bangladesh Jatiotabadi Jubodal in [named] Thana Branch, [District 1] dated 8 October 2017 noting the applicant’s election to the position of [Position 5] of BNP Jubodal of [the named] Thana Branch.
On 11 November 2018 the applicant’s representative provided a submission to the Department detailing relevant country information which they submit supports the applicant’s case. It was submitted that the applicant faces serious harm in Bangladesh on account of his political opinion and membership of a particular social group – Bangladesh diaspora involved in activities against the Awami League government.
Evidence provided to the Tribunal
The applicant provided the Tribunal with a lengthy statutory declaration dated 13 January 2023. It is summarised as follows:
-    He is currently working as an executive member of the BNP [Australia]. Previously he was the [Position 1] of BNP Australia.
-    He lists the jobs he is currently undertaking for the BNP Australia, including [deleted].
-    Though he left Bangladesh in 2017 he continues to hold the position of [Position 5] of Jubodal [Division 1] Thana as due to continuous harassment and intimidation the BNP in his area have been unable to form a new committee. He continues to liaise with the local committee and attends committee meetings via phone. He also continues to financially contribute to the political activities of the BNP in his local area in Bangladesh.
-    He connects BNP leaders in Bangladesh with leaders of the BNP in Australia and for this reason the local leaders in Bangladesh appreciate him and have allowed him to continue in his position as [Position 5] of Jubodal [Division 1] Thana.
-    His uncle [Mr A] has advised him to concentrate on building his political career in Australia to help further his career in Bangladesh.
-    His uncle and other leaders are considering appointing him as a [Position 2] of [Division 1] Thana which is a further step closer to becoming involved in national level politics.
-    Many false cases and charges have been laid against BNP leaders in [Division 1] Thana and there are frequent attacks by AL and police on BNP members.
-    His uncle’s house was attacked and he was held captive in his own home for a night. In the morning [the] local BNP President was arrested and jailed and a case was filed against many of their leaders.
-    He lists a number of examples of cases filed against the BNP leaders in [Division 1] Thana Jubodal.
-    His uncle has two false cases made against him on 19 February 2015 and 3 September 2018. He is on bail for both cases.
-    Both he and his uncle have been in a position to make significant financial contributions to the BNP and this is one of many reasons why he was targeted by the AL.
-    His uncle [Mr B], chairman of [Union 2] and [an official] of the [Union 2] Awami League, passed away on [date] October 2020 due to COVID-19. He formerly helped him by giving him shelter and advised him to leave Bangladesh.
-    He has been spreading the ideology of the BNP via social media ([social media]) by liking and sharing news posts related to the BNP. He was threatened by people in December 2018 and January 2019, via [social media], for making comments and sharing BNP related posts and comments against the AL. Soon after AL people went to his house and threatened his mother and wife saying they will kidnap his daughters for making comments against the AL. Thereafter his mother and wife asked him to maintain a low profile online.
-    He continues to engage in political activities because he believes that young people have a duty towards the people and country to restore democracy.
-    He notes that there will be an election in January 2024 and that the current AL government and cadres have already started threatening and harassing BNP activists including the mere supporters and harming them.
-    He believes he will have a critical role to play in politics representing the BNP. His uncle is grooming him and there is a reasonable possibility he will enter national level politics as new blood is needed.
-    The BNP Australia intends to organise a peaceful demonstration in Sydney and Canberra in February or March 2023 and he is actively involved in the discussions about that.
-    The AL are concerned about the Bangladesh diaspora overseas and activists and leaders are monitored. He states there is a strong AL party presence in Sydney which monitors and passes information about BNP activities in Australia.

The applicant provided a number of attachments to support his claim including the following:
-    A letter [dated] 6 January 2023 certifying he suffers multiple physical and psychological conditions.
-    A statement from his uncle [Mr A] dated 13 January 2023.
-    A letter from [Position 2] of [Division 1] Thana Jubodal dated 12 January 2023.
-    A letter from [an official] of [Division 1] Thana Jubodal dated 12 January 2023.
-    A letter from [a named person], BNP Australia dated [January] 2023.
