1836965 (Refugee)

[2023] AATA 2537

1836965 (Refugee) [2023] AATA 2537 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1836965

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Tania Flood

DATE:31 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 May 2023 at 12:04pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party fearing harm from members and supporters of governing party – businessman producing products for candidates’ campaigns and candidate for local elections – attempt to re-open investigation into death of wife’s relative – extortion, threats, attacks and raids of business – detailed knowledge of party policies and activities and generally consistent account of incidents – political activities in Australia not for purpose of strengthening claims – extensive documentation and supporting statements provided – country information – members of family unit – wife’s mental health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 3 December 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Bangladesh, applied for the visas on 27 November 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.

3. The primary applicant appeared before the Tribunal on 4 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] (in-person) and [Mr B] (via telephone). The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether the applicants are persons in respect of whom Australia owes protection obligations.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

13. The second and third named applicants did not present claims of their own to the Department. They rely on the claims of the primary applicant (the applicant).

14. The applicant provided the following information in his Protection visa application dated 27 November 2017.

15. The applicant is from Dhaka. He identifies with the Islam faith. He is a fluent speaker, reader, and writer of Bengali. He travelled previously to India in November 2005 and in September 2013. He married his wife, the second named applicant, [in] 2010. He has a daughter born in Dhaka Bangladesh in [Year]. His parents, two brother and one sister reside in Dhaka. His wife’s mother and three sisters reside in Dhaka. The applicant has an uncle [Mr C] residing in Australia. He worked from 2001 to 2005 in the family [business]. From May 2005 to November 2014, he owned a [business]. He claimed that from December 2014 to October 2017, he sustained himself through his political work and family support. The applicant completed high school equivalent education in Bangladesh.

    Applicant’s claims

16. In a written statutory declaration dated 23 November 2019, the applicant offered a chronology of events that lead to him fearing harm at the hands of the Awami League (AL).

17. The applicant claimed that between 2001 and 2005, he did not face difficulties with the AL since the Bangladesh Nationalist Party (BNP) was in power. That after the BNP candidate [Mr D] lost the [Electorate] seat in 2008, the AL commenced attacks on active BNP leaders and members, as well as grassroots level members.

18. The applicant claimed that in 2001, he actively supported [Mr D] and [Mr E]. The applicant claimed that he worked tirelessly for the victory of [Mr D], and that the AL resented the applicant for this.

19. The applicant claimed that in 2005 he took over the family business. He stated that the AL first raided his [business] in 2011 and again in December 2015.

20. In 2005, the applicant’s wife’s [Relative] was killed by criminals. The BNP was in power, but the applicant’s wife’s family hesitated before filing a case to investigate into his death. The applicant was not yet married to his wife.

21. In 2009, the applicant became an extortion victim, like other businesspeople in the area, who had to pay bribes to the AL people monthly (5,000 taka).

22. In 2010, the applicant married his now wife. The applicant claimed that he started using his political connections to start a court case into the investigation of his [Wife’s relative]’s death. The applicant claimed that he spoke with [Mr D], [Mr B] and [Mr F] to attempt to do something about a court case.

23. In 2013, the applicant [produced products] for [Mr G] of the JCD. The following day the applicant’s house was vandalised.

24. In 2014, the applicant’s business was raided and he was forced to sell his business. He claims he got 1.2 million takas for the sale of the business. The applicant claims that in 2014 he moved to his [village], [Location 1] to contest the local elections as a BNP representative/leader. That he was encouraged by his uncle in Australia and the BNP leaders.

25. In 2016, the applicant continued his involvement with the BNP and supported [Mr H]. The applicant claims that because of this level of support, he was considered a BNP advisor and leader in the locality of [Location 1].

26. Around the same year, 2016, the applicant contacted a lawyer to seek justice for his [Wife’s relative]. He claims that because of these attempts, he received threatening calls on the life of his child.

27. In 2016, the applicant applied for a [Country 1] visa which was granted in February 2017.

28. On 25 August 2017, the applicant applied for an Australian visitor visa which was granted on 22 September 2017. He and his family left Bangladesh [in] October 2017.

    Evidence before the Department

29. The Department file contained the following documents relevant to the applicant’s claims:

    a.Applicant’s uncle, [Mr C], statement dated 17 September 2018. [Mr C] claimed that due to his active involvement with the BNP in [Country 2] from 1994 to 1998 and prior to that in Bangladesh from 1984 to 1988, the applicant’s family were perceived in their locality as active BNP members. [Mr C] reiterated the applicant’s claims regarding wealthy and businesspeople being victims of extortion of the AL groups. [Mr C] reiterated the applicant’s claims relating to the applicant’s attempts to re-open a court case into the investigation of the applicant’s [Wife’s relative]’s death. [Mr C] claimed that the applicant was an active BNP Australia member and that the applicant attended a public protest against the AL and the Bangladeshi PM Ms Sheikh Hasina which he claimed was widely published in Bangladesh and in Australia.

    b.[Work-related document] of 21 May 2005

    c.Trade licence and renewals for ‘[Business name]’ [business] from 2005

    d.Letter from [Mr B], [Official 1], [name] Thana Chatradal dated 10 May 2018. [Mr B] claimed that the applicant was an active BNP supporter and worker inspiring others at grassroot level. He claimed that the applicant used to support the BNP through [doing a job task] free of cost for BNP’s candidates’ campaigns. That the applicant was the victim of extortion at the hands of the AL cadres and that the applicant’s house was raided.

    e.Letter from [Mr I], [Official 2] BNP (undated). [Mr I] claimed that the applicant participated in political activities for the BNP in 2002 and 2014. He claimed that the applicant used to support the BNP through [doing a job task] free of cost for BNP’s candidates’ campaigns. He claimed that after the AL came into power in 2008 the applicant was harassed by the AL terrorist group. He claimed that the applicant’s business was raided in 2011 and 2013.

    f.Letter from [Mr F], [Official 2] Dhaka District BNP (undated). [Mr F] claimed that the applicant played a special role in [Mr F]’s win of the Upazilla’s seat in 2009 and in 2014. [Mr F] claimed that this was the reason the applicant was harassed and targeted by the AL. [Mr F] claimed that the applicant’s [Wife’s relative] was an active member of the BNP, who donated to the party and as a businessman was killed by the AL cadres in 2005. He claimed that because the applicant attempted to re-open the court case into the investigation of his [Wife’s relative]’s death the AL targeted the applicant.

    g.Letter from [Mr J], [Official 1], BNP [Location 1] and from the [Official 2] [name] Upazilla BNP Branch (name not translated) (undated). [Mr J] claimed that the applicant started suffering from physical and mental torture from the AL cadres in 2008 and more actively in 2013. He claimed that the applicant’s [Wife’s relative] was an active member of the BNP, who donated to the party and as a businessman was killed by the AL cadres in 2005. He claimed that because the applicant attempted to re-open the court case into the investigation of his [Wife’s relative]’s death the AL targeted the applicant in July 2017.

    h.Letter from [Mr K], [Official 2], BNP Australia dated [September] 2018. [Mr K] claimed that the applicant had been actively involved in the BNP Australia under his leadership attending meetings and other activities organised by the BNP Australia including protests against PM Sheikh Hasina when visited Sydney in 2018.

    i.Photographs of applicant’s political activities in Australia and in Bangladesh.

    j.Letter from [Mr L], advocate in Bangladesh, dated 14 May 2018. The signatory confirmed the death of the applicant’s [Relative] and the surviving wife and daughters. The letter stated that terrorists murdered the applicant’s [Wife’s relative], in his own house.

    k.Transcript of post-mortem statement provided in [Court] [in] July 2006 regarding the applicant’s [Wife’s relative]’s death.

    l.Autopsy report on the death of the applicant’s [Wife’s relative] dated [January] 2005.

    m.Newspaper article regarding the applicant’s [Wife’s relative]’s murder (undated).

    n.Newspaper clippings in foreign language.

    o.Photograph of a protest against the killing of the applicant’s [Wife’s relative] (undated).

    p.Judgment of the [Tribunal] in relation to the prosecution of the applicant’s [Wife’s relative]’s murder, dated [August] 2006. The judgment indicated that there were identified accused parties of the murder of the applicant’s [Wife’s relative]’s death. That after oral and material evidence were examined, there was no logical and consistent reason supporting the argument of the identified parties being guilty of the murder of [the applicant’s wife’s relative] beyond reasonable doubt.

    q.Health Summary from [a doctor], [Suburb] NSW regarding applicant 2, dated 7 September 2018.

    r.Letter from registered psychologist [regarding] the applicant, dated 6 September 2018.

    s.[News source] online article and photograph regarding Sydney protests against AL leader Sheikh Hasina, posted [in] May 2018.

    t.Representative submission from 14 September 2018. The applicant’s representative quoted numerous links and extracts relating to Bangladesh country reports and information between 2004 and 2018 to argue that the applicant would face harm because he was of a PSG: diaspora involved in activities against the AL government, and because of the applicant’s political opinion being someone who shares the BNP ideology.  The sources quoted supported generalised and broad arguments of increased political suppression by the AL which impacted human rights in Bangladesh. It was argued that active members of the opposition faced a high risk of arrest and physical violence.  It was argued that the AL also used a new para-military force (Rokkhi Bahini) to target businessmen to extort money.  The applicant’s migration agent also submitted country information relating to the security situation in Bangladesh, the treatment of BNP members and supporters, extortion by the ruling AL, corruption amongst law enforcement as well as fraudulent documents in Bangladesh. Extracts from AAT decisions were also submitted and case law on assessing credibility in refugee cases.

    u.Representative submission dated 20 September 2018 (email). The representative argued that there was no country information supporting the delegate’s negative conclusion at the Protection visa interview on the authenticity of the political parties and court documents submitted by the applicant. The representative relied on the DFAT report on Bangladesh from 2018 and on the Canadian country reports which stated that the prevalence of fraudulent documents related to identity documents rather than documents of a judicial and political nature.

    v.Representative submission dated 20 September 2018 (with letterhead). The applicant’s representative argued the Briginshaw case to support the argument of taking caution when making negative findings of credibility in the applicant’s case.

    w.Applicant’s marriage certificate.

    x.Applicant’s son’s birth certificate.

    The Protection visa interview

30. The applicant and the second named applicant both attended an interview on 19 September 2018 with the assistance of a Bengali speaking interpreter. The applicant’s legal representative from Parish Patience Immigration Lawyers and case officer were also in attendance. The applicant’s wife was interviewed first and separately from the applicant. The following is summary of the discussion points.

31. The applicant confirmed at interview that he was fully aware of the contents of his application and statement of claims. The applicant provided the officer with a copy of his, his wife’s and his daughter’s birth certificate and marriage certificate.

32. The Department officer discussed with the applicants his claims in relation to his business and harm suffered at the hands of the AL, his political involvement with the BNP, and the repercussions of having attempted to reopen his [Wife’s relative]’s murder case.

33. Regarding his [business] and the attacks on it by the AL, the applicant said that the business was established in 1997 by his father and since then they [produced BNP products]. He said that the family never received payment from the BNP, that he last [produced a product] for [Mr G], the local leader, in November 2013. Those [products] were [distributed] in his area. The following day there was an attack at his home by an AL terrorist, people looked for him and his [cousin]. The AL people threatened his family because he was not at home, they broke the windows and shot at the front gate of the house. The applicant said that since that day he was cautious about [producing BNP products]. The applicant said that the AL group used to take bribe money from him, that in July 2014 the police attended his business and then he decided to close his business down. The applicant said that he found a buyer for his business in November. The applicant confirmed that he sold his business because these people used to demand extortion money, they attacked the business, arrested his workers, they would break things and the police raided the business twice (2011 and in December 2013).

34. The applicant said that he started paying bribes in 2009. It was put to the applicant that his written statement indicated the extortions commenced in 2011 and that his wife said that he started paying bribes before they got married. The applicant agreed, that after coming into power the AL started asking for money.  The applicant then said that the extortion started in 2009 when he used to pay $5,000 taka but the AL sometimes demanded more to cover their extra expenses. In 2011 they asked for more than $5,000 and that after negotiations he could not pay the bribe and his business was attacked. The applicant said that May 2014 was the last time he paid extortion money. He said that he stopped paying the money then because the business slowed down and he could not afford the extortion. The AL then attacked his business with the police because he missed payment. He was threatened to have false cases filed against him if he did not pay $20-25,000 taka.

1. The applicant confirmed that his business was raided in 2011, 2013 and 2014. He was asked why he was allowed to operate by the AL after they raided his business in 2011 for two more years and then in 2014 for another year. The applicant said that he reached a negotiation with the AL regarding the monthly payments.

2. The applicant said that he was targeted because people could see that the BNP [products] were being [produced] at his business because vans would wait for the [products] to come out of his business to be [distributed] in the area. The applicant said that police raided his house twice that year (2018 when the interview took place) in January and February looking for the applicant and that his father had to pay money to them. When asked why he did not add this information when asked at the beginning of the interview if there was anything he wished to add to his claims, the applicant responded that he thought the officer meant documents not information.

3. The applicant was asked why the three raids were so far apart from each other and why they happened during that period of time. The applicant answered that problems arose all the time: parked trucks in front of his business, that the front door of this business would be locked, that in 2013 problems were significant because they were related to the elections.

4. The applicant was then asked about the 2013 attacks on his business, whether they were either caused by the missing payments (extortion money) to the AL groups or related to the national elections. The applicant answered that they were all related and combined. That the problems increased in the period of 2009-2014 because things went out of control after the election.

5. Regarding his political involvement, the applicant was asked about the financial contributions he made to the BNP. The applicant responded that he could not tell exactly when he commenced this but said that he had always been a supporter. He said that he would pay for transportation or pay for food for meetings held by the BNP. The applicant said that during elections supporters made more contributions, he would advocate for the BNP, gather people to attend meetings, he would take care of daily expenses, morning teas, and similar. The applicant confirmed that he [produced the BNP products] for free, that he would arrange food for volunteers and leaders at the polling stations. He was asked whether he had made financial contributions to the BNP in Bangladesh or BNP Australia. The applicant said he had sent money to his family from Australia to his father to be then sent to the BNP. The applicant clarified that he sent money to Bangladesh to support his family, but also some money for the party.

6. The applicant offered some level of detail regarding the BNP’s ideology, he spoke about the level of involvement of his uncle with the BNP [Country 2] and then with the BNP Australia. The applicant was asked about his involvement with the BNP Australia. The applicant said that he first had contact with the BNP Australia through the 7 November program or event which included a Sunday event, back in 2017. The applicant said that his role with BNP Australia was simply as a general member who attended the meetings and discussions regarding the following elections.

7. Regarding his [Wife’s relative]’s murder case, the applicant said that this happened before he married his wife. He said that all he knew about it was information told to him by his in laws and his wife. He said that he knew that his [Wife’s relative] was a well-known businessman who supported the BNP by hosting meetings at his place and donating money to the party. He said that he was killed on his way home one night from work, that the AL cadres attacked him with a [weapon], took a large amount of money he carried with him and left him dying on the street in a pool of blood. The applicant said that after he married his wife and learnt about the court’s ruling that the alleged criminals were found not guilty, he spoke to his leaders and to a lawyer in 2016, and since then he spoke with witnesses and gathered evidence and information about the case. The applicant claimed that people in the town learned about his intention to reopen the case and that the AL cadres attacked him one day in 2016.

   Evidence before the Tribunal

   Representative submissions dated 27 April 2023

8. The representative argued that the applicant will suffer significant harm because he is a BNP activist; that he is not an ordinary member of BNP, he has a significant political profile. The representative also submitted that the applicant has the active intention of seeking justice for the killing of his [Wife’s relative] by the AL.  Further, that the applicant wishes to continue his involvement with the BNP if he is to return to Bangladesh.

9. The representative cited country information reports to support the argument that the applicant will suffer ongoing persecution as a BNP member and activist. That based on a Q&A paper prepared by the Department on the request of the AAT, the applicant like those who participate in political activities supporting the BNP, faces a higher risk of arrest and physical violence, both from security forces and ruling party activists.  Other sources cited by the representative in support of the submissions were the Human Rights Watch 2022 and 2023 reports, news articles from Prothomalo news, Al Jazeera news, and the NewAge news, and DFAT’s (Department of Foreign Affairs and Trade) Country Information Report Bangladesh 2022.

10. It was argued that the applicant would suffer attacks as an opposition political leader or worker and that BNP party activists continue being hit with fake charges of violence in a widespread crackdown by the Bangladeshi authorities. 

    Applicant’s statutory declaration dated 23 April 2023

11. The applicant claims that he has been active on social media voicing his political views in Australia. He claims he has attended a number of politically related events since 2019 for which he attached photographic evidence, including financial contributions to the party. The applicant claims that he has been attending meetings with the BNP where he has been voicing his ideas ahead of the 2024 elections in Bangladesh. He states that these upcoming elections are a good opportunity to see the AL lose and restore democracy in Bangladesh. He further claims that if the BNP wins the 2024 election he could get his [Wife’s relative]’s case reopened and seek justice for his wife’s family.

12. The applicant claims that he holds the position of BNP Australia [Official 3]. He claims that in this role he encourages BNP activists to attend BNP meetings and get involved in BNP activities.

13. The applicant claims he believes the AL monitors what BNP activists do in both Bangladesh and in Australia. He claims that the AL uses social media to track BNP activists and their profiles.

14. The applicant claims that he would face practical difficulties in moving to other areas and therefore, it is not reasonable to relocate due to the following reasons:

    a.His wife is facing and experiencing significant mental health issues of which the applicant claims he can provide evidence; and

    b.He has a small family.

    Letter from [Mr B], Ex-[Official 1], [name] Thana Chatradal dated [April] 2023

15. The letter contents are similar to the letter previously submitted by the applicant to the Department, although that letter was dated 10 May 2018.

    Letter from [Mr Q] dated 9 April 2023

16. [Mr Q] claims to be the applicant’s lawyer. He states that the applicant approached him in 2016 about a case (no [Number]) dated [01].2002 with GR no [Number]. He states that the six accused parties in this case were acquitted. He states that after they were released and found not guilty, they harassed and threatened the applicant and his family.

17. [Mr Q] claims that the applicant is in continuous contact with him about this case and that last 2 April 2023, the applicant contacted him about filing an appeal in the higher courts against the acquittal of the six alleged murderers of the applicant’s [Wife’s relative] after the next election in January 2024.

    Letter from [Mr A], [Official 1] of Bangladesh Nationalist Party (BNP) Australia dated [April] 2023.

18. [Mr A] states that he has known the applicant since 2017 and that the applicant became the [Official 2] of NSW Branch in July 2018. He states that in 2022 he was appointed as [an Official 3] of BNP Australia which is claimed to be a higher position looking after the BNP Australia activities. [Mr A] claims that the applicant has been involved in the organisation and coordination of BNP Australia events such as: fundraisers, meetings and protest, programs including Ziaur Rahman’s death anniversary, Ex-Prime Minister Begum Khaleda Zia’s release, National Revolution and Solidarity Day, BNP anniversary, and 16th of December National Day of Bangladesh.

19. [Mr A] states that the applicant’s uncle is known to him and that through the applicant’s uncle he became aware of the applicant’s [Wife’s relative]’s killing.

    Letter from [Mr F] dated [April] 2023

20. [Mr F], [Official 1] of the BNP in the Dhaka district states that he knows the applicant, that the applicant was an active member and worker of the BNP.  He states that the applicant worked actively in support of the BNP candidate in all the national parliamentary elections and used to [produce products] at his own [business].

21. [Mr F] states that he himself contested the Upazilla election for the post of Chairman in 2009 and 2014 and that he won comfortably. He states that after winning these elections in 2009 and 2014, the AL commenced harassing and torturing BNP leaders, workers and supporters.  He states that the applicant was targeted by the AL.  [Mr F] makes a connection to the murder of the applicant’s [Wife’s relative] in 2005 and states that the applicant took steps to attempt to reopen the court case into the murder which resulted in the AL attempting to kill the applicant near his [Wife’s relative]’s house in July 2017. 

    Letter from [Mr R], [Official 4] Dhaka District Jubodal, ex-[Official 1] [name] Upazilla dated [April] 2023

22. [Mr R] states that the applicant is an active supporter and donor of the BNP and he continues to offer guidance and is in regular communication with the BNP in Bangladesh via messaging platforms.  He states that the applicant provides financial support to the BNP via his [father]. 

    Other material submitted

23. The applicant also submitted various screenshots depicting participation at online forums or meetings or chats.

24. The applicant also submitted various screenshots of [Social media] posts from a [name deleted] between the years 2019 and 2022. These appeared to be posts sharing news updates, pieces of news and related political content from Bangladesh as well as events at or by BNP Australia.

25. Donations via bank transfer dated 25 November 2011 ($100) and 27 April 2023 ($200) from [name deleted].

26. STARTTS report on the applicant’s wife dated 24 April 2023. The report stated that the applicant’s wife was assessed first on 22 October 2020, then on 24 April 2023. [The applicant’s wife] was found to have deteriorated in her anxiety, stress, trauma and psychotic disorders in the 2023 report.

    The Tribunal hearing

27. The applicant attended a hearing with the Tribunal on 4 May 2023 to present oral evidence and arguments in support of his case.  During the hearing discussions were held about the applicant’s background in Bangladesh; the current circumstances of his family members in Bangladesh; his business ventures in Bangladesh; his claimed support for the BNP in Bangladesh; the past harm he claims to have suffered on account of his political support for the BNP; his claimed political activity in Australia and the reasons why he fears returning to Bangladesh.  The applicant provided extensive oral testimony in respect of those issues and the Tribunal also heard oral evidence by telephone from [Mr B], Ex-[Official 1], [name] Thana, BNP Chatradal.  The Tribunal also heard oral evidence from [Mr A], [an Official 1] of BNP Australia.

    Post-hearing submission

28. On 25 May 2023 the applicant’s representative provided a final submission on the applicant’s behalf.

29. In further support of his claimed political activities in Australia it is noted that the applicant attended a recent event on 21 May 2023 organised by BNP Australia called ‘Take Back Bangladesh Platform’ to agitate for the restoration of democracy and human rights in Australia.  He attached photographs depicting the applicant’s attendance at this event.

30. It is further noted that the applicant attended a meeting [in] June 2023 with BNP leaders in Australia which was organised to discuss the organisation of Zia Ur Rahman’s martyrdom anniversary event.  He attached photographs depicting the applicant’s attendance at this meeting.

31. It is reiterated that the applicant is active on social media platforms where he expresses his support for the BNP and opposition to the AL.  Attached are excerpts which show the applicant voicing his opposition to the AL on [Social media].  It is submitted that the AL government monitors social media and arrests people who criticise its policies and activities.  It is noted that in the first 3 months of 2022, 17 people were arrested under the Digital Security Act for allegedly posting critical comments against the Prime Minister, high ranking officials of the government or their family members. Attached are various news report and a recent report by Odhikar to support this claim.

32. It is noted that in 2020, a senior BNP leader, Ms Nipun Roy Chowdhury, visited Australia and the applicant met with her along with other leaders to discuss the political activities of the BNP.  He attached photographs depicting the applicant’s attendance at an event with Ms Chowdhury.   It is further noted that the applicant’s witness, [Mr A], an Australian BNP leader, stated during the hearing that Ms Chowdhury spoke to him about the applicant’s BNP involvement in Bangladesh.   It is submitted that a senior leader of the BNP will not discuss or talk about a political activist unless that activist has a good political profile which is known to leaders.  It is further submitted that the applicant’s contribution to the BNP’s political activities, particularly through his [business] should be given weight and consideration.

33. The applicant’s participation in a rally against the Sheikh Hasina in Australia in 2018 is repeated and it is submitted that his attendance is supported by an attached online news article in which he features.

34. It is submitted that the applicant’s political involvement in Australia has not been for the purpose of strengthening his application for a Protection visa and it therefore should not be disregarded under s 5(J)(6) of the Act.

35. It is submitted that there is an active AL branch in Sydney and evidence is attached in support of this claim including a copy of screenshot of an AL Australia [Social media] group and a news article.

36. It is repeated that the applicant continues to engage with BNP members and activists in Bangladesh and provides financial assistance to the BNP.  Attached is a letter from [Mr R], [Official 4] of Dhaka District Jubodal and ex-[Official 1] of [name] Upazilla Chatradal Dhaka District to this effect.  

37. It is noted that the applicant has advised that the accused number 1 in the murder trial of his [Wife’s relative] is [Mr T]’s wife who is a local AL leader in [name] Dhaka [Electorate] and that accused number 6, [Mr U], is a close associate of [Mr V], [a person associated with] Prime Minister Sheikh Hasina.

38. Evidence previously provided in respect of the applicant’s attendance at Zoom meetings with BNP leaders in Bangladesh is attached and it is noted that the attached screenshots show the applicant was variously muted and unmuted during various parts of those meetings.  It is submitted that the attached screenshots are evidence that the applicant was in direct conversation with senior BNP leaders during those meetings.   It is submitted that this involvement shows the applicant’s political profile is recognised by senior leaders in the party.

39. Submissions are also made in respect of the assessment of credibility.

    FINDINGS AND REASONS

    Country of reference

40. The applicants provided copies of their People’s Republic of Bangladesh passports to the Department which verify their claimed identities and nationalities.  Based on this, and in the absence of any information to the contrary, the Tribunal accepts the applicants are nationals of Bangladesh and has assessed their claims against Bangladesh. 

    Findings of Fact

41. The applicant particularised his claims in considerable written detail in submissions to the Department and the Tribunal and apart from some minor exceptions, he has given a generally consistent account of the type and level of political support he gave to the BNP in Bangladesh including the contributions he made through his [business].  He demonstrated knowledge of the BNP’s political charter and was able to detail the names of BNP and AL candidates in the political electorates he claimed to work in previously.  His oral testimony in respect of the past harm he claims to have experienced in Bangladesh was generally consistent with his written claims and also consistent with country information reports about the treatment of BNP members and supporters by the ruling party and its supporters in Bangladesh.  While the applicant’s wife did not attend the Tribunal hearing she attended the interview with the delegate.  The Tribunal has had regard to the record of that interview and notes that her oral testimony regarding her husband’s support for the BNP and the claimed events which followed is also generally consistent with the applicant’s written and oral evidence. 

42. The applicant’s claims in respect of his political involvement and the claimed harm he subsequently suffered is also supported by various letters from persons within the BNP in Bangladesh and Australia.  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] given the consistency and overall strength of the applicant’s evidence in this case the Tribunal has placed some weight on this evidence.  Similarly, the oral testimony of [Mr B], which again was consistent with the applicant’s testimony, has also been afforded some weight.

    [1] DFAT Country Information Report, Bangladesh, 22 August 2019.

43. Based on the available evidence, the Tribunal accepts the following:

    -    The applicant comes from a family of BNP supporters and was exposed to BNP politics from a young age.  He personally commenced supporting the BNP in around 2001 at the time of the then national election.

    -    The applicant’s family owned and operated a [business] and produced [products] for the BNP free of charge for many years.  The applicant opened his own [business] in 2005 and continued the family tradition of supporting the BNP in this manner.  

    -    The applicant’s support for the BNP in Bangladesh also included election campaigning (door to door distribution of voter slips and canvassing voters for their support), recruiting participants to attend BNP meetings and rallies, personal participation in BNP meetings and political rallies and some limited financial support for party activities. 

    -    From around 2009 the applicant became a victim of extortion by AL members due to him being a businessman who supported the BNP.

    -    The applicant’s [business] was raided by the police in around 2011, 2013 and 2014.

    -    The applicant’s family home came under attack from AL members in 2013 after he [produced] and helped to distribute [products] for a prominent BNP student leader, [Mr G], who was vocal in his condemnation of the AL government and its corruption.

    -    The applicant sold his [business] in 2014 and returned to his family’s village in [Location 1] in 2015.

    -    The applicant’s [Wife’s relative] was murdered in Bangladesh in 2005 and he attempted to have the murder case re-opened around 2016.  The applicant was physically beaten and threatened as a result of his enquiries on one occasion.

    -    The applicant and his family moved to [Bandar], Narayangang where he lived with an aunty for 4 months prior to departing Bangladesh.

    -    The applicant is a member of the BNP in Australia and since 2022 he has held the position of [Official 3].

    -    The applicant regularly expresses his support for the BNP, and opposition to the AL on [Social media].

    Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future?

    Harm for attempting to reopen [Wife’s relative]’s murder case

1. As noted above, the Tribunal accepts, on the available evidence, that the applicant’s [Wife’s relative] was murdered in 2005 and that the accused were acquitted of their involvement in subsequent court proceedings.  Based on the information provided post-hearing the Tribunal is prepared to accept that AL identities may have been involved in his murder.

2. The Tribunal initially had some doubts about the applicant’s interest in this case given the murder occurred five years prior to his marriage and the passage of a further six years after his marriage before he took an active interest in the case.  However, he has provided a generally consistent account of the matter and has produced supporting evidence of his involvement in pursuing legal proceedings in this respect.  For this reason the Tribunal is prepared to accept he attempted to re-open the case in 2016 and fell victim to a physical attack in his local area for this reason around that time. 

3. Notwithstanding the above, during the hearing the applicant stated that he will not attempt to reopen the case until the BNP returns to power.  He said he remains committed to seeking justice for his wife’s family, but he is aware that justice will not be served if he makes any attempts to do so while the AL remains in power. 

4. Having heard his testimony and having had regard to his statutory declaration and the latest letter from his lawyer which also indicate that any further action would be on the proviso that the AL was no longer in power, the Tribunal put it to the applicant that it might form the view that he will not take any further action in the matter unless there is a change of government.  The applicant agreed with the Tribunal’s observation.  The applicants representative interjected and pointed out that the applicant has always said he will continue to pursue the case if he returns to Bangladesh.  On further questioning the applicant clearly agreed he would only attempt to reopen the case if the BNP comes to power.

5. As discussed with the applicant, if his [Wife’s relative] was a BNP supporter and the perpetrators of the murder were aligned with the AL and he attempts to reopen the case under a BNP led government it appears unlikely he will suffer any harm.  In the event he is threatened by the accused it also appears likely he could avail himself of state protection given his political allegiances if the BNP is ruling the country. 

6. The Tribunal is not satisfied that the applicant will seek to reopen the case unless there is a change of government in Bangladesh and in such circumstances if he were to do so it is not satisfied that he will suffer any harm because of his actions.

   Harm for political reasons

7. 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.[2]  Inter-party political violence is ongoing though historically is most prevalent in the lead up to national or local elections.[3]  Political conflict between the AL and its opponents peaked around the January 2014 elections - the most violent in Bangladesh’s history.[4] High levels of political violence continued throughout subsequent years.[5] 

   [2] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016.

   [3] Country Policy and Information Note Bangladesh, Political Parties and Affiliation, UK Home Office, 25 September 2020.

   [4] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016.

   [5] See data at ‘Annual Human Rights Report on Bangladesh 2018, Odhikar, 8 August 2019.

8. According to DFAT’s latest advice,[6] 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. 

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

9. 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. 

10. 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. 

11. 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). 

12. News sources indicate that as in the past, the upcoming national election scheduled to be held in 2024 is already resulting in increased harassment and violence directed at opposition parties and their supporters.  A VOA news article 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.

13. 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.

14. As noted above the Tribunal accepts the applicant was a supporter of the BNP in Bangladesh, principally through the support he provided through his [business], but also during past election campaigns. The Tribunal also accepts, based on his oral and documentary evidence that the applicant has continued his engagement with the BNP in Australia. 

15. The Tribunal acknowledges the applicant has expressed an interest in furthering a political career with the BNP in the future.  He stated previously that he explored the possibility of seeking nomination as a local BNP candidate when he returned to his home village in 2015.  He provided a plausible account of his thinking in this regard noting the challenges he would have faced had he pursued this aim in a more hotly contested arena such as Dhaka.  He also noted that while running his business he was content to limit his political activities to those described.  The applicant reiterated this aspiration during the Tribunal hearing, albeit acknowledging that it would take some time as he would need to work his way up through the ranks of the BNP. He stated during the hearing that he believes his elevation from ordinary member to an executive member with the BNP in Australia will be of assistance in this regard.  During the hearing he also testified that he is continuing efforts to raise his political profile through his participation in Zoom meetings between BNP leaders in Australia and Bangladesh and he has provided documentary evidence which appears to support this.  

16. The Tribunal has considered the applicant’s testimony but is not persuaded that a relatively low-level executive member position with the BNP in Australia will put the applicant on an automatic trajectory for a leadership position in Bangladesh. Nor is the Tribunal persuaded by the applicant’s testimony that his participation in a Zoom meetings which happened to be attended by BNP leaders in Bangladesh, means that his elevation to an elected position is assured. However, the Tribunal is persuaded that the applicant does have an interest in pursuing a higher role within the party and that there is a possibility he will seek to do so in the future.  

17. Having considered the available evidence, the Tribunal is satisfied that should the applicant return to Bangladesh now or in the reasonably foreseeable future, he will wish to show his support for the BNP along the lines of his past and present involvement. While he no longer owns and operates the [business] which the Tribunal considers formerly raised his profile with the AL, the Tribunal is nevertheless persuaded he would once again attend BNP meetings and publicly canvass support for BNP candidates should they attempt to contest the upcoming election.  Irrespective of whether the BNP fields candidates in the 2024 election it is clear from the above reporting that the party is gearing up its public presence and opposition to the ruling party in the run up to that election. The Tribunal considers the applicant will be motivated to participate in BNP activities aimed at opposing the AL, including attending protest marches and rallies, as he considers this election to be pivotal to the restoration of democracy in Bangladesh. As noted above there are already reports of heightened political tensions and violence aimed at BNP activists involved in such activities.  

18. The Tribunal considers the applicant’s political activities will heighten the risk of him being identified by AL members and/or state authorities as a supporter and worker of the BNP. While DFAT assesses that those who engage in lower-level BNP activity are less likely to attract government or AL supporter attention it is nevertheless acknowledged that allegations of violence against BNP supporters are credible and that any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges.  Given that inter-party violence is historically accentuated in the lead up to and during national elections, the Tribunal considers a cautious approach is warranted at this time.

19. The Tribunal has also had regard to the applicant’s activity on social media.  According to DFAT,[7] social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence.  It is not possible to predict accurately the kinds of social media or users who would attract such attention.  However, sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. Journalists and others with a profile are much more likely to have their social media targeted.

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

20. DFAT goes on to state that low-profile social media users are less likely to be targeted, although it does happen occasionally. For example, a social media user and university student was beaten to death by the Bangladesh Chhatra League, the student wing of the AL in October 2019. The posts he made were about India-Bangladesh relations and were not about the AL as such. A teenager was arrested under the Digital Security Act (DSA) in April 2021 after posting a music video that mocked Prime Minister Hasina and visiting Indian Prime Minister Narendra Modi. Hundreds of people who have posted anti-government messages online have been arrested under the DSA.

21. DFAT further notes that those who use online platforms to organise street protests or use social media as a platform for protest are monitored. These incidents should be understood in the context of a very large number of protests, many of which are violent.  There is not a clear pattern by which to determine which protests will attract government attention.  The profile of protesters matters – the sheer size of most protests means that authorities are unable to target most attendees but organisers are more likely to be targeted.  DFAT assesses that those involved in organising protests or using social media platforms to protest against the government face a moderate risk of official discrimination. 

22. The Tribunal has closely reviewed the [Social media] posts provided in submissions.  They are numerous and span several years and include posts about political protests he has attended in Australia;  about political protests which have taken place in Bangladesh which celebrate the BNP and champion the BNP’s leader Begum Khaleda Zia; are critical of the role of Bangladesh security forces; urge protest action in support of Begum Khaleda Zia’s release and the BNP generally; are critical of the AL’s excessive use of violence against opposition members; label the AL’s Chhatra League a terrorist group; attack the personal  integrity of AL members and supporters; criticise the 2018 electoral process; urge electoral support for the BNP and criticise at least one minister of the ruling government. 

100.   The Tribunal acknowledges DFAT’s advice above that the government does not have the capacity, nor perhaps the interest, to monitor all social media posts and that the risk of a post being noticed and given adverse attention is greater for higher-profile people.  However, available evidence indicates that low-profile social media users are occasionally targeted and that people who organise protest action online are monitored.  The Tribunal considers the topics which are posted by the applicant are among those considered by DFAT to likely attract government attention.  The applicant should not be expected to alter or refrain from expressing his political beliefs in order to avoid suffering harm.   Should he continue his social media activity on return to Bangladesh the Tribunal considers there is a chance, which is not remote, that he would attract adverse attention from the authorities which could result in him being arrested and charged with an offence under the DSA or falling victim to physical violence.

101.   For all the above reasons, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm from ruling party activists, the state and/or its security forces, including possible arrest and physical violence because he supports the BNP and actively opposes the current government.  

102.   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. 

103.   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]  The AL also uses the courts and legal processes to suppress opponents including through laying fictitious charges against AL opponents.[11]

[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.

[11] Democracy decaying in Bangladesh, East Asia Forum 6 March 2018.

104.   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 on account of his political opinion.  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.

105. 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 opinion. 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.

106.   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

107. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

108. The other applicants have not made claims of their own and are relying on the claims of the applicant. The Tribunal is not satisfied that they are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the spouse of the applicant and that the third named applicant is the child of the applicant. The Tribunal is satisfied that they are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a Protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

109.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

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.

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