1902228 (Refugee)

1902228 (Refugee) [2023] AATA 3503 (11 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Md Sirajul Haque
CASE NUMBER:  1902228
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Member Nathan Goetz
DATE:11 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2023 at 3:59pm
CATCHWORDS

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – alleged involvement and participation in party activity with the National Democratic Party (BNP) – targeted by the Awami League (AL) – no real risk of significant harm to the applicant in Bangladesh due to any actual or perceived involvement with the BNP – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36,65,499
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by registered migration agent 9790005.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
BACKGROUND
The applicant identifies as a [age]-year-old male citizen of Bangladesh presently located in Australia.
[In] February 2017 the applicant applied for a visitor to travel to Australia. On 23 February 2017 a delegate determined that the visa application was invalid. On 13 March 2017 the applicant applied for a visitor visa to travel to Australia. On 29 March 2017 a delegate granted the visitor visa. The applicant arrived in Australia holding the visitor visa [in] April 2017. The visitor visa was valid until 21 April 2017.
On 18 April 2017 the applicant applied for a protection visa. On 20 April 2017 the applicant was granted a bridging visa to regularise his migration status in Australia until his protection visa application was finally determined. On 15 January 2019 the applicant was interviewed by the delegate. On 25 January 2019 the delegate refused to grant the applicant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act. On 31 January 2019 the applicant applied to the Tribunal for review of the refusal decision.
On 21 February 2022 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing commencing at 10:00am on 22 March 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1) of the Act. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a favourable decision to the applicant on the material it had. The Tribunal determined that a Tribunal hearing conducted via Microsoft Teams was appropriate in all the circumstances.
On 14 March 2022 the applicant wrote to the Tribunal and asked for the Tribunal hearing to be postponed because the migration agent was suddenly required to travel out of Australia to Bangladesh and would not be present at the Tribunal hearing. The Tribunal considered the request to postpone the Tribunal hearing but was not persuaded to postpone the Tribunal hearing for a number of reasons. First, the migration agent does not have a right to examine the applicant at the Tribunal hearing, meaning that the applicant would not be disadvantaged by the migration agent not attending the Tribunal hearing. Second, any submission that the migration agent wished to make could been made in writing after the Tribunal hearing following the migration agent listening to the recording of the Tribunal hearing. The Tribunal advised the applicant that the postponement request was refused.
On 22 March 2022 the applicant appeared at the Tribunal hearing by Microsoft Teams. The Tribunal hearing was conduced with the assistance of an interpreter in the English and Bengali languages. The migration agent attended the Tribunal hearing by Microsoft Teams from Bangladesh.
CONSIDERATION OF CLAIMS AND FINDINGS
The Tribunal considered all the information and evidence that was provided in support of the protection visa application and the review application, including the contents of the Department file, Tribunal file, and the discussion at the Tribunal hearing.
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection,’ or a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
As advised to the applicant at the start of the Tribunal hearing, the Tribunal is not bound by any factual finding of the delegate.
For the following reasons, the Tribunal has concluded that the correct or preferrable decision is to affirm the decision under review.
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.
At the time of the Tribunal hearing, the relevant DFAT Country Information Report on Bangladesh was dated 22 August 2019. DFAT has subsequently issued a new Country Information Report on Bangladesh dated 30 September 2022. The Tribunal has considered the contents of both reports.
The applicant’s identity and country of reference
Evidence
According to the protection visa application form that was signed by the applicant on 11 April 2017 and completed with the assistance of the representative and read back to the applicant in his own language, the applicant was born in Dhaka, Bangladesh on [DOB deleted], is a citizen of that country and has no right to enter and reside in any third country. He provided a copy of his Bangladesh passport issued [in] 2016 and valid for 5 years.
Assessment
The Tribunal is satisfied as to the applicant’s identity and citizenship based on the passport that was provided. There is no evidence to undermine the claim that the applicant is not a citizen of any other country and that he has no right to enter and reside in a third country.
Therefore, for the purpose of the protection visa assessment, the country of reference is Bangladesh.