-    Copies of his mothers and [Mr A]’s birth certificates.
-    A report from a psychologist dated 13 January 2023.
-    Numerous photographs depicting his attendance at BNP events and functions; planning meetings and protest actions in Australia.
On 17 January 2023 the applicant provided additional documentation in support of his claims including:
-    Further photographic evidence.
-    A statement from [a named official of the] Bangladesh Nationalist Party, dated [May] 2022.
-    An article titled “Bangladesh Arrests Thousands of Political Activists Ahead of Opposition Protest”, dated 7 December 2022
-    An extract from Human Rights Watch World Report 2023 – Bangladesh noting increasing attacks against political opposition members.
-    An article titled “Human Rights Watch Voices Concerns Over Attacks on Bangladesh Opposition”, dated 12 January 2023.
On 18 January 2023 the applicant’s representative provided a submission to the Tribunal outlining country information which supports the existence of ongoing persecution of BNP members and activists by the AL.
Tribunal hearing
The applicant appeared before the Tribunal on 20 January and 22 February 2023 to give evidence and present arguments in support of his case. During those hearings the Tribunal discussed at length with the applicant his background in Bangladesh; his claimed involvement with the BNP and the past harm he claims to have experienced in Bangladesh on account of his political opinions; his claimed political activity in Australia and his reasons for fearing a return to Bangladesh. The applicant provided extensive oral testimony in respect of those issues and the Tribunal also heard oral testimony by phone from the applicant’s uncle ([Mr A]) on 20 January 2023.
Post hearing submissions
On 2 February 2023 the applicant provided a written statement in respect of claimed incidences of misinterpretation by the interpreter engaged during the first Tribunal hearing. Essentially, he objected to the interpreters use of the words “kidnapping and ransom” used by his uncle in his oral testimony on 20 January 2023. He also provided a further letter from [Mr A] which states his choice of words was influenced by the late hour of the telephone call and fatigue. [Mr A] states he ought to have stated that his nephew was stopped by people and held for a short period of time and threatened about his political activities. He also states that to the best of his knowledge the applicant does not have any false cases or non-bailable warrants against him.
On 16 February 2023 the applicant provided additional commentary on the abovementioned interpretation problems. He also provided a copy of a bank statement in his name issued by a bank in Bangladesh and screenshots of [social media] posts and accompanying translated comments.
On 20 February 2023 the applicant provided further evidence of threatening comments made against his [social media] posts in 2018.
On 15 March 2023 the applicant provided the Tribunal with photographs depicting his attendance at a public protest organised by BNP Australia against the AL government in Canberra on 7 March 2023.
FINDINGS AND REASONS
Country of reference
The applicant provided a copy of his passport to the Department which verifies his claimed identity and nationality. Based on this documentation the Tribunal accepts the applicant is a national of Bangladesh.
Findings of Fact
Having carefully considered the available evidence the Tribunal considers the applicant has exaggerated and/or embellished certain aspects of his claims including that he continues to pay extortion money to his Awami League (AL) harassers in Bangladesh every other month and continues to act as [Position 5] of Jubodal in [Division 1] Thana despite living in Australia for several years.
Notwithstanding the above the applicant has particularised his claims in considerable written detail and has given a generally consistent oral account of the type and level of political involvement he had in Bangladesh including his work alongside [Mr A] in various election campaigns and his own rise through the ranks of the local Judobal branch of the BNP. His oral testimony is respect of the past harm he claims to have experienced in Bangladesh was also generally consistent with his written claims and accords with the type of tactics employed by the AL against its political opponents in Bangladesh (see the discussion of relevant country information below).
While the Tribunal was initially concerned that his uncle had introduced new claims of kidnapping and ransom during the hearing held on 20 January 2023 and put this to the applicant during the hearing as per the requirement at s.424AA of the Act, the post-hearing submissions about the quality of translation and the subsequent explanation provided by his uncle for his portrayal of certain events in Bangladesh alleviated that concern.
Much of the evidence provided by the applicant, including about his relationship with his uncle, his uncle’s political profile in Bangladesh, his claimed involvement with Jubodal and with the BNP in Australia is also supported by documentary evidence provided in submissions. While the veracity of letters of support from political organisations in Bangladesh can reasonably be questioned given the reported ease with which falsified documents can be obtained in that country[1], in this case, they are supported by credible oral testimony provided by the applicant’s uncle, whose bona fides are not in question. The Tribunal has therefore taken the letters from the BNP in Bangladesh into account in this case and considers this evidence further supports the applicant’s claims.
[1] DFAT Country Information Report, Bangladesh, 22 August 2019
Based on the available evidence, the Tribunal accepts the following:
-    The applicant is the nephew of [Mr A], a well-known BNP politician who is currently [an official] of the BNP in [District 1] and an Executive Member of the BNP Central Committee (nationally). This information is confirmed by various sources cited by the Tribunal.
-    [Mr A] is the subject of several, yet to be resolved, false cases brought against him by the Bangladesh government. It is well documented that false criminal charges and vexatious civil court procedures are used to harass members of the BNP[2] and having spoken to [Mr A] in detail about his experiences in this respect the Tribunal accepts his testimony is true.
-    The applicant has been groomed by [Mr A] for many years to follow in his political footsteps and has been encouraged by him to assume a leadership role in the BNP.
-    The applicant joined Jatiotabadi Jubodal, the youth wing of the BNP, in [Division 1] Thana in 2004 and with his uncle’s support secured various leadership positions within the organisation before assuming the role of [Position 5] in 2017.
-    The applicant gained a reputation as a BNP worker and office holder in his local area and was harassed and threatened by AL cadres on various occasions; most recently in 2017 he was attacked and assaulted and held at gunpoint by AL cadres in his shop; had his fishpond poisoned and received a threatening letter, warning him to cease his political activities.
-    The applicant was forced to pay a sum of money to AL cadres in 2017 prior to his departure from Bangladesh to avoid further harm.
-    The applicant is a genuine member of the BNP in Australia and holds an executive position in the organisation.
-    The applicant maintains contact with BNP members and supporters in Bangladesh.
-    The applicant was active on [social media] in support of the BNP in 2018 and received threatening posts from AL supporters in Bangladesh around that time.
Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future?
[2] DFAT Country Information Report, Bangladesh, 30 November 2022
The Tribunal notes that Bangladesh politics have long been dominated by the AL and the BNP and that the relationship between the two parties is characterised by longstanding enmity[3]. Inter-party political violence is ongoing though historically is most prevalent in the lead up to national or local elections[4]. Political conflict between the AL and its opponents peaked around the January 2014 elections - the most violent in Bangladesh’s history[5]. High levels of political violence continued throughout subsequent years[6].
[3] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016
[4] Country Policy and Information Note Bangladesh, Political Parties and Affiliation, UK Home Office, 25 September 2020
[5] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016
[6] See data at ‘Annual Human Rights Report on Bangladesh 2018, Odhikar, 8 August 2019
According to DFAT’s latest advice[7] the AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI). It is further reported that according to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. The report goes on to state that human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
[7] DFAT Country Information Report, Bangladesh, 30 November 2022
DFAT further reports that BNP members allege that they have been subjected to enforced disappearance and its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them by AL members occurs with impunity and DFAT assesses that allegations of violence against BNP figures are credible.
According to DFAT there are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. DFAT reports that those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges.
DFAT further reports that the patronage-nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members) and thus influence and capacity to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time but notes that this could change in the lead up to the national elections (due January 2024).
It has been submitted, that as in the past, the upcoming national election in 2024 is already resulting in increased harassment and violence directed at opposition parties and their supporters. Relevantly, a VOA news article included in submissions and titled “Bangladesh Arrests Thousands of Political Activists Ahead of Opposition Protest” (7 December 2022) indicates that the police in Bangladesh killed one person and wounded more than 60 people in Dhaka when they fired upon activists and members of the Bangladesh Nationalist Party. The article states that the situation across the country is volatile as the BNP gears up for major political protests. It is reported that the police have arrested thousands of BNP activists in a crackdown in the past month. A BNP Senior Joint Secretary was arrested along with 300 other party leaders and activists. Additional articles provided in submissions also indicate that BNP rallies in recent months have come under attack in different districts of the country resulting in further deaths and injuries of BNP activists. An Al Jazeera news article dated 11 October 2022 quotes a BNP spokesperson saying that thousands of party activists have been hit with “fake” charges of violence in a widespread crackdown by the authorities. It is reported in that article that political demonstrations have been marred by violence and that the police had not intervened when BNP rallies came under violent attack by activists of the ruling AL party.
Also provided in submissions is an excerpt from Human Rights Watch, World Report 2023 – Bangladesh, which notes that starting in August, there were increasing attacks against political opposition members, raising concerns about violence and repression ahead of upcoming parliamentary elections.
The Tribunal accepts the applicant was an active supporter and worker of the BNP in Bangladesh, principally through his support for his uncle and his active and lengthy involvement with the youth wing of the BNP. The Tribunal accepts the applicant has continued his close engagement with the BNP in Australia. The Tribunal also accepts the applicant maintains contact with BNP members and supporters in Bangladesh.
Considering the above, the Tribunal is persuaded that should the applicant return to Bangladesh he will continue his support for the BNP and very likely seek and gain with his uncle’s support, an appointment to an elected position within Jubodal or the party. In addition, the Tribunal is persuaded he would once again attend BNP meetings, canvass support for BNP candidates should they attempt to attest the upcoming election and participate in rallies or demonstrations held in support of the BNP and against the AL and the ruling government.
The Tribunal is satisfied that the behaviour described above will elevate the applicant’s political profile to that of a higher-level actor and will attract adverse attention from AL members and supporters, the ruling party and the security forces. The Tribunal is particularly cognisant of the fact that a national election is scheduled in early 2024, that the BNP has begun organising political protests in the lead up to that election and that already there are reports of heightened political tensions and violence aimed at BNP activists. In the circumstances, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm from ruling party activists, the state and/or it’s security forces, including possible arrest, physical violence and being the subject of false criminal charges because he supports the BNP and actively opposes the current government.
Various reports and news articles including DFAT’s latest country information report indicate that the AL uses the state machinery against its political opponents and reveal that the security forces have been active in arresting and detaining BNP members and activists, preventing them from expressing their political opinions and participating in activities which are seen to be anti-government.
In Bangladesh, ruling parties, both the AL and the BNP, and their affiliated organisations control state machinery and exploit it to supress their opposition while in office. The police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[8] An August 2021 Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances, and human rights organisations in the country assess that the RAB is responsible for more enforced disappearances than any other unit.[9] On 10 December 2021, the US government imposed sanctions on the RAB and several of its former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances.[10]
[8] BTI 2022 Country Information Report: Bangladesh, Bertelsmann Stiftung, 23 February 2022
[9] Bangladesh: 86 victims of Enforced Disappearance Still Missing, Human Rights Watch 16 August 2021
[10] Bangladesh: Stop Reprisals Against Victims, Activists, Human Rights Watch, 7 April 2022; UN: Ban Abusive Bangladesh Unit from Peacekeeping, Human Rights Watch 20 January 2022
As noted already, the AL also uses the courts and legal processes to suppress opponents including through laying fictitious charges against AL opponents.[11]
[11] Democracy decaying in Bangladesh, East Asia Forum 6 March 2018
In light of the country information discussed above the Tribunal is satisfied that effective protection measures will not be available to the applicant in Bangladesh against the harm he fears. The Tribunal is also satisfied that the harm the applicant fears relates to all areas of the country and that relocation within Bangladesh will not offer the applicant protection from the harm he is likely to face on return to Bangladesh.
For these reasons the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future for reason of his political opinions. Therefore, the Tribunal finds the applicant has a well-founded fear of persecution in Bangladesh and satisfies the criterion set out in s 36(2)(a) of the Act.
The Tribunal notes the applicant also raised fears of harm due to intra-party conflict and over a land dispute he has with his uncles. Given the above finding the Tribunal has not found it necessary to assess these claims further.
Section 36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. Based on the information before it, the Tribunal is satisfied that the applicant does not have a right to enter or reside in a third country.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tania Flood
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 1234

15 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction