1836973 (Refugee) [2024] AATA 4299 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN 0961664)
CASE NUMBER: 1836973
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Peter Papadopoulos
DATE:13 March 2024
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 13 March 2024 at 5:01pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter and financial contributor to opposition party – intimidation, threats, extortion and attack by supporters of government party – travel to other countries and delay in applying for Australian visa and departing after visa granted – committee, protest and social media activities in Australia, and proposed activities if returned – mental health and treatment – detailed political knowledge – some vague, inconsistent, exaggerated and new claims and evidence – supporting documentation and statements – raised profile – members of family unit wife and child – second Australian-born child not an applicant – country information – monitoring of social media – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65, 423AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 2ACASES
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
1836961 (Refugee) [2023] AATA 1234Any 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
The first named applicant (hereinafter referred to as the applicant) is a [Age]-year-old male who claims to be a national of Bangladesh. The second named applicant is female, married to the applicant and also claims to be a national of Bangladesh. The third named applicant is the dependent child of the applicant and second named applicant.
The applicants arrived in Australia [in] October 2017 as the holders of Subclass 600 Visitor visas and have not departed since that date.
On 3 November 2017, the applicants applied for a Subclass 866 Protection (Class XA) visa (protection visa).
On 3 December 2018, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants are not persons to whom Australia owes protection obligations.
This is an application for review of the delegate’s decision.
The applicant attended a Tribunal hearing on 15 August 2023, which was adjourned and later resumed on 16 August 2023.
The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application form that was completed by the applicant on 3 November 2017, the applicant is a [Age]-year-old Bangladeshi national who:
· was born in Dhaka, Bangladesh.
· married the second named applicant on [Date].
· has the following family members in Bangladesh:
o [Ms A], the applicant’s mother ([DOB])
o [Mr B], the applicant’s brother ([DOB])
o [Mr C], the applicant’s brother ([DOB])
o [Ms D], the applicant’s sister (DOB was not provided)
o [Ms E], the applicant’s sister (DOB was not provided).
· lived at the following addresses prior to travelling to Australia:
o [Address 1], [Thana/sub-district], Dhaka, Bangladesh
o [Address 2], [Sub-district], Dhaka, Bangladesh
o [Address 3] [Sub-district] Dhaka, Bangladesh.
In relation to his claims for protection, the applicant made a statutory declaration on 2 November 2017 in which the following claims were raised:
Profile as a BNP supporter, financial contributor and anti-Awami League activist
· He is a political activist and supports the Bangladesh Nationalist Party (BNP). He supported the BNP from a young age through political activities and financial contributions. He gradually became ‘a known BNP cadre in the eyes of the Awami League’ because he:
osupported [Mr E] when he contested the national election in 2008 by organising meetings and providing financial contributions for banners and leaflets.
oattended programs and meetings organised by [Mr F] who was the [Branch] President of the BNP;
osupported [Mr G], the BNP candidate who contested the April 2015 City Corporation Election, by campaigning door to door and providing financial contributions to prepare banners, meetings and leaflets.
Profile as a wealthy businessman
· He has a considerable business profile in Dhaka, Bangladesh and is perceived to be a wealthy businessman. After completing his studies, he initially looked after his brother’s business. He then started his own business, [Business name 1], in Dhaka. As his business grew, he became of interest to the ruling Awami League (AL).
Intimidation, threats and extortion
· He was targeted, intimated and threatened by the AL ‘due to [his] political opinion and forced to provide financial contribution to the Awami League and its affiliated criminal gang’. After he and his wife were married in [Year], his wife received telephone calls demanding money. The demands for money and extortion threats grew during 2016 as the AL sought to raise funds for its next national election campaign. These threats and extortion were particularised as follows:
o[Mr H]’s gang demanded BDT[1] 1 million from him. He paid the amount on 18 February 2016.
[1] BDT is the acronym for the currency Bangladeshi Taka
oThe gang demanded a further BDT 1.2 million. He paid that amount to them on 17 October 2016.
oIn early December 2016, the gang demanded a further BDT 1.5 million. He could not make the payment. The gang became angry and threatened him. They also warned him not to make any further financial contributions to the BNP or engage in political activities for them. Despite the threats he continued to support the BNP and did not stop his political activities.
oOn 27 December 2016 at around 11am, he was attacked on the way to his business by 10-12 people from [Mr H]’s gang. The gang insisted he pay the BDT 1.5 million they had demanded in early December 2016. As he pleaded for more time, he was hit with an iron rod and sustained injuries. He was admitted to hospital after the attack and treated for his injuries.
oIn February 2017, the gang demanded he BDT 5 million. To avoid harm, he told them he would organise the payment by selling village properties that he owned because he could not raise that amount from his business.
oIn June 2017, the gang demanded he pay BDT 1 million by 15 August 2017.
Reasons for leaving Bangladesh
· As a result of his fear of ongoing extortion from the gang and possible abduction of his family members for ransom, he and his family applied for an Australian visitor visa in July 2017. They left their house in Dhaka and went to stay in his village. The Australian visitor visas were granted on 18 August 2017 but, due to poor internet coverage and access in his village, he eventually found out about the visa approvals on 28 August 2017.
· He and his family were unable to depart Bangladesh for Australia until [October] 2017 as his wife was suffering mental health issues and required treatment.
Fear of harm if the applicants return to Bangladesh
· As a result of his business profile and political activities, if he returns to Bangladesh, he and his family will face a real risk of harm, including ‘torture, degrading, inhumane and cruel treatment; abduction; extortion; or murder’.
Absence of effective protection from the Bangladeshi authorities
· The applicant and his family are unable to obtain protection in Bangladesh as the AL are in power and have a close and direct link with the Bangladesh authorities.
Relocation not an option
· The applicant and his family are unable to relocate within Bangladesh because:
o he intends to continue to support the BNP;
o his wife and child would be vulnerable targets for extortion, abduction and possibly sexual abuse by the AL because of his political opinion; and
o there are practical difficulties in relocating with a young family.
On 22 October 2018, the applicant’s representative provided a submission to the Department which contained numerous links and extracts relating to Bangladesh country reports and information between 2011 and 2018. The representative also submitted country information relating to the security situation in Bangladesh, the treatment of BNP members and supporters, extortion by the ruling AL as well as corruption amongst law enforcement. Extracts from various Tribunal decisions were also submitted. The representative contended that the applicant would face harm because of his political opinion being someone against the AL who shares the BNP ideology and because he was a member of a particular social group – ‘Bangladeshi diaspora involved in activities against the Awami League government’. The representative maintained that the applicant has a political profile with the BNP and as a result of his past, present and future political activities, would be identified and seriously harmed in Bangladesh if he was to return. The presentative further argued that the applicant would not be afforded adequate protection from the Bangladeshi authorities because a deeply politicised and dysfunctional criminal system undermined the rule of law and democracy in the country. In support of the contention, the representative argued that:
· various country information sources supported generalised and broad arguments of increased political suppression by the AL which impacted human rights in Bangladesh;
· active members of opposition political parties faced a high risk of arrest and physical violence;
· AL activists continue to attack and harm not only leaders of the opposition political parties by also the activists and ordinary people.
· extortion of money from businesses by thugs claiming political backing was common, with many smaller businesses becoming hostage to ‘illegal payment collection’;
· local police officials were used the by AL to extort money from vulnerable business people; and
· ruling AL party cadres also used Jatiya Rakki Bahini (Bangladesh’s National Defense Force) and the Rapid Action Batallion (an anti-crime or anti-terrorism unit of the Bangladesh Police) to assassinate opposition leaders and their key associates.
Supporting documents
The applicant lodged the following documents with the Department in support of his protection visa application claims:
· Letter from [Mr F], BNP Joint Secretary General and President, [Branch], attested on 28 December 2017 in which it is stated that the applicant has been a BNP member in the [Sub-district] area of old Dhaka since 2001 and ‘sustained loss in business and his family also lost everything due to attack of government party hooligans’;
· Photographs of the applicant’s attendance at a BNP meeting in Bangladesh;
· Bangladesh Trade Licences and renewals for the applicant’s business [Business name 1];
· Photographs of the applicant’s admission to [Hospital] on 27 December 2016 and injuries sustained;
· [Hospital] – Police Case Injury Report dated 27 December 2016;
· [Bank] Ltd bank statement in the name of the applicant for the month of February 2016 showing a cash withdrawal of BDT 1 million on 18 February 2016;
· [Bank] Ltd bank statement in the name of [Business name 1] for month of November 2016 showing a cash withdrawal of BDT 1.2 million on 6 November 2016;
· BNP Australia Membership Application Form dated [October] 2017;
· Letter from [Mr I], [Official position], BNP Australia dated 11 October 2018;
· Photographs of the applicant engaging in political activities in Australia, including meetings and protests;
· Letter from [Ms J], Psychologist, [Therapy provider] regarding the applicant and his wife, dated 4 January 2018; and
· Medical transcript from [Dr K], A/Professor Respiratory Medicine, Dhaka, regarding the applicant’s wife, dated 7 September 2017.
Protection visa application interview
The applicant attended an interview with the Department in connection with his protection visa application on 23 October 2018. The interview was conducted with the assistance of an interpreter in the Bengali and English languages.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below.
Claims and evidence provided to the Tribunal
The review application
On 17 December 2018, with the assistance of his representative, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Pre-hearing submissions and evidence
On 31 May 2023, the applicant’s representative provided a submission to the Tribunal in which the following key arguments were raised:
· The applicant is actively involved with political activities within the Australian Branch of the BNP.
· The applicant is not an ordinary member of the BNP and currently holds a ‘good political profile’.
· The applicant is ‘involved in constructive discussion with the BNP national leaders sharing his views and ideas’ and ‘continues to express his views on social media adverse to the Awami League and in support of the BNP’.
· The applicant’s wife experiences mental health issues to the degree that it is ‘not reasonable for them to move to other areas of Bangladesh because they would face practical difficulties in Bangladesh’.
Reference was made in the submission to a variety of country information sources relating to Bangladesh and various country information extracts were attached to the submission including a DFAT report, a Human Rights Watch Report and a range of media/newspaper reports relating to the persecution of BNP leaders and activists in Bangladesh. The Tribunal was also provided with the following supporting documents:
· The applicant’s Statutory Declaration made on 2 November 2017 (attachment 1);
· Pdf images depicting the applicant’s political activities in Australia from 2019 to 2023, including attending BNP Australia meetings, IFTAAR dinner and other meals with Australian [Political] party politicians, protests outside Parliament House in Canberra (attachments 2-6);
· Counselling report from [Organisation] for the applicant dated 23 May 2023 (attachment 7);
· Counselling report from [Organisation] for the applicant’s wife dated 19 May 2023 (attachment 8);
· Letter from [Dr L] dated 19 May 2023 regarding the applicant’s wife (attachment 9);
· Medical reports from [Prof M], Consultant Psychiatrist, NSW [Local Health District] dated 3 July 2019, 15 January 2020, and various progress notes relating to the physical and mental health of the applicant’s wife (attachment 10);
· Statement from [Mr N], [Official position], Bangladeshi Nationalist Youth Party Central Executive Committee dated 23 May 2023 (attachment 11);
· Statement from [Mr O] and [Mr P], Jubo Dal Dhaka City South dated 22 May 2023 (attachment 12);
· Pdf images of screenshots depicting Zoom meetings between the applicant and BNP officials in late 2021 (attachment 13);
· BNP [Social media] post comments by the applicant with translation and BNP [Application 1] comments by the applicants with translation (attachment 14), and
· Country Information regarding extortion (attachment 15), specifically:
o ‘Extortion from hawkers: 22 ruling party men collect Tk 60m daily’, Prothom Olo, Dhaka;
o ‘BNP: Awami League-backed syndicates make holiday-makers suffer with extortion, harassment’, Dhaka Tribune;
o ‘AL people extort in markets with govt backing, says BNP’, NewAge, 27 April 2022.
On 1 June 2023, the following documents were provided to the Tribunal:
· Letter from [Mr I], [Official position], BNP Central Executive Committee, BNP Australia, dated 29 May 2023;
· Letter from [Mr Q], [Official position] Organising Committee, BNP Australia, dated 29 May 2023.
On 8 August 2023, the following documents were provided to the Tribunal:
· Translations and original copies of [Social media] comments written by the applicant on posts made by him and comments made on the [Social media] pages of [Mr N], others and the BNP [Application 1];
· Further pdf images depicting the applicant’s attendance at BNP Australia meetings in May and June 2023;
· Country information relating to political violence and ongoing human rights abuses in Bangladesh from multiple media sources, including ‘Human Rights and Democracy: the 2022 UK Foreign, Commonwealth and Development Office Report, dated 13 July 2023’.
[In] August 2023, the Tribunal was provided further photographs depicting his presence at a protest in [Suburb 1], NSW, [in] August 2023, in relation to the court decision regarding Tarique Rahman and his wife.
On 14 August 2023, the Tribunal was provided an article entitled ‘21 BNP men jailed in vandalizing, mugging case’ published by Bangladesh Sangbad Sangstha (BSS) on 7 August 2023. It was reported that the applicant’s proposed witness, [Mr N], was among 21 BNP leaders and activists who had been sentenced in absentia [in] August 2023 to two-years imprisonment for [offenses] [in] October 2013.
The hearing: supporting documents and oral evidence
The applicant appeared before the Tribunal on 15 and 16 August 2013 to give evidence and present arguments. He tendered each applicant’s Bangladeshi passport at hearing. The Tribunal made copies of these documents then returned then to the applicant during the hearing. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The representative attended the hearing.
During the hearing discussions were held about the applicant’s background in Bangladesh, the current circumstances of his family members in Bangladesh, the birth of his son [Master R] in Australia who is not included in the application, 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 and profile as a businessman in Bangladesh, 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.
The Tribunal also heard oral evidence from various witnesses. Repeated attempts were made to contact by telephone two witnesses in Bangladesh, namely [Messrs N and O], but these were unsuccessful. Nevertheless, the Tribunal took evidence from three other witnesses, namely:
· [Mr P] from Jubo Dal Dhaka City South in Bangladesh;
· [Mr Q] from BNP Australia in Sydney;
· [Mr I] from BNP Australia in Sydney.
Where relevant, the Tribunal refers to the evidence provided at hearing in its findings and reasons below.
Post-hearing submissions and evidence
On 1 September 2023, the Tribunal was provided with a further submission from the representative along with the following:
· ‘Bangladesh: Excessive force against political protesters’, Human Rights Watch, 2 August 2023;
· ‘Bangladesh: Opposition face arbitrary arrests and excessive use of force around protests’, CIVICUS, 1 August 2023;
· Pdf images depicting the applicant at a BNP meeting at [Venue 1][in] August 2023 and a public protest in [Venue 2], Sydney [in] August 2023;
· Letter from [Dr R], [Healthcare provider] dated 30 August 2023 in relation to the applicant’s mental health;
· statutory declaration made by the applicant on 1 September 2023 to which the following documents were appended:
·pdf images depicting the location of the applicant’s business in the [Bazaar] location adjacent to [Road] in Dhaka;
·Letter from [Mr S], Advocate & Notary Public, Bangladesh dated 27 August 2023 in which it is stated:
othat the applicant started business on 14 November 2006 at [Address 1], Dhaka (first business address) and then moved his business to [Bazaar], [Road], Dhaka (second business address) and ran the business at that location until April 2018;
othat the author visited the second business address on 21 August 2023 and a nearby [shop] owner confirmed the applicant owned [Business name 1].
·Letter from [Mr T], [Business name 2], [Address 2], [Road], [Sub-district], Dhaka dated 12 August 2023 in which it is stated that the applicant conducted his business [Business name 1] at the second business address, sold [products] and the business was permanently closed in April 2018.
·Letter from [Mr U], [Business name 3], Dhaka dated 22 August 2023 in which it is stated that the applicant was his neighbour at the first business address and later conducted business at the second business address.
·Letter from [Mr V], [Business name 4], Dhaka dated 22 August 2023 in which it is stated that the applicant was a long-time business friend and owner of [Business name 1] whose had a business was located at the second business address until it closed in 2018.
·Statutory declaration made by [Mr W] on 29 August 2023 in which declarations were made pertaining to the threatening calls received by the applicant (and overheard by the applicant’s wife) on 5 May 2019 at their home in Australia;
·copy of biodata page of [Mr W]’s Australian passport;
·Statutory declaration made by [Mr X] on 29 August 2023 in which declarations were made pertaining to the threatening calls received by the applicant (and overheard by the applicant’s wife) on 5 May 2019 at their home in Australia;
·copy of biodata page of [Mr X]’s Australian passport;
·pdf images depicting the applicant’s presence at BNP Australia events held in a hall;
·pdf image of the applicant’s witness at hearing, [Mr I], meeting in London with Mr Tariq Zia, Acting Chairperson of the BNP;
·previously provided pdf images of the applicant in Australia meeting with BNP leader [Ms Y] on [in] February 2020, meals with Australian [Political] party politicians, at a protest in Canberra in March 2023 and in Zoom meetings with various BNP officials.
On 4 September 2023, the Tribunal received:
· a copy of a report from [Mr Z], Clinical Psychologist, [Suburb 2], dated 2 September 2023, in relation to the applicant beginning to commence psychological treatment;
· pdf images depicting the applicant’s presence at BNP Australia events held in a hall.
On 5 September 2023, the Tribunal received a Memorandum of Advice of same date from [Mr AA] setting out his advice in relation to ‘the proper approach to compile a proof of evidence for a witness’.
On 6 November 2023, the Tribunal received a copy of an online media article ‘Australian Prime Minister Albanese concerned over BD situation’, The Asian Age, 4 November 2023.
On 8 January 2024, the Tribunal received a short submission which contained a summary of recent country information relating to the situation in Bangladesh following the national election held on 7 January 2024. It was contended that Bangladeshis fear post-election violence as the government continues to crackdown on BNP activists as more than 10,000 BNP activists have been arrested due to their political opinion. It was further argued that the police have ransacked the homes of BNP leaders and workers in frequent night-time raids, detaining family members of those who evaded them. The following country information was appended to the submission:
· ‘Crackdown on Bangladesh Nationalist party hasn’t broken its morale yet; contrary to the ruling Awami league’s calculation, activists are not leaving the BNP in droves’, The Diplomat, 18 December 2023;
· ‘Bangladesh opposition on the run despite not contesting vote’, Reuters, 2 January 2024;
· ‘The Violent Politics of Bangladesh’s 2024 elections’, ACLED, 4 January 2024;
· ‘Thousands of opposition activists languish in prison as Bangladesh gears up for national election’, Associated Press World News, 6 January 2024;
· ‘Bangladesh polling booths are set ablaze, opposition start election strike’, Al Jazeera, 6 January 2024;
· ‘Fear of violence looms over contentious Bangladesh election as polls open’, Voice of America, 6 January 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of reference/receiving country
The applicant claims to be a citizen of Bangladesh and provided to the Department a copy of his Bangladesh passport issued [in] 2015. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Bangladesh. The Tribunal accepts that Bangladesh is his receiving country for the purpose of assessing his claims for protection.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[2] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[3] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[3] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[4] A similar approach is taken in the Department’s Refugee Law Guidelines[5] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[6] which provides useful guidance for this Tribunal.
[4] SZLVZ v MIAC [2008] FCA 1816 at [25]
[5] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[6] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[7] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[8] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[9]
[7] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[9] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[10] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[11] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[10] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[11] Ibid.
In determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[13]
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[14] As the Tribunal explained to [Ms BB] at the outset of the hearing, s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[15]
[14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[15] Sun v MIBP [2016] FCAFC 52 at [69]
In the present case, the Tribunal takes into account the applicant’s lack of familiarity with the Tribunal setting and his limited English language proficiency. The Tribunal has also had regard to the AAT Migration and Refugee Division ‘Guidelines on Vulnerable Persons’.[16] With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.
[16] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)
The Tribunal has also taken into account the AAT’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
The Tribunal formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Bangladesh, but that at times he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. The Tribunal found various aspects of the applicant’s oral evidence vague, digressive and changeable. On several occasions, he did not reply directly to the Tribunal’s question, but instead offered information relating to different incidents or topics, sometimes without specifying these. Even after allowing for the possibility that this reflects some nervousness or stress, or that it is simply his presentational style, the Tribunal is concerned that the applicant was sometimes deliberately blurring his claims and evidence. The Tribunal’s full assessment follows.
Assessment of claims
Political activities in Bangladesh
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. At hearing, he demonstrated sound knowledge of the BNP’s origins, political charter and organisational structure. Notably, he gave detailed evidence in relation to the ideological underpinnings of the BNP’s political philosophies and demonstrated insight into the party’s wings whereby he explained that the women’s wing – Bangladesh Jatiotabadai Mohila Dal – had emerged out of President Ziaur Rahmann’s commitment to ensure that at least a third of representatives in each of the party’s wings would be women. The difficulty for the Tribunal is that the applicant’s understanding of these matters does not necessarily indicate that he acquired this knowledge in Bangladesh and there is a real possibility that this understanding could well have been acquired, or at least developed, during his time in Australia.
At hearing, the applicant claimed that he became a member of the BNP in 2006 when he was [Age] years of age. In response to the Tribunal’s concern that there was no evidence of his membership since that date by way of a membership card, a matter which had also been raised by the delegate, the applicant explained that he lost the card when he lost his wallet during a terrorist attack. The applicant then asked the Tribunal for a period of 7 to 10 days in order to obtain another card from the BNP in Bangladesh detailing his membership since 2006. He explained that his membership history information would be stored in their systems and that he would request it through a friend and would be able to provide it to the Tribunal. The Tribunal allowed the applicant a post-hearing opportunity to provide this document but it has not been provided. The Tribunal also has not received any explanation as to why this document could not be obtained following the hearing.
Taking into account the consistency between the applicant’s written claims and testimony at interview and hearing, the Tribunal accepts the applicant’s claims that he:
· attended a rally in support of the BNP in 2001;
· supported [Mr E] when he contested the national election in 2008 by organising meetings and providing financial contributions for banners and leaflets;
· attended programs and meetings organised by [Mr F] who was the [Branch] President of the BNP;
· supported [Mr G], the BNP candidate who contested the April 2015 City Corporation Election, by campaigning door to door and providing financial contributions to prepare banners, meetings and leaflets.
· paid for food and transportation of other party faithful when they attended rallies and meetings.
· last attended a protest in Bangladesh in 2015 after [Mr G] had been defeated in the April 2015 City Corporation Election
· stopped participating in BNP activities and rallies in August or September 2016.
Adverse experiences in Bangladesh and Australia
The applicant’s 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. However, the Tribunal notes that the applicant’s wife did not attend the interview with the delegate or the Tribunal hearing so it was difficult to seek corroboration of some of these events with her which would indeed have strengthened these claims as these matters purportedly affected her mental health and well-being. That said, the Tribunal has difficulty with certain aspects of the applicant’s evidence in relation to the adverse experiences of him and his wife.
The Tribunal observes that the applicant had a tendency, at times, to change and embellish his evidence during the hearing in relation to his claimed adverse experiences of harm. This seriously undermines his credibility. While the Tribunal is prepared to accept that some applicants may tend to exaggerate aspects of their claims when recounting past experiences, the Tribunal in this case struggled with instances where the applicant simply introduced new claims or changed his evidence. An example of this is outlined below in relation to the applicant having been physically harmed by police officers at a political protest in 2014. Another example is where the applicant told the Tribunal that after he left Bangladesh, his brother took over his [product] business and was eventually forced to close it down in April 2018 after being threatened and manhandled by members of [Mr H]’s gang who were looking for the applicant. Noting that this claim had not been provided to the Department, the Tribunal again explained the operation of s 423A of the Act and sought an explanation as to why this claim had not been presented to the Department before the delegate made their decision. By way of response, the applicant merely reiterated his evidence. The Tribunal also drew the applicant’s attention to the absence of any written or oral testimony from the applicant’s brother in relation to these matters and was given no reason as to why such evidence was not made available, apart from a general indication by the applicant that he did not think it would have been required. The Tribunal has considered the applicant’s response and does not find that it amounts to a reasonable explanation in the circumstances of his case. The applicant has had the benefit of legal representation since his application was made in 2017. There has been ample opportunity for the applicant to detail all incidents of harm that his family members experienced because of him, including threats and manhandling at the hands of [Mr H] and his gang because of the applicant’s failure to pay extortion money. Accordingly, the Tribunal draws an adverse inference unfavourable to the credibility of this claim and does not accept it. The Tribunal’s conclusion is underpinned by the fact that there is no other persuasive evidence before it corroborating this claim, particularly from the applicant’s brother who would have been well-placed to provide such evidence at any point since the application was lodged over six years ago.
Asked about whether he had attended any protests in Bangladesh, the applicant told the Tribunal of only one protest during the time of the Bangladeshi national election in 2014. This claim is generally supported by the oral testimony of [Mr P] at hearing, however [Mr P] was unable to recall any specific detail of the applicant’s experiences at this particular protest. Nevertheless, the applicant told the Tribunal that the protest occurred in his local area near the main office of the BNP in Dhaka. Asked to provide further detail in relation to what happened at this protest, the applicant stated that it was a risky time to protest because the AL was in power and police would obstruct protesters and, in many locations, used tear gas to quell such protests. Asked to particularise what happened at the protest that he attended, the applicant introduced a new claim whereby he stated that the police physically injured him with a stick during that protest. Noting that this claim, nor any evidence in support of this claim, has not been provided to the Department, the Tribunal explained the operation of s 423A of the Act and sought an explanation as to why this claim had not been presented to the Department before the delegate made their decision. By way of response, the applicant stated that he had never been asked before whether he had been injured in a protest in Bangladesh and that he had only been asked whether he had participated in any rallies and not whether he had been hurt. He also indicated that he had not been seriously hurt on that occasion and that is why he did not raise this claim before. The Tribunal has considered the applicant’s explanation and does not find it to be reasonable in the circumstances of his case. The applicant has had the benefit of legal representation since the application was made in 2017. There has been ample opportunity for the applicant to detail all incidents of harm that he experienced as a result of his political activities in Bangladesh, including physical injuries sustained at the hands of police officers during a violent protest. Accordingly, the Tribunal draws an adverse inference unfavourable to the credibility of this claim and does not accept it. The Tribunal’s conclusion is underpinned by the fact that there is no other persuasive evidence before it corroborating this claimed physical injury.
The Tribunal notes the variety of claims made in relation to escalating threats and demands for money received by the applicant and his wife in Bangladesh, both directly and over the telephone, from members of [Mr H]’s gang. The Tribunal generally accepts that such threats occurred but has difficulty accepting the applicant’s narrative in terms of the amounts paid by way of extortion to members of [Mr H]’s gang and the physical harm sustained by the applicant from members of this gang.
In relation to the claims of extortion by members of [Mr H]’s gang during 2016, the Tribunal found certain aspects of the applicant’s oral testimony to be vague, implausible and somewhat evasive. The Tribunal is prepared to overlook a minor discrepancy in relation to these payments whereby the applicant stated in paragraph 14 of his statutory declaration of 2 November 2017 that he paid BDT 1.2 million on 17 October 2016 when his later oral testimony and bank statements indicate that the amount of BDT 1.2 million was actually withdrawn from his account in November 2016. The Tribunal accepts that errors may occur when recalling details of certain events when presenting protection claims for assessment. That said, the Tribunal observes the bank statements provided indicate cash withdrawals of amounts equating to the sums of BDT 1 million and BDT 1.2 million paid by the applicant to his extortionists in February and November 2016 respectively. When pressed to explain how these amounts appeared as cash withdrawals when he stated that he paid the extortionist by cheque, the applicant explained that he had attended the bank and withdrew the cash and then had cheques made out to cash in these sums. The Tribunal accepts this explanation as plausible but notes the lack of documentary evidence that could have been provided to corroborate this claim, such as details of the fee paid to the bank to issue such cheque. The Tribunal is also concerned by the lack of detail in relation to the identity of the persons to whom the applicant gave these cheques in 2016. At hearing, the applicant was unable to provide any detailed evidence in relation to the names of the criminal gang members to whom he gave the cheques and who would otherwise telephone him and meet with him during 2016 and 2017 when making threats of extortion. It is difficult to accept that the applicant would have engaged with such persons to the degree claimed without being able to provide the Tribunal with any significant detail as to their names or at least the aliases they may have used when interacting with him. On this basis, the Tribunal does not accept that the applicant paid these amounts in February 2016 and November 2017 to [Mr H] and his gang members.
In relation to the claims of being physically attacked on 27 December 2016 because he had not paid [Mr H]’s gang another BDT 1.5 million that had been demanded in early December 2016, the Tribunal has difficulty accepting that this attack occurred for the reasons claimed. While the Tribunal accepts that the applicant was harmed on that date, as supported by the contemporaneous medical report and photographic evidence relating to this incident, there is little persuasive evidence before the Tribunal indicating that the applicant was specifically attacked by [Mr H]’s gang members or other AL thugs on that date. Notably, when pressed at hearing to describe this incident, the applicant explained that his wallet, mobile phone and moneybag had been taken during the attack. He argued that it was a politically motivated attack because he had been physically injured and that if it had been a mere robbery his attackers would have simply fled with his valuables and not physically injured him. The Tribunal has difficulty accepting this contention as it relies upon an assumption that all robberies are without physical violence. More importantly, the Tribunal notes that the applicant gave no oral testimony at hearing in relation to the demands made by these persons during the attack and there were no witnesses before the Tribunal, such as the applicant’s wife or his friends who were photographed with him outside the hospital, who could corroborate this central claim.
The Tribunal’s doubts in relation to the occurrence of the attack in December 2016 and the extortion amounts paid by the applicant in response to threats by [Mr H] and his gang are underscored by the applicant’s delayed application for an Australian visa, travel history and delayed departure from Bangladesh after he obtained an Australian visa. After having been physically attacked on 27 December 2016, the applicant did not apply for an Australian visitor visa with his family until 11 July 2017. Furthermore, as noted in the visa application form, the applicant travelled to [Country 1] between [in] February 2017, following which all applicants travelled to [Country 2] between [April] 2017 and [May] 2017. After the visitor visa had been granted on 18 August 2017, the applicants did not leave Bangladesh until [October] 2017, some seven weeks later. Asked to account for this the delay in making their Australian visa application, their travel history and delayed departure given the claimed threats and incidents of harm faced by the applicant and his family, the applicant gave the following reasons:
· He gave the gang money in 2016 and thought they would not ask for more money.
· It was difficult for him to wind up his business in Bangladesh in such a short time.
· His friend, who had better internet access, only told him on 27 August 2017 that the Australian visas had been granted and he immediately left his [village] and returned to Dhaka to make departure arrangements but this was again delayed because he needed to raise funds for the airfares and his wife needed medical treatment.
The Tribunal has considered these explanations and has difficulty accepting them. In relation to the belief that the gang would cease extorting money from him, this is not borne out in the facts. The alleged threats continued within weeks of the payments having been made in 2016 and did not abate throughout 2017. Furthermore, other evidence before the Tribunal indicates that the applicant did not wind up his business but gave it to his brother when he departed in October 2017 and that the business only closed in April 2018. Moreover, the Tribunal does not accept that the applicant and his family were especially fearful of experiencing further harm in Bangladesh if they simply had delegated the task of remaining updated in relation to the outcome on their Australian visitor visa application to a friend and allowed that friend to keep them uninformed for a period of some nine days after the application had been approved. In the absence of medical evidence relating to the mental health condition of the applicant’s wife in Bangladesh in 2017 that necessitated the applicants remain in Bangladesh before coming to Australia, the Tribunal is not prepared to accept that the delay could be attributed to the applicant’s wife. While the Tribunal accepts that the applicant’s wife has sought mental health treatment in Australia sometime after her arrival, it is difficult to understand why the applicant and his wife would elect to remain in Bangladesh any longer than required given the claimed threats that she and her husband had received. Overall, the Tribunal does not consider the applicants’ travel movements in 2017, and delay in departing Bangladesh until 10 October 2017, to be consistent with the applicant’s statement in paragraph 1 of his statutory declaration of 2 November 2017 that he and his family faced a ‘real risk of harm including torture, degrading, inhuman, cruel treatment and would be abducted to extort money from us and if not would be summarily murdered’ and felt compelled to flee. Rather, the Tribunal considers the applicant’s conduct – including his visits to [Countries 1 and 2], and his delayed departure even after being granted an Australian visitor visa – tend to undermine his claim to have feared for his safety.
Finally, at hearing, the Tribunal explored the applicant’s claim raised in paragraph 11 of his statutory declaration made on 31 May 2023 in which he stated that he received a threatening telephone on his mobile telephone when in he was hosting a function at his home on 5 May 2019. Taking into account the considerable evidence relating to this call, including the two statutory declarations provided by Australian citizens who were present at the applicant’s home when the call was received along with the substantial contemporaneous medical evidence provided by the applicant’s wife’s health care providers relating to the psychological impact of this incident upon her, the Tribunal accepts that such a call occurred. The Tribunal accepts that on at 5 May 2019, a member of [Mr H]’s gang telephoned the applicant in Australia to express their displeasure at him having escaped Bangladesh and that they were aware of his anti-AL political activities in Australia and threatened to kill him should he return to Bangladesh.
Political activities in Australia
The applicant’s claims in respect of his political involvement with the BNP in Australia is extensive. The Tribunal accepts that the applicant became a member of BNP Australia [in] October 2017, only four days after having arrived in Australia. The Tribunal also accepts that the applicant has paid $10 per month to the BNP in Australia and has been actively involved in the affairs of BNP Australia, helping to organise meetings (both online and in-person) for BNP members, some of which have been attended or presided over by BNP officials in Bangladesh.
The applicant has also attended various rallies and public protests in Sydney and Canberra where critical statements have been made against AL leaders and policies. However, the applicant told the Tribunal that he was not photographed by or made comments to media, including Australia’s Channel 9 media network and Bangladeshi media news outlets, at these gatherings.
While the Tribunal acknowledges the various photographs depicting the applicant’s attendance at various meetings and meals with Australian politicians, including Australian [Political party] Senator [Ms CC], the applicant was unable to provide much detail at hearing in relation to the nature and degree of involvement these politicians had in relation to supporting the BNP’s cause either in Australia or Bangladesh. When shown a photograph he provided which included him posing with [Senator CC], the applicant could not tell the Tribunal which Australian political party she represented.
The Tribunal notes that various letters of support appear to have been written at the applicant’s request, to support his protection visa application. This may reflect the authors’ satisfaction that he is a genuine BNP supporter, but the letters are of limited value as independent corroboration of the applicant’s claimed positions and profile (particularly when compared to other material, such as contemporaneous photographs or similarly documentary evidence). The Tribunal prefers the oral evidence of [Messrs Q and I] at hearing where they told the Tribunal that BNP Australia has somewhere between 200 and 300 members and that the applicant has been a dedicated supporter of the BNP’s activities and programs in Australia who is being considered for appointment to the role of [Official position] of the BNP in Australia.
The applicant expresses his support for the BNP, and opposition to the AL, on [Social media] and in other social media chat groups. He told the Tribunal that he was aware of the possibility of adverse consequences that might arise as result of his posts on [Social media] but indicated that he did not know anyone, including fellow social media activists in Bangladesh who were critical of the AL, who had been the subject of such consequences.
Proposed activities in Bangladesh
In terms of his political future, the applicant claimed at hearing that if he returned to Bangladesh he would choose to reside in Dhaka and continue to support the BNP. Asked what he would do, the applicant simply stated that he would attend the BNP’s head office and would ‘join the party and then the head office will give me instructions which I will do’. Following the hearing, these intentions and political aspirations expanded somewhat whereby in paragraph 9 of the applicant’s statutory declaration of 1 September 2023, the applicant maintained that there was a strong possibility that the BNP leaders would promote him to ‘enter national level political activities’.
Summary of key findings
Based upon the above analysis of the applicant’s evidence and having considered the entirety of the available material, the Tribunal finds that:
· The applicant supported the BNP between 2001 and 2016 while he lived in Bangladesh. The support was intermittent and relatively limited whereby he attended a rally in support of the BNP in 2001; supported [Mr E] when he contested the national election in 2008 by organising meetings and providing financial contributions for banners and leaflets; attended programs and meetings organised by [Mr F] who was the Dhaka City South President of the BNP; supported [Mr G], the BNP candidate who contested the April 2015 City Corporation Election, by campaigning door to door and providing financial contributions to prepare banners, meetings and leaflets; and paid for food and transportation of other party faithful when they attended rallies and meetings. The applicant last attended a protest in Bangladesh in 2015 after [Mr G] had been defeated in the April 2015 City Corporation Election. He stopped participating in BNP activities and rallies in August or September 2016.
· The applicant owned and operated a [product] business which he left to his brother when he came to Australia in October 2017. The business closed in April 2018.
· During 2016 and 2017, the applicant became a victim of extortion threats by [Mr H] and his gang, who were affiliated with AL, due to him being a businessman who supported the BNP. In Bangladesh, the applicant was threatened but was not physically harmed and he did not pay extortion sums to [Mr H] and his gang in the sums claimed. A member of [Mr H]’s gang telephoned the applicant in Australia on 5 May 2019 to express their displeasure at him having escaped Bangladesh and that they were aware of his anti-AL political activities in Australia and threatened to kill him should he return to Bangladesh.
· The applicant has been a member of the BNP in Australia and since [October] 2017. He has provided regular logistical and some minimal financial support to the BNP in Australia. He has attended public rallies and protests but has not garnered any discernible public profile as he has neither been photographed or interviewed by public-facing media outlets at such events. He has limited insight into the BNP Australia’s lobbying activities given his absence of demonstrated role and knowledge in relation to the organisation’s relationships with Australian politicians and the identity of those politicians. His commitment has been recognised by party leaders through his potential promotion to the role of [Official position].
· The applicant has expressed his support for the BNP, and opposition to the AL, on [Social media] and in other chat groups. He does not know anyone who has been harmed as result of their social media activities in support of the BNP or against the AL.
Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future?
While the Tribunal accepts that extortion of BNP-affiliated business owners by AL-affiliated gangs occurs in Bangladesh[17] and further accepts that the applicant has been subject to a range of verbal threats of extortion, it is not persuaded that there is a real chance such threats would continue should he return to Bangladesh. In reaching this conclusion, the Tribunal gives weight to the fact that:
· these threats did not result in physical violence while the applicant was in Bangladesh;
· the most recent threat occurred nearly five years ago and would be unlikely to resume as the applicant no longer has a business in Bangladesh which would make him a target for such extortion and there is no persuasive evidence before the Tribunal that the applicant’s brother was similarly threatened In Bangladesh when he took over the applicant’s business after the applicant left Bangladesh and before the business closed in April 2018.
[17] Department of Home Affairs, Country of Origin Information Services section, Standard q & report, Bangladesh: 20200915105753 – Extortion – Bangladesh National Party (BNP) – Business Owners – Land Grabbing (21 September 2020)
Turning to its consideration of the applicant’s political profile and BNP affiliation, 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.[18] Inter-party political violence is ongoing though historically is most prevalent in the lead up to national or local elections.[19] Political conflict between the AL and its opponents peaked around the January 2014 elections - the most violent in Bangladesh’s history.[20] High levels of political violence continued throughout subsequent years.[21]
[18] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016
[19] Country Policy and Information Note Bangladesh, Political Parties and Affiliation, UK Home Office, 25 September 2020
[20] Political Conflict, Extremism and Criminal Justice in Bangladesh, International Crisis Group, 11 April 2016
[21] For example, 'Annual Human Rights Report on Bangladesh 2018', Odhikar, 8 August 2019, p.9, 2019082714401620190827144016; 'Annual Human Rights Report 2019 Bangladesh', Odhikar, 8 February 2020, pp.70-71, 20200218104232; 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, pp.43-44, 76-77, 20210209153355; 'Country Policy and Information Note Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9, 20200928084218
According to DFAT’s latest advice,[22] 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.
[22] 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 noted that this could change in the lead up to the January 2024 national elections.
News sources indicate that as in the past, the national election recently held on 7 January 2024 resulted in increased harassment and violence directed at opposition parties and their supporters. A Voice of America news article[23] published in early December 2023 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 BNP’. The article states that the situation across the country is volatile as the BNP geared up for major political protests. It is reported that the police arrested thousands of BNP activists in a crackdown in the preceding month.[24] 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[25] 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.
[23] ‘Bangladesh Arrests Thousands of Political Activists Ahead of Opposition Protest’, Voice of America, 7 December 2022
[24] ‘Bangladesh arrests 8,000 opposition activists; report’, France 24, 5 November 2023
[25] ‘Bangladesh opposition says 4,000 charged in gov’t crackdown’, Al Jazeera, 11 October 2022
Also provided in submissions is an excerpt from Human Rights Watch, World Report 2023 – Bangladesh, which notes that there were increasing attacks against political opposition members from August, raising concerns about violence and repression ahead of the January 2024 parliamentary elections. Post-election reports indicate that instability looms over Bangladesh as opposition supporters continue to criticise the much-vaunted stability under Prime Minister Hasina’s rule[26] and observers maintain that the Prime Minister’s personalised autocracy will likely face ongoing opposition and popular unrest as the economy continues to cause serious hardship to the middle and lower-middle classes.[27]
[26] ‘Instability looms over post-election Bangladesh’ The Diplomat, 26 January 2024
[27] ‘A one-sided election risks Bangladesh’s future’, 360info, 4 January 2024
As noted above the Tribunal accepts the applicant was a supporter of the BNP in Bangladesh, particularly during past election campaigns but notes that his support abated between late 2016 and his departure from Bangladesh in October 2017 due to the threats he received threats from AL-affiliated thugs or gang members. The Tribunal also accepts, based on the oral and documentary evidence, that the applicant has continued his engagement with the BNP in Australia.
The Tribunal acknowledges the applicant has expressed an interest in furthering a political career with the BNP in the future. He stated his consideration for promotion to the role of [Official position] of the BNP in Australia and a willingness to assist in whatever role is provided to him by BNP Head Office officials should he return to Bangladesh. During the hearing, the applicant 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.
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 that his participation in Zoom meetings, which happened to have been attended by BNP leaders in Bangladesh, means that his elevation to a leadership 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.
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 his [product] business in Dhaka, which the Tribunal considers formerly raised his profile with the AL such that he became the subject of extortion threats, the Tribunal is nevertheless persuaded he would once again attend BNP meetings and publicly canvass support for BNP candidates should they attempt to contest any upcoming election. Irrespective of the 2024 election outcome, an election which had been boycotted by the BNP, it is clear from the above reporting that BNP supporters and their families have been targeted across the country by the AL regime prior to and following 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 seeks to advocate for 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.
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, and instability persists following the most recent election, the Tribunal considers a cautious approach is warranted at this time.
The Tribunal has also had regard to the applicant’s activity on social media. According to DFAT,[28] 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.
[28] DFAT Country Information Report, Bangladesh, 30 November 2022
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.
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.
The Tribunal has closely reviewed the [Social media] and other posts provided by the applicant. They are numerous and span several years and predominantly involve him commenting upon the original posts of other [Social media] users including the BNP, the BNP [Applications 1 and 2]. The applicant generally comments upon posts that call for the restoration of democracy in Bangladesh and the efforts made by the BNP to achieve this. In most of his comments, the applicant makes statements in support of BNP policies and officials whist also criticising the AL, its policies and its leaders. The applicant’s criticisms are broad and often involve the use of inflammatory language where he has described Prime Minister Sheikh Hasina as a ‘dictator’ and the AL regime as ‘the mafia’ and ‘tyrannical’.
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 comments and that the risk of a post or comment 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, which the Tribunal expects he would given his demonstrated interest in supporting the BNP and advocating its policies, 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.
For the above reasons, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm from AL 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. The Tribunal observes that similar reasoning was applied by the Tribunal in case number 1836961[29] where Member Flood considered claims comparable to those in the present case in relation to an applicant who was assisted by the representative in the present case.
[29] 1836961 (Refugee) [2023] AATA 1234 (15 March 2023), accessible at >
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.[30] 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.[31] 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.[32] The AL also uses the courts and legal processes to suppress opponents including through laying fictitious charges against AL opponents.[33]
[30] BTI 2022 Country Information Report: Bangladesh, Bertelsmann Stiftung, 23 February 2022
[31] Bangladesh: 86 victims of Enforced Disappearance Still Missing, Human Rights Watch 16 August 2021
[32] 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
[33] 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 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.
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.
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.
Finally, the Tribunal acknowledges the Memorandum of Advice from [Mr AA] dated 5 September 2023 setting out his advice in relation to ‘the proper approach to compile a proof of evidence for a witness. The Tribunal does not seek to cavil with the matters raised therein but draws to the representative’s attention that it has a Practice Direction geared towards organising evidence and submissions in a manner that facilitates the Tribunal managing cases expeditiously and in line with its other objectives specified within s 2A of the Administrative Appeals Tribunal Act 1975. The Tribunal observes that there is a distinction between evidence, which in this case consists of the particulars of the applicant’s claims, and legal submissions which are made for the purposes of explaining how that evidence satisfies the relevant criteria. In this case, the Tribunal observes that a blurring of this distinction has meant that the Tribunal needed to perform additional work in order to discharge its decision-making task.
Conclusion
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).
Claims have been obliquely raised in relation to the applicants being at risk of gender-based violence in Bangladesh as a result of the applicant’s proposed political activities and profile. These claims were not vigorously pursued at hearing and there is a paucity of material before the Tribunal to enable it to make a positive finding in that regard. Accordingly, 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
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.
Peter Papadopoulos
MemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
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 below.
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 below.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.
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.
Extract of key provisions of the 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.
…
- AGLC
- 1836973 (Refugee) [2024] AATA 4299
- Case
- [2024] AATA 4299
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to assess whether the applicant had a well-founded fear of persecution for reasons of his political opinion, as defined by section 5J of the *Migration Act 1958* (Cth). This involved considering whether there was a real chance of persecution, whether such persecution would involve serious harm, and whether effective protection measures were available in Bangladesh. The Tribunal also needed to consider the claims of the other applicants as members of the same family unit. The applicant's claims included allegations of being targeted by an AL-affiliated gang, extortion, and physical assault, leading to his departure from Bangladesh with his family.
In its reasoning, the Tribunal considered extensive country information regarding the use of state machinery by the ruling AL against political opponents in Bangladesh, including arrests, detentions, and enforced disappearances by security forces like the Rapid Action Battalion (RAB). The Tribunal found that effective protection measures would not be available to the applicant in Bangladesh and that relocation within the country would not offer protection from the feared harm. Consequently, the Tribunal was satisfied that the applicant had a well-founded fear of persecution for reasons of his political opinion and met the criterion under section 36(2)(a) of the Act. The Tribunal also found that the other applicants were members of the same family unit as the primary applicant.
The Tribunal remitted the matter for reconsideration with directions that the first applicant satisfies section 36(2)(a) of the *Migration Act*, and that the other applicants satisfy section 36(2)(b)(i) on the basis of membership of the same family unit as the first applicant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.Peter PapadopoulosMemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958The relevant law 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 below.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 below.Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.Mandatory considerationsIn 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.Extract of key provisions of the Migration Act 19585 (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 familyFor 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 familyFor 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.…