Member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act
Evidence
In the protection visa application form, the applicant was the only person included in the protection visa application. He claimed to be raising his own protection claims and did not claim to meet the requirements for the grant of a protection visa based on membership of the same family unit as a person who meets s 36(2)(a) or (aa) of the Act.
Assessment
Based on this concession, and in the absence of any evidence that the applicant is a member of the same family unit as a person who meets s 36(2)(a) or (aa) of the Act, the Tribunal is not satisfied that the applicant is a member of the same family unit of such a person.
Protection claims concerning his political opinion in Bangladesh
The Tribunal considered the totality of the applicant’s evidence and balanced the concerns that the Tribunal had concerning whether the applicant’s claims are genuine.
Evidence
Claimed political profile in Bangladesh
In the written statement dated 18 April 2017, the applicant detailed that when he was in college at Dhaka, he joined the student wing of the Bangladesh Nationalist Party (BNP) and held a committee position. He claimed that he did not attend his examinations due to his heavy involvement in student politics. He claimed to have campaigned for the BNP candidate for the general election held in 1996. He also claimed to have campaigned for this same candidate in the subsequent election which was held after a period of caretaker government. At the delegate interview, the applicant said that he joined the BNP because he liked the party and was inspired by the ideologies of the party and its founder. He described the ideologies about developing the country and doing things for young people. He described the party’s objectives as Faith in God, Democracy, Socialism and Nationalism. He contrasted the ideologies with the Awami League, which he described as taking freedom of speech and having no plans for unemployment.
He claimed that he joined the youth wing of the BNP and became [a member] of that organisation’s district area (thana). In the December 2008 parliamentary elections, he campaigned for a BNP candidate.
He wrote that he lost of a lot of money due to the share market collapsing in 2010, which he attributed to the Awami League (AL) Government’s mismanagement. The applicant wrote that a group of BNP-minded businessmen started a [Company 1] under the guidance of the BNP. The organisation was designed to show people how corrupt Awami League businessmen used the government to gain wealth. The applicant wrote that he became the [Job title 2] of that organisation.
He wrote that in 2011 he was elected the [Position 3] of the youth wing of the BNP for that organisation’s district area. He told the delegate interview that he held that roll until December 2016. He told the delegate interview that the role was to spread religious instruction, such as telling people to pray five times a day and educate people to read the Koran.
Claimed experiences of harm in Bangladesh
In the written statement, the applicant claimed that after he became [Job title 2] of [Company 1], he was targeted by government agents. He also wrote that after his election as [Position 3] of the youth wing of the BNP he was attacked in 2011 as he was leaving the party office when was attacked by ‘Awami goons’ near a bazar. He was beaten. He became unconscious and he was left. People took him to a local clinic, and he was released three days later. He repeated this claim at the delegate interview.
In the written statement, he detailed that the BNP opposed the election of 5 January 2014 and he ‘assimilated’ himself into the movement to oppose the election. He claimed that as a result, he was ‘marked by Awami goons.’ After the election, his life was in danger. He wrote that on 16 December 2016 he participated in a procession to celebrate Bangladesh Victory Day where Awami cadres beat him, and he was wounded. Police visited the applicant’s house and asked him to attend the local police station, which made the applicant very scared. He repeated this claim at the delegate interview.
At the Tribunal hearing, the applicant told the Tribunal that after he was assaulted in December 2016, he went to a clinic and was treated for about 45 minutes. He described the assault as being beaten with a stick and that he went to the doctor because had had pain and got an x-ray done. He was not hospitalised and had no corroborative medical evidence because this type of document is not recorded in Bangladesh.
He wrote that during this period, Awami League cadres were continuously threatening to kill him. He no longer felt safe in Bangladesh, and he spoke with his sister who sponsored him to come to Australia.
In support of the applicant’s claimed narrative, he provided the following documents:
·     A report dated 6 January 2011 that was described as a ‘[deleted].’ This was provided to the delegate the day prior to the interview. [Information deleted].
·     A letter dated 8 January 2019 identified as being authored by the [name deleted] of [organisation deleted]. This was provided to the delegate the day prior to the interview. The letter details that the applicant was known to the author, identified his role in the organisation and that the applicant was compelled to leave the country.
·     A letter dated 10 January 2019 identified as being authored by the [name deleted] of [organisation deleted]. This was provided to the delegate the day prior to the interview. At the delegate interview, the applicant described that organisation as providing him legal advice concerning his problems in Bangladesh.
·     Photocopies of untranslated newspaper reports dated [in] December 2010 and [in] December 2010 which, according to a submission provided on 4 March 2022, were ‘photos from a [newspaper] in Bangladesh’ and contained photographs of the applicant. This was provided to the Tribunal prior to the Tribunal hearing. The applicant did not provide the Tribunal with an English translation of the newspaper.
At the Tribunal hearing, the applicant raised for the first time that he was beaten and harmed at the protest in December 2010. He told the Tribunal that he was beaten and got hot water sprayed on him by police, and went to a doctor to get medication afterwards, He detailed that this experience was something that makes him fearful of returning to Bangladesh. The applicant did not claim at the delegate interview that he attended a protest in December 2010 where he was harmed.
The Tribunal found it very odd that the applicant would fail to detail this claimed incident of harm in December 2010 in his written statement if it were true. The Tribunal also observes that the applicant did not provide a copy of the untranslated report when he applied for the protection visa, which appeared to corroborate his attendance at the protest in December 2010. In response to the Tribunal’s concern about the failure of the applicant to detail the incident of harm in December 2010, the applicant asserted that he did put the incident in his statement and suggested that his representative was responsible if it was not included. No concession was made by the representative that this is what occurred.
Residential location in Bangladesh and movements in Bangladesh after experiencing harm
In the protection visa application form, the applicant declared that he did not move or try to move to another part of Bangladesh to seek safety. He detailed one address where he lived in Bangladesh in the [years] prior, (from [year]) namely [Address 1].
At the Tribunal hearing, the applicant claimed that he started living at that address in 1998, but that he sometimes lived at that address, and sometimes lived at other addresses as he was hiding. He told the Tribunal that during his last period of hiding, he went to [Address 2]. When asked when he started to live at that address, the applicant was unable to specify any date, other than to say he sometimes stayed where when he had ‘trouble from the police or other people.’ He then claimed he lived at that address after 16 December 2016 and was there until he departed Bangladesh, before saying that from 16 December 2016 until he departed Bangladesh, he lived between the two addresses. He told the Tribunal that he became away in April 2017 that police were looking for him at the [Address 2] address because two or three days after police attended, his mother told him about this attendance. It was the attendance by police at the address that was one of the reasons he applied for protection.
The Tribunal found the applicant’s evidence about his living arrangements in Bangladesh to be contradictory. He first initially claimed that he had not relocated within Bangladesh to seek safety and provided only one address for his entire residential history in Bangladesh. That then changed to the applicant claiming that he lived between addresses and that he did so because of his safety concerns. The Tribunal’s assessment is that if the applicant had relocated within Bangladesh, he would have declared this in his protection visa application form. The Tribunal is not persuaded by the applicant’s explanation that he put down only one address in Bangladesh because that is the address the people knew, and did not detail other addresses because they were temporary.
Departure from Bangladesh
In the written statement, the applicant wrote that he managed to leave the country after obtaining a visa and left through a person who managed the airport. In the protection visa application form, the applicant declared that he left Bangladesh legally on a passport issued in his own name and declared that he had not had any other passports other than the one he used to travel to Australia. However, that evidence was inconsistent with what he told the delegate, describing that he had two passports previously issued by that country and that the passport he travelled to Australia was a third renewal.

In the protection visa application form, the applicant declared that he left Bangladesh legally from Dhaka International Airport [in] April 2017 on a Bangladesh passport issued [in] 2016. He declared that he had never held a previous passport. However, despite this claim, and an initial assertion by the applicant at the delegate interview that the passport was his first passport, the applicant then suggested that he had earlier passports. At the Tribunal hearing, the applicant claimed that he did not leave Bangladesh on any of the previously issued passports (which he claimed were valid for the periods 2005 or 2006 for 5 years, and 2011 for 5 years) because it was either ‘not the right time or a good time to travel’ and he was ‘busy with work’ or did not ‘have enough leave to travel.’
The Tribunal found it strange that if the applicant held previously issued passports that would have allowed him to depart Bangladesh, he would fail to declare this in the protection visa application form. The failure to declare the existence of the previous passports suggested to the Tribunal that the applicant was prepared to hide relevant evidence from the Tribunal because possession of passports that would have allowed him to depart Bangladesh, and his failure to do so despite the claimed experiences of ‘being targeted by government agents’ following becoming a [Job title 2] of the Bangladesh [Company 1] in December 2010, as well as facing ‘a lot of harassment and attack’ following that organisation ceasing in February 2011 (as detailed to the delegate), may suggest that the applicant was aware that an inference could be drawn that the claimed pass experiences were not true if it was apparent that the applicant previously held passports that allowed him to depart Bangladesh, but he did not do so. To the Tribunal’s way of thinking, if the applicant was attacked in December 2011 as claimed, which resulted in him being unconscious and requiring hospitalisation for three days, it was incredulous to think that the applicant would not depart Bangladesh on either of his two previously issued passports. The applicant told the Tribunal that he had a valid passport as of 2014.
The applicant’s explanation to the Tribunal that he ‘started his effort to leave the country in 2014’ but he ‘did not have the opportunity to leave’ was vague and does not satisfy the Tribunal’s concerns about the credibility of the applicant’s claims in light of his failure to leave Bangladesh during the time he held previous passports which would allow him to do so. The Tribunal’s assessment is that the applicant deliberately attempted to hide the existence of previous passports in his protection visa application form because he was aware of the inference that may be drawn about the truth of his claims concerning his failure to depart Bangladesh on either of those two previously issued.
The DFAT County Information Report advises at 5.24 that the Bangladesh Department of Immigration and Passports maintains a list of persons wanted by security forces and intelligence agencies and has used that list to prevent people from leaving Bangladesh, including those suspected of leaving to avoid criminal proceedings. The same report details DFAT’s awareness that both senior members of the BNP leadership and ordinary BNP members have been prevented from leaving the country.
In response to the information contained in the report and the Tribunal’s assessment that if the applicant suggested that there is normally a photograph and name of a person at the airport if the person is wanted by authorities, and then suggested for the first time that he was detained prior to leaving the country. He told the Tribunal that he was asked whether he was politically active and whether he belonged to a political party. The applicant told the Tribunal that he answered ‘technically’ and did not really say anything because he would have been arrested. The applicant said that he was not sure whether he was targeted in the questioning or whether everyone was asked those questions on departure. He suggested he was able to depart because his name and photograph were not at the airport and that the officer who asked him questions did not have his information.
The Tribunal is satisfied that if the applicant had the political profile he had in Bangladesh, or was wanted by the authorities for any reason, then he would have encountered difficulties departing the country, as suggested by the country information. The fact that the applicant did not detail the 90-minute questioning in his protection visa application form suggests that he fabricated this at the Tribunal hearing, but then needed to explain how he was still able to leave the country despite his claimed profile. The Tribunal is not persuaded by the applicant’s explanation and is satisfied that he was able to depart Bangladesh on his own passport because he was of no interest to the authorities in Bangladesh.
Criminal case / ‘False case’ against the applicant in Bangladesh
In the protection visa application form, the applicant declared that he had not been found guilty of any crime in any country, and that he was not aware that he was the subject of a criminal investigation or had criminal charges pending against him. At the delegate interview, the applicant said that he had a ‘false case’ against him and that he came aware of this case once he left Bangladesh in April 2017. He told the delegate that police came to his house and said that he would need to appear in court. He was told this by friends but could not tell the delegate specifically when he became aware of the case against him, which he described as an allegation that he was ‘hampering public interest’ and that he was ‘planning bombings.’
At the Tribunal hearing, when the Tribunal asked the applicant about whether he had any outstanding criminal cases, the applicant initially responded that it was ‘not like a criminal case’ but that it was about ‘setting fire, vandalising’ and related to politics. He claimed that he did not have any criminal cases, other than ‘political issues.’ The applicant then said that there were some cases, but ‘names were not mentioned’ and the applicant was not able to say whether the number of cases against him, or whether they were finished.
The Tribunal found the applicant’s evidence about whether he had been charged in Bangladesh or had outstanding criminal cases against him to be vague and confused. The question was relatively simple and was either a ‘yes’ or a ‘no’ question. The evidence went from ‘no’ in the protection visa application form, with no assertion that he had been charged with any criminal case in the accompanying written statement, to a positive claim that he had been charged with what he described as a ‘false case’ when he participated in the delegate interview, and then morphed into, what the Tribunal can only describe as, an unsuccessful attempt to blend those two contradictory positions at the Tribunal hearing.
The Tribunal is not satisfied that the applicant has been charged with any criminal case in Bangladesh and is satisfied that the applicant fabricated this assertion to lend credibility to his claims. The Tribunal is satisfied that this demonstrates that the applicant is prepared to manufacture evidence in order to be granted a protection visa.
Reasons put down for the applicant’s visitor visa to come to Australia
In the protection visa application form, the applicant declared that he entered Australia as a visitor. At the Tribunal hearing, the applicant said that the purpose of the visitor visa was to come to Australia because of his experience in Bangladesh being beaten, and his sister applied for a visitor visa to save his life. He was told that he could come to Australia as a visitor and the applicant could then find a way to seek asylum. The applicant told the Tribunal that his intention was not to live in Australia permanently but to avoid trouble in Bangladesh. The Tribunal asked the applicant whether he would return to Bangladesh if there was no harm in that country, but the applicant disputed that this would be possible. The Tribunal’s assessment is that the applicant is determined to stay in Australia no matter what, as he specifically said he would not return to Bangladesh even if he was safe there.
The Tribunal asked about what he put down as the reasons for his travel to Australia in the visitor visa application. The applicant said that he could not remember but when asked whether he declared that he had experienced harm in Bangladesh and was coming to Australia to escape, he said that he did not write that on the application, and as far as he could remember, he wrote that the purpose of the visa was to come and visit his sister. When the Tribunal explored with the applicant that his intention was to come to Australia to escape harm in that country and why he did not declare that as the purpose of the visit, the applicant said that was not included because he did not know whether that was ok or not.
When the Tribunal observed that if the applicant put down that the purpose of coming to Australia was to escape harm in Bangladesh, but that he did not declare this in the visitor visa application form and instead wrote that the purpose of his trip to Australia was to visit his sister, it might suggest that the applicant had a flexible approach to the truth and was prepared to say whatever he thought could assist him to get a positive migration outcome. The applicant said that this was a misunderstanding and that he understood that he could not declare that he had issues in Bangladesh because if he did, the visitor visa would not be granted. When observed by the Tribunal that this was dishonest, the applicant accepted that it was dishonest but said that his protection claims were not dishonest.
Timing of the protection visa application
In the protection visa application form, the applicant declared that he last arrived in Australia [in] April 2017, which is consistent with immigration movement records. That visa was valid until 21 April 2017. The applicant signed the protection visa application form on 18 April 2017. The applicant told the Tribunal that he applied for the protection visa three days prior to his visitor visa expiring.
At the Tribunal hearing, the applicant was asked about what it was that made the applicant apply for a protection visa on 18 April 2017. The applicant said that there was a condition on his visitor visa that allowed for him to study for up to three months, and he was talking to people to find the best option for him to study. He was exploring visa options and weighing them up. He told the Tribunal that he applied for a protection visa rather than applying for a visa that would allow him to study because he had a ‘study gap’ and would not have been able to be admitted to a course in Australia.
The Tribunal accepts that there was no substantial delay in the applicant arriving in Australia and applying for the protection visa two weeks later. However, the applicant’s evidence at the Tribunal hearing about exploring study options to allow him to remain in Australia, and his decision to instead apply for a protection visa because he would be unlikely to be granted a study visa, when combined with the other concerns that the Tribunal has about the applicant’s credibility, satisfy the Tribunal that the applicant lodged the protection visa for reasons not connected with Australia’s protection obligations.
Assessment
The Tribunal did not find the applicant to be a persuasive witness as to his claimed lived experiences in Bangladesh, and his claimed fear of harm in Bangladesh.
The Tribunal acknowledges that the applicant produced a letter from [Company 1] that he was supposedly a member of, but ultimately the Tribunal is not persuaded that there is any truth to the contents of that letter for reasons that follow.
Similarly, the Tribunal acknowledges that the applicant provided a letter from [an organisation deleted] but ultimately the Tribunal is not persuaded that there is any truth to the contents of that letter for reasons that follow.
The Tribunal also acknowledges that the applicant has produced two newspaper articles concerning protests that he attended in December 2010 and January 2011. The Tribunal is satisfied that the applicant is photographed attending those protests. However, the Tribunal is not satisfied that the applicant was harmed at any protest and is not satisfied that there is a real chance of serious harm to the applicant in Bangladesh because he attended protests in 2010 and 2011 for reasons that follow.
The applicant held passports to depart Bangladesh since 2005. He did not do so until 2017. This was despite him claiming to have been assaulted in 2010 at a protest and knocked unconscious in 2011 due to his political profile. The Tribunal’s assessment is that if there was any truth to those claims, the applicant would not have delayed departing until 2017. The Tribunal’s assessment is that the applicant’s explanation that he had no leave from work available or was too busy was just an excuse he made to the Tribunal to explain why he did not leave despite him being previously assaulted for engaging in political activity. The fact that the applicant did not disclose in the protection visa application form the existence of previous passports also demonstrates to the Tribunal that the applicant is prepared to alter his evidence in order to achieve a particular outcome. The Tribunal is satisfied that the applicant hid the fact that he had previous Bangladesh passports in the protection visa application form was because he was aware that the existence of those passports would cast serious doubts on the veracity of his claims.
The applicant also provided contradictory evidence of whether he lived in the one place in Bangladesh during his time there, or whether he relocated to other areas to seek safety. The Tribunal’s view is that if the applicant was a witness of truth, he would have provided consistent evidence about something as basic as where he lived in Bangladesh. The Tribunal is not persuaded by the applicant’s explanation that he did not detail any moves or other addresses because they were ‘temporary’ as the reason why no such detail was provided in the protection visa application form. Rather, the Tribunal is satisfied that the applicant made up the accounts of relocating to other addresses at the Tribunal hearing (broad as that detail was) in order to counter the obvious inference that he was of no interest to the authorities in Bangladesh or the Awami League because he had resided at the same premises for the entire time he lived in that country. The Tribunal is satisfied that the applicant did not relocate or live elsewhere as suggested in his oral evidence, and that he lived at the same address in Bangladesh because he had no adverse profile to any person or group in that country.
The applicant’s evidence about whether he was under investigation or the subject of any criminal investigation or charge was vague, confused and contradictory. The Tribunal is satisfied that if there was any truth to the suggestion that the applicant was wanted by the authorities in connection with an investigation, or that he was subject of a criminal charge, he would have provided consistent evidence about something as basic as that. The Tribunal is satisfied that the reason the applicant’s evidence was vague, confused and contradictory was because the applicant is not under investigation or faces any charge in Bangladesh. The Tribunal is satisfied that the applicant fabricated this in order to be granted a protection visa, and that his willingness to do so shows suggests that other aspects of his evidence may be similarly fabricated.
The absence of any corroborative medical evidence to confirm the applicant’s admission to a hospital or clinic following the assaults in December 2010 as well as that of December 2011 is also telling. The Tribunal was not persuaded by the applicant’s explanation that such documentation does not exist in Bangladesh. Rather, the Tribunal is satisfied that the reason the applicant did not provide such documentation is because there was no admission to any medical facility because the applicant was not assaulted or harmed as he claimed.
The fact that the applicant did not declare in his visitor visa application form that he was coming to Australia to avoid harm is also telling. It either demonstrates that the applicant is prepared to tell untruths in order to get a particular outcome (in this case, being able to come to Australia) or alternatively, demonstrates that the applicant did not experience any of the harm he claimed in Bangladesh and manufactured his protection claims once he was in Australia in order to be granted a protection visa. Given the fact that the applicant explored studying in Australia on a student visa but decided not to do so because of his view that the grant of this type of visa would be unlikely, the Tribunal is persuaded that it is the later of the two inferences.
The Tribunal is also satisfied that the applicant’s failure to detail his claimed assault at the 2010 protest is indicative that is not true. The Tribunal is not satisfied that the failure to raise the assault in the protection visa application form is attributable to negligence on the representative’s end. If there was any truth to that complaint, the Tribunal is satisfied that such an admission would have been made by the representative, which it has not. In the context of the 2010 protest attendance, the Tribunal observes that newspaper report containing the photograph of the applicant was not included in the protection visa application nor provided to the delegate. Instead, it was provided to the Tribunal shortly before the Tribunal hearing. While the Tribunal accepts on the basis of the photograph that the applicant attended the protest, the Tribunal is satisfied that while the applicant attended the protest, he was not harmed in any way because if he had been, it would have been referred to in the protection visa application form. Rather, the Tribunal is satisfied that the applicant decided to provide evidence that he attended a protest and fabricate a narrative about what happened as a result of his attendance in order to lend credibility to his claims. The Tribunal is satisfied that this demonstrates that the applicant has a flexible approach to the truth and is prepared to manufacture evidence in order to get a protection visa.
Considering the evidence as a whole, and the facts as the Tribunal has found them, the Tribunal is not satisfied that the applicant was a member of the BNP or involved with that organisation in any way. The Tribunal is not persuaded that because the applicant was able to identify some ideology or his reason for supporting that party that means his claims are credible. The Tribunal is not satisfied that the applicant has ever been harmed in connection with his support of the BNP in Bangladesh. The Tribunal is satisfied that the claims were made up in order for the applicant to be granted a protection visa.
The Tribunal is not satisfied that that the applicant has a well-founded fear of persecution in Bangladesh due to his claimed involvement or support of the BNP (in any of its forms). The Tribunal is not satisfied that the applicant is of any adverse interest to any person, group or authority in Bangladesh based on his claimed political profile, because the Tribunal is not satisfied that there is any truth to that claimed political profile. The Tribunal is satisfied that the claims were made up in their entirety. The Tribunal is also not satisfied that there is a real risk of significant harm to the applicant in Bangladesh due to any actual or perceived involvement with the BNP as the Tribunal is not persuaded of the truth of the applicant’s factual narrative concerning this involvement.

Concerning the fact that the applicant has had his photograph published in 2010 and 2011 in Bangladeshi newspapers, the Tribunal is not satisfied that because the applicant attended two protests or by virtue of the fact that he was photographed attending those protests, he would therefore be imputed to be opposed to the Awami League or Government of Bangladesh. The DFAT Country Information Reports do not suggest, and nor do the various reports submitted by the applicant to the Tribunal, that if a person merely attends two protests in Bangladesh there is a real chance they will suffer serious harm because they will be viewed as opposing the Awami League or the Bangladesh Government. Nor do the DFAT Country Information Reports or the various reports submitted by the applicant to the Tribunal, suggest that merely attending two protests in Bangladesh means that there is a real risk the applicant will suffer significant harm in Bangladesh.
The Tribunal finds it remote and fanciful to think that because the applicant attended protests in 2010 and 2011 that the Awami League or Bangladesh Government would form an adverse interest in the applicant and that there is a real risk that he will be harmed. The fact that the applicant was able to depart Bangladesh on his own passport demonstrates that no such risk exists.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
For the reasons give above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3503

11 July 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice