1837396 (Refugee)

1837396 (Refugee) [2023] AATA 1280 (17 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATIONS FOR REVIEW:               Applications for review of two decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
REPRESENTATIVE:  Dr Angus Francis, solicitor
CASE NUMBERS:  1837396 & 2105197
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Kate Chapple
DATE:17 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicant protection visas in:
Case number 1837396 (SHEV application made on 4 May 2016); anda.
Case number 2105197 (SHEV application made on 19 October 2020).b.

Statement made on 17 February 2023 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Awami League (AL) supporter – victim of extortion, extortion threats, and serious harm – credibility concerns – inconsistencies in evidence – Unrepresented Asylum Seeker Project – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 46, 48A, 65, 91K, 411
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
OVERVIEW

The applicant, a Bangladeshi man aged [age], claims that he and his cousin were victims of extortion and threats by people associated with the Bangladesh Nationalist Party because of their support for the opposing political party, the Awami League, leading to the killing of his cousin and serious harm to himself, father and one of his brothers. The applicant left Bangladesh to work in [Country 1] for two to three years before coming to Australia.
The applicant claims that if he returns to Bangladesh, there is nowhere safe for him to live as the BNP people will find him and kill him because of his support for the Awami League and his failure to comply with extortion demands.
According to Department of Home Affairs (‘the Department’) records, the applicant, a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 2013.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa (‘Temporary Safe Haven visa’) on 30 May 2013 by the Department. The applicant was considered at that time to be an unauthorised maritime arrival (as was defined in s 5AA of the Act).
On 11 January 2016, the Department invited the applicant to make an application for a SHEV, notifying him that the Minister had exercised his discretion to lift the s 46A bar that would otherwise prevent the applicant, then considered an unauthorised maritime arrival, from making a visa application in Australia.
The applicant applied for a SHEV on 4 May 2016 (‘the SHEV 1 application’).
On 3 May 2017, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a SHEV under s 65 of the Act on the basis that the applicant did not meet the applicable visa criteria. On the basis that the applicant was at the time considered an unauthorised maritime arrival, and therefore a fast track applicant (as defined in s 5(1) of the Act), the Department referred the refusal decision to the Immigration Assessment Authority for a fast track review under Part 7AA of the Act.
On 6 August 2018, the Full Federal Court handed down a judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. The Court declared that the appointment of the proclaimed port in the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid. This meant that all persons who arrived via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013, and did not subsequently enter Australia at an excised offshore place, are not unauthorised maritime arrivals. The effect was that the applicant is not an unauthorised maritime arrival, and therefore not a fast track applicant, and a decision to refuse to grant the applicant a SHEV is not a fast track decision (as defined in s 5(1) of the Act). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411 of the Act.
On 20 December 2018, the applicant applied for review of the refusal decision by the Tribunal, such review bearing case reference number 1837396 (‘the SHEV 1 review application’).
The Department subsequently notified the applicant that he is not an unauthorised maritime arrival. It was considered then that because the applicant was not an unauthorised maritime arrival, he was subject to the s 91K bar preventing him from making a valid visa application, other than an application for another Temporary Safe Haven visa; and, accordingly, the applicant was notified the SHEV 1 application is invalid and cannot be considered.
On 8 October 2020, the Department notified the applicant that the Minister had made a determination to lift the s 91K bar and the s 48A bar, allowing the applicant to make another SHEV application.
The applicant applied for a SHEV, a second time, on 19 October 2020 (‘the SHEV 2 application’).
Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
Accordingly, the SHEV 1 application is valid, and the SHEV 1 review application is valid.
On 31 March 2021, the Minister’s delegate made a decision to refuse to grant the applicant a SHEV, and on 23 April 2021, the applicant applied for review of the refusal decision by the Tribunal, such review bearing case reference number 2105197 (‘the SHEV 2 review application’).
The SHEV 2 application is valid, and the SHEV 2 review application is valid.
This decision record is a statement of the Tribunal’s reasons and decisions in relation to the reviews bearing case reference numbers 1837396 and 2105197.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa applications and related material
The SHEV 1 application.
Applicant’s supporting statutory declaration dated 12 April 2016.
The SHEV 2 application.
Representative’s submission dated 15 October 2020.
Other Departmental records:
22.1.Decision records.
22.2.Interview audio files.
22.3.Case file.
22.4.Internal records relating to the applicant.
Applications for review
The Tribunal wrote to the representative inviting the applicant to attend a combined hearing of the SHEV 1 application for review and the SHEV 2 application for review on 9 February 2023 and to provide pre-hearing submissions.
Prior to the hearing, the representative provided to the Tribunal:
24.1.Confirmation that the applicant intended to participate in the hearing with the assistance of the representative.
24.2.Representative’s submission dated 30 January 2023.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 9 February 2023, with the assistance of an interpreter (via telephone) in the Bengali and English languages. The applicant’s representative was present at the hearing in person.
The applicant gave the following evidence:
26.1.The applicant was born in [year] in [location], Comilla, Bangladesh. He is of Shia Muslim ethnicity and the Islamic faith. He grew up with his parents, [number] brothers and [number] sisters. His father was a farmer, and his mother, a homemaker. Both parents have died. All siblings live in Bangladesh. One brother continued farming, another works in the government, and the other has a problem with his hands and can’t work.
26.2.The applicant completed eight years of schooling; he can’t remember what year he finished. After he left school, the applicant worked with his father on the farm for about four years, then worked for three or four years with his cousin who had [a] business, learning how to do [specified work]. He and his cousin were close, so much so that the applicant often referred to him as his brother.
26.3.The applicant arranged to go to [Country 2] to work, however when he arrived at the airport there, it was discovered that his visa was false, so he was sent back to Bangladesh after seven days. The applicant lost money in this process having paid for airline tickets and the false visa.
26.4.The applicant returned to his cousin and offered to buy into his [business]. He paid his cousin 250,000 Taka, and they became co-owners. The business was called, [Business 1], and located at the [named] market, along with many other shops. The shop had a tin roof with walls. There was no shop number. The cousin leased the shop from the market owner. The cousin had registered the business when he set it up; the applicant did not register as a co-owner when he later bought in to the business. It was the cousin’s role to do the selling and to set up [specified] jobs, and it was the applicant’s role to do the [specified] jobs. The business earned 40-50,000 Taka profit per month; the applicant and his cousin each drew 20-25,000 Taka per month. They dealt only in cash and all takings were kept on the premises; the business did not have a bank account. The applicant doesn’t have any documents to prove the business existed because they were destroyed when the shop was burned to the ground by Bangladesh Nationalist Party (‘BNP’) members about two years after the applicant became a co-owner.
26.5.The applicant and his family had always been Awami League (‘AL) supporters; however they were never members of the political party. During the 2006 federal elections, he did some campaigning, protest marches and meetings. When asked by the Tribunal about the ideologies or principles of AL or what AL stands for, the applicant said it is a good party, he likes the AL members of parliament and their plans for the development of the country. The AL was in power when the applicant was in Bangladesh, and they remain in power, with Sheikh Hasina as president.
26.6.There was a BNP club about twenty metres behind the [business], but not part of the market. BNP people gathered there each day in the hundreds. BNP people came into the shop many times asking the applicant and his cousin to BNP events and meetings. They told the BNP people they wouldn’t attend because they were AL supporters. The applicant isn’t sure, it was a long time ago, maybe in 2006, about 15 to 17 BNP people came to the shop one day that the applicant and his cousin were there. They were not the same people who had come to the shop previously, however the applicant had seen them passing by in the village. The BNP people told them that if they weren’t going to become BNP supporters, they would have to pay 200,000 Taka. The cousin told them they didn’t have that amount, but they could pay 150,000 Taka in three instalments of 50,000 Taka, which was paid. The applicant and his cousin told the BNP people they were going to report the extortion to police, whereupon the BNP people threatened to kill them, so they did not report.
26.7.About one month after the payment, BNP people came to the shop again when only the cousin was there; the applicant was out doing a [specified] job. A customer in the shop at the time heard the BNP people demand 700,000 Taka, and the cousin refused, whereupon he was shot and killed, and the shop was burned to the ground. The customer rang the applicant to tell him what had happened. The applicant doesn’t know if the police or the fire brigade came as he didn’t want to return to the shop. He thinks the BNP people must have taken the cash from the shop before they burned it down. He doesn’t know if any of the nearby shops in the market were damaged by the fire.
26.8.The applicant left for Dhaka two to three days after where a friend organised a job for him at a [company], where he also lived with his friend on the company premises. He rang the cousin’s family from Dhaka and told them what had happened. He thinks this was in 2007 or 2008, but it’s hard to remember.
26.9.After about eight or nine months, when work had finished one day, four or five people confronted the applicant on the company premises and asked him for details about where he’d come from and why he was there; then they left. Three to five days later, the same people and more returned to the company premises, blindfolded the applicant, took him in a 7-seater van to a place where there was no light, bashed him, then dropped him back at the company premises. They didn’t ask him any questions or tell him why they did it. He thinks the BNP people from the village in [location] must have told the attackers about him; he doesn’t know how they knew his whereabouts. His friend and others took him to the hospital where he spent two days where he got medication and treatment for injuries on his arms. He doesn’t have the hospital records, but thinks they would exist. The applicant reported the incident to the police; however he didn’t know the names of the attackers and was blindfolded. The police took a statement from him, but he doesn’t have a copy.
26.10.The applicant’s friend rang the applicant’s brother who lives in [location] and works for the government. The brother collected and took the applicant to his home where he stayed for about two months. The brother told him Bangladesh wasn’t safe, there was no protection, and he would pay for him to go to [Country 1].
26.11.The applicant never had any other contact or involvement with police when he was in Bangladesh.
26.12.The applicant went to [Country 1] in 2010 and, through an agent, got a job at a [company]. The agent took half of what the applicant earned, and when the agent thought the applicant might get a job elsewhere, he refused to return his passport. After 14 months, the applicant got a job at a second [company] where he didn’t need a passport. After about eight months, one day the immigration police came to the company; the applicant fled to the jungle a few kilometres away fearing he would be found out. When he thought it was safe, he returned to the room he was living in, grabbed his gear, and started thinking about coming to Australia.
26.13.The applicant went to see a migration agent who arranged his passage by boat to [Country 2] and then Australia for [amount]. He knew Australia was a good country and people were taken care of. He was very sick on the boat journey, and when he arrived in Australia, he was confused and couldn’t remember things properly.
26.14.When the applicant was in the detention centre, he was allowed to make a phone call home, which he did on 20 January 2013. He spoke to his sister who told him that his father, aged [age] and previously well, had died on 1 January. His second brother’s wife told the sister she was home with their father one day when 50 to 60 people came to the house looking for the applicant. The father said he didn’t know, and they hit him; he died three days later. The applicant doesn’t know whether his father died at home or in the hospital; he didn’t ask any questions because he was crying too much. He hadn’t told his father he was going to Australia. His sister reported the incident to the police; however they did not bother investigating after the father died.
26.15.The applicant talks to his sister in Bangladesh often. His second brother had spent some time in [Country 3] making money; when he returned, the BNP people tried to get money out of him sometime in 2015, but he didn’t pay and they broke his arm.
26.16.The applicant hasn’t been involved in anything to do with AL or BNP while he’s been in Australia, and he does not post anything on Facebook or social media. He has his life here now, and he wants to avoid any conflict between the parties. The situation in Bangladesh is very bad, the next federal election is in January 2024 and a lot of people will die.
26.17.The applicant works two jobs in Australia: as an [Occupation 1] and on a farm at [Town 1]. He has a girlfriend, but she lives in [Country 4].
26.18.The applicant thinks he will be killed if he returns to Bangladesh. The BNP people have killed his cousin and father, and broken his second brother’s arm, so if he returns, they’ll find him and kill him; he may even be spotted at the airport. It’s too dangerous for him to enter Bangladesh, and there is nowhere safe there for him to live. He can’t get support from AL; he doesn’t want to support AL or any political party in Bangladesh, his life is in Australia.
Post-hearing submissions
The Tribunal invited the representative to make post-hearing submissions seeking to explain any inconsistencies between the applicant’s statutory declaration dated 12 April 2016 and his evidence at hearing.
At the representative’s request, the Tribunal consented to receiving submissions from the representative no later than seven days after the hearing.
On 16 February 2023, the Tribunal received the representative’s post-hearing submissions, which are considered in the following section.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the applicant’s oral and written evidence taking into account the circumstances of his passage to Australia, his lack of English skills at the time, his subsequent detention, and the significant time that has elapsed between his departure from [Country 5] and the Tribunal hearing.
The Tribunal notes the representative’s post-hearing submission that:
As a preliminary matter, we note that the Statutory Declaration was prepared by a volunteer solicitor as part of the Refugee and Immigration Legal Service’s Unrepresented Asylum Seeker Project (see the notation on page 5). The Applicant’s current representative was previously Principal Solicitor of RAILS and was responsible for setting up and running the Project. The Project was a response to the then Federal Government’s decision to defund legal services such as RAILS from providing legal advice and assistance to ‘boat arrivals’, including the Applicant.
The consequence of this and other earlier policy decisions of the Federal Government was that the Applicant had very rudimentary legal assistance in preparing and submitting his protection visa application and claims, including his Statutory Declaration. Based on the Applicant’s representative’s experience of setting up and supervising the Project, the assistance the Applicant would have received as part of the Project would have been one to two hours of a volunteer solicitor’s time to prepare his entire protection claims as set out in his Statutory Declaration. Despite being provided with some introductory training, the volunteer solicitors were usually enthusiastic, but very junior, solicitors from firms or practices with little or no experience in preparing protection claims as set out in a detailed statutory declaration. Due to the demands on the Project, they also had very little time in which to prepare the requisite forms and statutory declaration.
The Applicant requests that the Member take the above into account when assessing any possible inconsistencies between his Statutory Declaration and the evidence he provided at the hearing on 9 February.
The Tribunal has considered the inconsistencies between the applicant’s statutory declaration dated 12 April 2016 and his evidence at hearing taking into account the representative’s submission regarding the limited nature of the legal assistance available to the applicant in preparing the statutory declaration, and affording due weight to the representative’s particular experience in this regard.

The Tribunal considers it is reasonable that the details of an incident or event given by the applicant in evidence at hearing would differ in minor or inconsequential respects from those details given in his statutory declaration some seven years earlier.
The Tribunal considers it is reasonable to distinguish minor or inconsequential inconsistencies from inconsistencies in details that are core to the applicant’s claims and evidence. Further, it is reasonable for the Tribunal to expect that the applicant’s accounts of details that are core to his claims and evidence would be consistent over time.
The Tribunal notes the following inconsistencies between the applicant’s statutory declaration dated 12 April 2016 and his evidence at hearing, and the representative’s related submissions:
35.1.The statutory declaration states that in August 2005, BNP thugs attended the shop demanding that the applicant and his cousin pay them 200,000 Taka. However, the applicant gave evidence at hearing that he thought the demand for the 200,000 Taka payment was in 2006, but he couldn’t remember the month. The Tribunal notes the representative’s submission that: The Applicant says at the hearing that the BNP first came to the [shop] in 2006. In his Statutory Declaration he says that the BNP first came to the shop in 2005. The Applicant says in his Statutory Declaration that he went to [Country 2] in 2004. And he started work with his cousin after his return in the same year. He also says in his Statutory Declaration he worked with his cousin from 2004 until 2006. Due to the lapse of over 17 years, he now struggles to remember the exact date when the BNP first came to his shop during this period. However, as the Statutory Declaration was taken 7 years ago (in 2016) – and is therefore closer to the events to which it refers – he relies on the account he gave in his Statutory Declaration on this point. The Tribunal accepts it is reasonable that after many years the applicant would struggle to remember exact dates.
35.2.The statutory declaration states that the BNP people attended the [shop] again in July 2006 demanding that the applicant and his cousin pay them 700,000 Taka; and the next day they returned, when the applicant wasn’t in the shop, to collect the money from the cousin, and when he didn’t pay, they shot the cousin. However, the applicant gave evidence at hearing that the demand for the 700,000 Taka payment was about a month after the demand for the 200,000 Taka payment, and that the demand and shooting occurred on a single day, not on consecutive days, and he wasn’t in the shop on that day. The Tribunal notes the representative did not make a submission regarding this inconsistency. The Tribunal considers the inconsistency relates to details that are core to the evidence in support of the applicant’s claim that he was the victim of extortion, extortion threats and serious harm from the BNP due to his support for the AL. In particular, the variance in the interval between extortion threats from nearly a year to about a month; and the variance in the circumstances of the second extortion threat and the cousin’s shooting from having occurred over two consecutive days where the applicant was present on the first day, but not the second, to having occurred on a single day where the applicant wasn’t present at all raises serious doubts as to the truthfulness of the claim and evidence.
35.3.The statutory declaration states that some people in a neighbouring shop phoned the applicant and told him about his cousin being shot. However, the applicant gave evidence at hearing that it was a customer in the [shop] at the time who witnessed the shooting and phoned the applicant. The Tribunal notes the representative’s submission that: [The applicant] says at the hearing that a customer called him after the death of his cousin. In his Statutory Declaration he says that ‘people in a neighbouring shop’ called him. He clarifies that by this he meant a customer in a neighbouring shop. The Tribunal does not consider this inconsistency in detail to be core to the applicant’s claim or evidence.
35.4.The statutory declaration makes no reference to the applicant contacting the cousin’s family about the shooting after he had arrived in Dhaka. However, the applicant gave evidence at hearing of having done so. The Tribunal notes the representative did not make a submission regarding this inconsistency. The Tribunal considers that the inconsistency and the lack of detail surrounding the death of the cousin, a person the applicant claimed to be so close to he called him a brother, raises serious doubts as to the applicant’s overall truthfulness.
35.5.The statutory declaration makes no reference to the BNP people having burned the [shop] down, only that they threatened to. Further, the statutory declaration states that people in the neighbouring shop told the applicant not to return to the shop, the inference being that the shop still existed. However, the applicant gave evidence at hearing that the BNP people burned the shop down, and he thinks they removed the cash from the shop beforehand. The applicant also gave evidence earlier in the hearing that he couldn’t provide any documentary evidence that the [business] existed because it was destroyed when the shop burned down. The Tribunal notes the representative did not make a submission regarding this inconsistency. The Tribunal considers this detail to be core to the applicant’s claim that he was the victim of extortion, extortion threats and serious harm from the BNP due to his support for the AL, and for the applicant to fail to give consistent evidence at hearing raises serious doubts as to the truthfulness of the claim and evidence.
35.6.The statutory declaration states that the police commenced a court matter against the applicant accusing him of killing his cousin. However, the applicant gave evidence at hearing that he had not had any contact or involvement with police while he was in Bangladesh other than when he gave a statement to police following the Dhaka incident. The Tribunal notes the representative did not make a submission regarding this inconsistency. The Tribunal considers this detail to be unrelated to the applicant’s claims for protection, however it is of such a serious nature that for the applicant to fail to give consistent evidence at hearing raises serious doubts as to his overall truthfulness.
35.7.The statutory declaration states that when the applicant was collected from his workplace in Dhaka, and blindfolded and bashed, the attackers demanded that he pay the 700,000 Taka that hadn’t previously been paid. However, the applicant gave evidence at hearing that the attackers didn’t ask him any questions on that occasion or tell him why they were attacking him. The Tribunal notes the representative’s submission that: The Applicant also says that the people who bashed him did ask for 700,000 Taka (the amount previously demanded). He believes that is why they beat and let him go: it was done in the expectation that he would pay them. Otherwise, they would have just killed him there and then. The Tribunal considers this detail to be core to the applicant’s claim that he was the victim of extortion, extortion threats, and serious harm from the BNP due to his support for the AL, and for the applicant to fail to give consistent evidence at hearing raises serious doubts as to the truthfulness of the claim and evidence.
35.8.The statutory declaration states that the applicant didn’t report the Dhaka incident to the police because he believed they would arrest him due to the pending charge against him accusing him of killing his cousin. However, the applicant gave evidence at hearing that he reported the incident to the police and gave a statement. The Tribunal notes the representative’s submission that: The Applicant wishes to clarify that when he went to the hospital, the doctors and nurses asked who attacked him. He said he did not know because his eyes were covered. He says it was the medical staff who called the police. He does not recall giving a statement to the police in hospital because he was still recovering from his beating. However, he believes the police took a statement from one of the nurses. The Tribunal relies on the considerations set out in subparagraph 35.6, and considers that regardless of whether the applicant claims to have given a statement to police or a nurse gave a statement to police, the fundamental inconsistency with the statutory declaration raises serious doubts as to his overall truthfulness.
35.9.The statutory declaration states that 20 to 25 people attended the applicant’s father’s house in Bangladesh and attacked him when he wouldn’t tell them the applicant’s whereabouts. However, the applicant gave evidence at hearing that it was 50 to 60 people. He also said that his sister-in-law, who was at the house and witnessed the incident, reported it to the police; however the statutory declaration makes no reference to this. The Tribunal notes the representative did not make a submission regarding this inconsistency. The Tribunal considers that the vast increase in the number of people involved in the alleged attack on the father and the later claimed report to police raises serious doubts about the truthfulness of the claim and evidence.
The Tribunal accepts the representative’s clarification of the applicant’s evidence regarding the timing and duration of his work on the farm with his father and his training and work in the [shop] with his cousin. The Tribunal considers it is likely the applicant worked with his cousin in [a] business in [location], however there is no credible evidence to support the claim that he was a co-owner of the business. The Tribunal considers it is likely the applicant fabricated the claim to give the appearance that he was a credible extortion target.
The Tribunal considers the applicant’s evidence regarding the claimed extortion threat and harm to one of his brothers by BNP people limited, non-specific and lacking credibility.
The Tribunal considers that the applicant has little or no understanding of the policies of the AL party and considers the applicant’s evidence regarding his involvement in the 2006 federal election campaign limited, non-specific and lacking credibility. The Tribunal further considers it is likely that the applicant’s support for the AL is no more than as a person who in the past voted for the AL at federal elections held in Bangladesh. On his own evidence, the applicant states that he has never been a member of the AL and wouldn’t support any political party if he returned to Bangladesh.
The Tribunal does not accept that:
39.1.The applicant had or has a political profile as an AL supporter in Bangladesh.
39.2.The BNP extorted or threatened to extort money from the applicant because of his support for the AL.
39.3.The BNP shot and killed the applicant’s cousin because he and the applicant failed to comply with an extortion demand.
39.4.The BNP burned down the [business] in [location] because the applicant and his cousin supported the AL and failed to comply with an extortion demand.
39.5.The BNP facilitated a violent attack on the applicant in Dhaka because of his support for the AL and his failure to comply with an extortion demand.
39.6.The BNP harmed the applicant’s father and brother because of their links to the applicant.
The Tribunal finds that the applicant has not in the past been targeted and harmed by the BNP because of his support for the AL and failure to comply with an extortion demand.
The Tribunal considers that, if the applicant returns to Bangladesh, it is unlikely that he would be involved in any political activities or that he would be targeted and harmed by the BNP or any other organisation or individual because of his political opinion.
Country information
The Tribunal notes the country information set out in the representative’s submissions dated 15 October 2020 and 30 January 2023 generally accords with the country information set out in Attachment B.
The Tribunal does not consider the applicant a person of adverse interest to the BNP, and therefore vulnerable to discrimination or violence at the hands of the BNP if he returns to Bangladesh.
The Tribunal does not consider the applicant a person of adverse interest to the Bangladeshi authorities, and therefore vulnerable to official discrimination or violence at the hands of the authorities if he returns to Bangladesh.
Other considerations
In considering the claims and evidence, the Tribunal has also taken account of:
45.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
45.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
47.1.The applicant is a non-citizen in Australia.
47.2.The applicant does not satisfy the requirements for protection under the refugee or on complementary protection criteria set out in the applicable law.
47.3.If the applicant is returned to Bangladesh, there is no real chance that he would be persecuted for his political opinion, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
47.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decisions not to grant the applicant protection visas in:
51.1.Case number 1837396 (SHEV application made on 4 May 2016); and
51.2.Case number 2105197 (SHEV application made on 19 October 2020).
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
ATTACHMENT B
Relevant Country Information
DFAT Country Information Report Bangladesh 30 November 2022
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). 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. 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.
3.70 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. 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. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.
Awami League (AL)
3.71 The Awami League (AL) was established in 1949, with Mujibur Rahman, the father of current Prime Minister Sheikh Hasina, playing a key role. It has been in power since 2009.
3.72 At the top of the party is the Central Committee, known as the Presidium. There are 15 members of this committee, including the Prime Minister. The Presidium is part of an 81-person Central Working Party and is supported by an advisory committee of technical advisers. Each district and upazila has its own committee and people join political auxiliary organisations and rise up through the ranks.
3.73 The AL has made efforts in recent years to increase social inclusion, including through the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they had experienced less discrimination and violence under the AL in its recent terms (compared to earlier periods) and less discrimination and violence than when the (now opposition) Bangladeshi Nationalist Party (BNP) was in power.
3.74 Internal party violence has been reported in the AL, including in the lead-up to the 2018 election, and during sub-national elections and student organisation elections. This violence is usually about disputes over candidate pre-selection or internal disputes between business people. While sometimes described as ‘factional’ violence, the ‘factions’ may in fact be personality or patronage-based rather than ideologically based. The party has strong disciplinary policies to deal with rogue candidates that can be activated in such circumstances to expel members from the party.
3.75 The party engages in recruitment activities throughout the year. Recruitment activities often have a festive atmosphere. DFAT considers it unlikely that people would be coerced into membership; there are many benefits to membership, such as political patronage, that mean volunteers are likely to join the party willingly.
3.76 Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence.
Bangladeshi Nationalist Party (BNP)
3.77 The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
3.78 The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
3.79 The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
3.80 BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.
3.81 The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
3.82 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. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. 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. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.
Conditions for Returnees
5.24 It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.25 Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
5.26 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.

[2023] AATA 1280

17 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing