1902666 (Refugee)

[2024] AATA 2253

1902666 (Refugee) [2024] AATA 2253 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Md Sirajul Haque (MARN 9790005)

CASE NUMBER:  1902666

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Papadopoulos

DATE:23 April 2024

PLACE OF DECISION:  Sydney

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

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

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

Statement made on 23 April 2024 at 12:13pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member of student wing and local organiser – local campaigning and disputes with supporters of other party – attendance at protests and rallies – successful business and financial support – increasing demands for money by supporters and politician of other party, followed by threats – membership, activities and official positions in Australia, but limited evidence of profile – social media activity – mental health – some vague, exaggerated or changeable evidence on critical matters – country information – real chance of serious harm – members of family unit wife and children – decision under review remitted

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

CASES
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The first applicant] (hereinafter referred to as either the applicant or the first named applicant) is a [Age] year old male who claims to be a citizens of Bangladesh.  [The second applicant] (the second named applicant) is a [Age] year old woman who claims to be a citizen of Bangladesh. [The third and fourth applicants] are the children of the applicant and the second named applicant.

3. The applicant first arrived in Australia [in] May 2017, having been granted a Subclass 600 Visitor (Class FA) visitor visa.  He departed Australia [in] May 2017.  The second, third and fourth named applicants were granted Subclass 600 (Visitor) visas on 31 August 2017.  Thereafter, the applicants arrived together in Australia [in] December 2017.  The second, third and fourth named applicants have remained in Australia since.  However, the applicant departed Australia again [in] January 2018.  He returned to Australia [in] February 2018 and has not departed since.

4. The applicants applied for the protection visas on 9 March 2018.  The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia owed protection obligations.

5. This is an application for review of the delegate’s decision.  The applicants were represented in relation to the review. The applicant attended a Tribunal hearing on 8 February 2024

6. The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection.  The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.  A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.

7. For the following reasons, the Tribunal has concluded that the first named applicant is a refugee within the meaning of s 5H of the Act and that the decision under review should be remitted for reconsideration with the direction that he satisfies s 36(2)(a) of the Act and that the other applicants satisfy s 36(2)(b)(i) of the Act on the basis that they are members of the first named applicant’s family unit.

   CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

   Protection visa application

8. According to information contained in his protection visa application, the applicant:

   ·     is a [Age] year old Bangladeshi national, who was born in Comilla, Bangladesh.

   ·     and the second named applicant were married [in] July 2010 and that the third named and fourth named applicants are their children.

   ·     first became involved with the Bangladesh Nationalist Party (BNP) through his activities with the party’s student wing, the Jatiotabadi Chatra Dal (JCD), when he was a student in 1999.  In 2000, he became the Organising Secretary of the JCD in [Union], a position he held until 2004.

   ·     completed his studies and then became a relatively successful businessman within Bangladesh’s [industry].

   ·     worked to support the BNP in various ways over the years, including by way of providing financial support.  Due to this financial support, and his profile as a businessman, the applicant’s association with the BNP became widely known in the business and political circles.

   ·     was visited by Awami League cadres after he started his own business.  They demanded money from him in order to support their activities.  These cadres were aligned to an Awami League politician, namely [Official A][1].  He was required to pay sums of 50,000 or 100,000 Bangladeshi Taka (BDT).  His wife advised him to pay this money to the Awami League cadres so as to avoid any issues.  He did not consider these sums to be significant in comparison to the benefit of being able to continue to conduct business.

   [1] In their various statements and submissions, the applicant alternatively spells the name of this MP as [Spelling 1] or [Spelling 2].  For the sake of consistency, the Tribunal will refer to this individual as [Official A] as specified on the Bangladeshi parliamentary website: [deleted]

   ·     was called by [Official A] in early 2016.  [Official A] demanded he pay BDT10,000,000 if he wanted to continue his business.  He and his wife felt threatened by [Official A].  He advised [Official A] that they could afford to pay BDT3,000,000 and pay the rest gradually.  Six-months later he paid a further BDT 2,000,000.  Later, he paid a further BDT500,000.  By that stage he had paid a total sum of BDT15,000,000.[2]   

   [2] The Tribunal observes the internal consistency in these claims, whereby the total amount paid was BDT5,500,000 rather than BDT15,000,000.

   ·     received a demand from [Official A] in mid-June 2017 that he pay a further BDT20,000,000.  [Official A] wanted this money to help the Awami League prepare for the 2018 election.  People sent by [Official A] demanded these funds and he felt it necessary he make these payments in order to continue business. He decided to try negotiate with [Official A].  Through his work in the [industry], he knew an Awami League activist and financier, [Mr B], who had a close association with [Official A]. He trusted [Mr B] to assist him in negotiating with [Official A] as he was unable to pay the sum of BDT20,000,000.  It was around this time that he decided to come to Australia with his family.

   ·     visited Australia with his family in December 2017.  It was during this visit he became concerned he would lose his business. [Mr B] persuaded him to return to Bangladesh, where he would set up a meeting with [Official A] to resolve any issues.  [Mr B] emphasised that he wanted to help him remain in the [business], and told him that his 450 staff in Bangladesh were relying upon him.  Against his wife’s wishes, he returned to Bangladesh [in] January 2018 where he engaged in ‘continuous negotiation’ with [Official A] through [Mr B].  He then paid the salaries of his staff and told them to look for other jobs because his business was running at a loss.  During the final negotiation on 4 February 2018, [Official A] gave him one week to pay the money. Out of fear of [Official A] becoming aware of his decision to flee the country, the applicant appointed power of attorney to a close friend to sell the business.  He then fled Bangladesh [in] February 2018.

   ·     fears he would face serious harm from Awami League activists, [Official A] and his gangs if he returns to Bangladesh.  He fears that [Official A] and his people are angry because he ‘cheated’ them and that they would be motivated to harm him if he returns to Bangladesh so as to ‘teach a lesson to other business people’. 

   ·     fears abduction, torture, degrading and inhuman treatment and possibly being killed because:

   o   he is a BNP supporter and a member;

   o   he is a financial contributor to the BNP;

   o   he will be extorted and threatened by Awami League activists and leaders.

   ·     is unable to obtain effective protection from the Bangladeshi authorities because [Official A] is an Awami League [leader].

   ·     cannot safely relocate to other parts of Bangladesh because he will be identified due to his BNP affiliation and [Official A] will find him and his family through his ‘network of influence’.

   Supporting documents

9. By way of summary, the following documents were lodged with the Department in support of the protection visa application:

   ·     Department Online Application Form: Application for a Protection Visa, lodged with the Department on 9 March 2018;

   ·     Department Form 956 - Advice by a migration agent/exempt person or providing immigration assistance indicating that the applicant was assisted by the representative, Mr Sutharshan Mahalingam (MARN 0961664), in relation to his protection visa application;

   ·     Statutory declaration made by the applicant on 8 March 2018;

   ·     Bangladeshi passports for each of:

   o   the applicant (issued [2015], expiry [2020])

   o   the second named applicant (issued [2017], expiry [2022])

   o   the third named applicant (issued on [2017], expiry [2022])

   o   the fourth named applicant (issued on [2017], expiry [2022]);

   ·     Taxpayer Identification Number Certificates for each of the applicant and the second named applicant;

   ·     The applicant’s membership card for the [City/District] Chamber of Commerce of Industry;

   ·     Business documents for [Company 1] including:

   o   Memorandum and Articles of Association for [Company 1];

   o   Certificate of Incorporation for [Company 1], dated 12 February 2014;

   o   Membership Certificate: [Industry Association];

   o   Enrolment Certificate: Export Promotion Bureau;

   o   Membership Certificate: [City/District] Chamber of Commerce and Industry;

   o   Industrial project confirmation letter issued by [Government department] [in] March 2014 indicating that the business rented its land and buildings but had investments to the value of BDT19,720 million (machinery and equipment BDT8,220 million; working capital BDT7,5000 million; other BDT4,000 million);

   o   List of [machinery] owned by [Company 1];

   o   National Board of Revenue: VAT Certificate;

   o   National Board of Revenue: Income Tax Certificate;

   o   Bank statements for [Company 1] from [Bank];

   o   Western Union Outgoing Payment Confirmations relating to the business’ export trade with an Australian (orders made on various dates between [April] 2015 and [May] 2017);

   ·     Collection of photographs depicting the applicant at various BNP events and political protests in Sydney and in Bangladesh;

   ·     Letter from [Mr C], [member] of the [Location] Branch of the BNP dated 13 December 2018;

   ·     Submissions from the representative dated 11 December 2018 containing references to and selective summaries of a range of country information sources, recent Tribunal decisions, and media reports.

   Summary of the delegate’s decision

10. On 24 January 2019, the delegate made a decision not to grant each applicant a protection visa.  In terms of their findings of fact, the delegate found that:

    ·     the applicant is an ordinary member or low level supporter of the BNP;

    ·     the applicant engaged in political activities in Australia;

    ·     the applicant was targeted by local Awami League supporters and affiliates in Bangladesh as a result of his political opinion in 2008 and 2013;

    ·     the applicant and his wife suffer from mental health issues;

    ·     generalised or mass violence is expected to escalate in the aftermath of the 2018 national election; and

    ·     the applicant fears harm upon return due to an increased risk of mass violence in Bangladesh associated with the 2018 national election.

    The delegate did not accept that:

    ·     the applicant was a high level or active member of the BNP in Bangladesh;

    ·     the applicant has a high political profile in Australia or is an active member of the BNP in Australia;

    ·     the applicant made major financial contributions to the BNP;

    ·     the applicant was a victim of extortion in Bangladesh;

    ·     the applicant departed Bangladesh because he feared persecution due to his political opinion or extortion;

    ·     the applicant is currently of interest to the Awami League, affiliated gangs or any of the Bangladesh authorities;

    ·     the mental health issues of the applicant and his wife were caused by harm or fear of harm as a result of the applicant’s political opinion or claimed extortion.

    Claims and evidence provided to the Tribunal

    The review application

11. On 6 February 2019, an application for review of the delegate’s decision was lodged with the Tribunal.  The applicants were originally represented by Mr Sutharshan Mahalingam (MARN 0961664) in connection with his review application.  From 28 January 2020, the applicants were represented by Mr Md Sirajul Haque (MARN 9790005).

    Pre-hearing submissions and evidence

12. Prior to the hearing, the Tribunal received a submission from the representative dated 1 February 2024.  The Tribunal also received the following additional material:

    Statements

    ·     Statement from the applicant, dated 1 February 2024;

    ·     Statement from the second named applicant, dated 1 February 2024.

    Documents relating to the applicant’s Australian business [Company 2]

    ·     ASIC Certificate of Registration: [Company 2];

    ·     ARBS: Director Identification number for the applicant;

    ·     ATO: PAYG statements;

    ·     Print Activity Statements- [Company 2] – October – December 2023;

    ·     ATO: Summary of Superannuation Contributions: [Company 2];

    ·     Letters of Support from [Charity 1] relating to the charitable contributions of [Company 2], dated and 3 August 2023 and 6 January 2024;

    ·     Photographs showing the applicant’s involvement with [Charity];

    ·     Receipts for donations made from a Business Transaction Account paid to [named persons], [Organisation 1];

    ·     Invoice from [Organisation 2] to [Company 2], dated 13 December 2023.

    Photographs, posters and social media posts relating to the applicant’s political activities including:

    ·     various photographs depicting the applicant engaging in protests and political leaflet distribution in Australia;

    ·     eight photographs depicting the applicant engaging with various BNP officials;

    ·     photographs depicting the applicant’s involvement in a BNP Australia discussion meeting;

    ·     photographs depicting the applicant attending a [protest] in front of [Venue] in [city], attending a webinar arranged by [named organisation], attending a zoom meeting arranged by the BNP;

    ·     a poster published by applicant while acting as [Official position 1] of [BNP Australia].

    Letters of support

    ·     Letter from [Mr E], [official] of BNP Australia, dated 30 December 2023;

    ·     Letter from [Mr F], President of the BNP, dated 4 January 2024;

    ·     Letter from [Mr G], Former Lecturer, School [deleted], [University, Australia], dated 28 January 2024;

    ·     Letter from [Mr H], Assistant Professor, [University 1], Dhaka, dated 31 January 2024;

    ·     Letter from [Mr I], Professor of [deleted], [University 2], Bangladesh, dated 27 January 2024.

13. The Tribunal also received the following additional material:

    Country information

    ·     Odhikar Report: Annual Human Rights Report 2022- Bangladesh (Published 30 January 2023);

    ·     Amnesty International Report- Bangladesh: Dissent Under Attack- Submission to the 44^th Session of the UPR Working Group, November 2023;

    ·     Human Rights Watch: No Place for Criticism - Bangladesh Crackdown on Social Media Commentary: 9 April 2018;

    ·     Reporters without Borders: Bangladeshi journalists, cartoonist, arrested for Covid-19 coverage: 4 March 2021.

    Media reports

    ·     Three links to videos on YouTube (and accompanying translations) relating to [Official A];

    ·     The Business Standard Report: [February] 2023;

    ·     Bangladesh Post English, Australian MP Demands fair elections, Khaleda’s release, Magnitsky style sanctions (undated);

    ·     The Diplomat: Bangladesh Silencing Teenage Dissent: 29 June 2020;

    ·     Scroll.in: Bangladesh lecturer held for Facebook post allegedly mocking former minister who died of Covid-19;

    ·     UCA News: Attack on press freedom intensifies in Bangladesh: 5 May 2020;

    ·     Dhaka Tribune: Digital Security Act: More journalists facing arrest, cases amid hard days of Covid-19 crisis: 7 May 2020;

    ·     The Guardian: Bangladeshi Journalist is jailed after mysterious 53-day disappearance: 8 May 2020;

    ·     New Age Bangladesh: 8 Journalists held in Bangladesh in a week under Digital Security Act: 8 May 2020;

    ·     The Eurasian Times: How the Draconian Digital Security Act of Bangladesh is Muzzling Press Freedom, Secular Voices: 26 May 2020;

    ·     BBC News: Farhad Mazhar: Bangladeshi human rights campaigner found on bus: 3 July 2017;

    ·     Daily Sun: Seven Years of Ilias Ali’s Disappearance; Sylhet BNP announces 3-day prog: 17 April 2019;

    ·     The Daily Star: Journalism remains fraught with risks and persecution: 2 November 2020;

    ·     Australian Muslim Times: Motion in NSW Parliament for democracy in Bangladesh 26 October 2020.

    Political campaign letters

    ·     Letter to Mike Pompeo, US Secretary of State, from US Senate Committee on Foreign Relations, dated 27 October 2020;

    ·     Letter to Anthony Albanese, Prime Minister of Australia, Re Bangladesh Elections, dated 4 October 2023, signed by 11 Australian Senators and 3 Australian MPs;

    ·     Letter from Anthony Albanese to David Shoebridge MP, dated 1 November 2023, re Australian Government’s engagement with Bangladesh on the issue of Human Rights;

    ·     Letter to President Biden, dated 25 May 2023, from six members of the US Congress, requesting urgent action to stop human rights abuses in Bangladesh;

    ·     Letter from US House of Representatives to the US Ambassador to the United Nations, dated 27 July 2023.

    The hearing: oral evidence and supporting documents

14. The applicant appeared before the Tribunal on 8 February 2024 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The Tribunal also heard oral evidence from the following witnesses:

    ·     [Mr E] (evidence heard in-person);

    ·     [Mr F] (by telephone).

15. At the outset of the hearing, a Tribunal officer was given, and made a photocopy of, the following documents that were later returned to the applicant during the hearing:

    ·     the applicant’s Bangladeshi passport (issued [2015]; expiry [2020]);

    ·     two photographs of the applicant attending BNP celebrations in 2024;

    ·     screenshot depicting the applicant attending a BNP Australia Committee Zoom meeting in December 2023;

    ·     ‘Full prisons and false charges: Bangladesh opposition faces pre-election crackdown’, The Guardian, 10 November 2023;

    ·     [Mr E]’s business card;

    ·     original and translation of a letter from [Mr E], BNP President of the [Union] dated [January] 2024.

1. During the hearing, discussions were held about the applicant’s personal, family and business background in Bangladesh, his affiliation with and support of the BNP in Bangaldesh and Australia, his political activities in both Bangaldesh and Australia, the past harm he claims to have suffered in Bangladesh, his proposed activities in Bangaldesh and the reasons why he fears returning to Bangladesh.  The applicant provided extensive oral testimony in respect of those issues.

2. Where relevant, the Tribunal refers to the evidence provided at hearing in its findings and reasons below.

   Post-hearing submissions and evidence

3. On 12 February 2024, the Tribunal received a letter from the representative to which the documents were attached:

   ·     various photographs of the applicant at his business premises in Bangladesh;

   ·     original and translation of a letter from the applicant on [Company 1] letterhead dated 12 February 2018 stating, in part, as follows:

   It being informed for all of the workers, employees and officers hereby this factory would be shutdown from 13/02/2018 A.D. to sine die for a special reason.  Salary payment date of the current month would be notified next time.

   ·     various [Company 1] debit vouchers made out to business suppliers on 21 March 2018, 27 March 2018 and 8 May 2018.

   CRITERIA FOR A PROTECTION VISA

   Nationality: Country of reference/receiving country

4. The applicants claim to be citizens of Bangladesh and have provided to the Department copies of their Bangladeshi passports.  The delegate was satisfied that the applicants were using their own identity and documents.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of Bangladesh. The Tribunal accepts that Bangladesh is their receiving country for the purpose of assessing their claims for protection.

   Credibility

5. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[3]  There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

   refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

   [3] Fox v Percy (2003) 214 CLR 118

6. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[4]  As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

   [4] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

7. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries.  As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

8. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[5]   A similar approach is taken in the Department’s Refugee Law Guidelines[6]  and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[7] which provides useful guidance for this Tribunal.

   [5] SZLVZ v MIAC [2008] FCA 1816 at [25]

   [6] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)

   [7] UNHCR Handbook, re-issued February 2019 at [203]–[204]

9. In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[8]  The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[9] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[10]

   [8] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

   [10] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

10. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[11]   As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[12] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [11] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)

    [12] Ibid

11. In determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters.  In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims.  The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[13]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[14]

    [13] MIMA v Rajalingam (1999) 93 FCR 220

    [14] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547

12. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed.  Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[15]  As the Tribunal explained to the applicant at the outset of the hearing, s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.  The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.  Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.  It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.  There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[16] 

    [15] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170

    [16] Sun v MIBP [2016] FCAFC 52 at [69]

13. In the present case, the Tribunal takes into account the applicant’s lack of familiarity with the Tribunal setting and their limited English language proficiency.  The Tribunal has also had regard to the AAT Migration and Refugee Division ‘Guidelines on Vulnerable Persons’.[17]  With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary. 

    [17] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)

14. The Tribunal has also taken into account the AAT’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence.  The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility.  However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

15. The Tribunal formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Bangladesh, but that at times he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection.  The Tribunal found various aspects of the applicant’s oral evidence vague, digressive and changeable.  On several occasions, he did not reply directly to the Tribunal’s question, but instead offered information relating to different incidents or topics, sometimes without specifying these.  Even after allowing for the possibility that this reflects some nervousness or stress, or that it is simply his presentational style, the Tribunal is concerned that the applicant was sometimes deliberately blurring his claims and evidence. The Tribunal’s full assessment follows.

    Assessment of claims

    Political activities in Bangladesh

16. The applicant particularised his claims in considerable written detail in submissions to the Department and the Tribunal and apart from some minor exceptions, he has given a generally consistent account of the type and level of political support he gave to the BNP in Bangladesh.  At hearing, he demonstrated sound knowledge of the BNP’s origins and the party’s ideology.  He also gave detailed evidence in relation to the ideological underpinnings of the BNP’s political philosophies and demonstrated insight into the party’s organisational structure. 

17. Taking into account the consistency between the applicant’s written claims and testimony at interview and hearing, the Tribunal accepts that the applicant:

    ·     became a member of the BNP in 1999 when he joined the JCD;

    ·     was an Organising Secretary of the JCD in 2001 where he helped organise party meetings at a local ward level;

    ·     supported [Mr J’s] successful election campaign in the [Constituency] during the 2001 national election by way of door to door canvassing and taking voters to booths on election day;

    ·     supported the BNP candidate during the 2002 [Union] election in Comilla by way of door to door canvassing;

    ·     supported [Mr K]’s unsuccessful election campaign in the [Constituency] during the 2008 national election and was involved in a dispute with Awami League supporters on election day;

    ·     supported [Mr C]’s unsuccessful election campaign during the 2009 Upazila election and was involved in a dispute with Awami League supporters on election day;

    ·     supported [Mr C]’s successful election campaign during the 2014 Upazila election by way of door to door canvassing and providing greater financial assistance to the campaign given the emerging success of his [business];

    ·     supported [Mr M]’s unsuccessful election campaign during the 2015 [Union] election by way of door to door canvassing and providing some financial assistance to the campaign and was involved in a dispute with Awami League supporters on election day;

    ·     attended protests and rallies in support of the BNP, including a rally in Dhaka in 2016 where he fell and injured himself in a crowd that was running away from police.

18. The applicant’s financial contributions to the BNP’s political campaigns were restricted to the making of payments that subsidised catering costs for BNP events and the transportation of BNP voters to polling booths.

    Extortion and related threats in Bangladesh

19. The applicant’s oral testimony in respect of the past harm he claims to have experienced in Bangladesh was generally consistent with his written claims and also consistent with country information reports about the treatment of BNP members and supporters by the ruling party and its supporters in Bangladesh. However, the Tribunal notes that the applicant’s wife did not attend the interview with the delegate or the Tribunal hearing so it was difficult to seek corroboration of some of these events which would indeed have strengthened these claims as these matters purportedly affected her mental health and well-being. That said, the Tribunal has difficulty with certain aspects of the applicant’s evidence in relation to his adverse experiences in experiences in Bangladesh. 

20. The Tribunal observes that the applicant had a tendency, at times, to embellish his evidence in relation to his claimed adverse experiences of harm. While the Tribunal is prepared to accept that some applicants may tend to exaggerate aspects of their claims when recounting past experiences, the Tribunal observes that the applicant gave a more credible and persuasive account at hearing in relation to the escalating threats and demands for money he received in Bangladesh and the degree to which he regarded these demands as threats rather than part of the ordinary cost of doing business in Bangladesh.

21. The Tribunal accepts that while various payments were made to [Official A] which totalled BDT 5,000,000, the Tribunal is of the view that the applicant paid these sums in order to continue operating his [business] and did not initially regard the making of such payments to be a significant impediment upon his ability to conduct business.  The Tribunal accepts in mid-2017 that the applicant was asked by [Official A] to pay BDT 20,000,000 in order to continue conducting business in Bangladesh.  From this point, the applicant sought to appease, and at times ignore, [Official A] in order to avoid making that payment.  This eventually gave rise to the applicant’s life being threatened, initially by way of a telephone call from ‘a man’ in or around August 2017 and later by [Official A] during a meeting [in] January 2018.  

22. At hearing, the applicant gave generally consistent and plausible evidence in relation to the escalating nature of the extortion demands and how they manifested into credible threats against his life which prompted him to move his family away from danger before returning to Bangladesh on one final occasion in an attempt to negotiate his way out of the problem he faced.  The Tribunal accepts that the applicant’s life was threatened in Bangladesh by [Official A] as a result of not paying BDT 20,000,000 to [Official A].

23. In the context of the escalating nature of the amounts being demanded from, and the pressure being applied to, the applicant by [Official A] and his agents, the Tribunal has formed the view that the applicant genuinely became fearful of persecution in Bangladesh during his last visit to Bangladesh in early 2018.  The applicant’s precautionary efforts to move his family to Australia in late 2017 are to be understood in the context of his personal efforts to return to Bangaldesh in order to negotiate some form of settlement with [Official A] with the view to saving his business and then resuming his life in Bangladesh with his family. 

    Political activities in Australia

24. The applicant’s claims in respect of his political involvement with the BNP in Australia are extensive.  The Tribunal accepts that the applicant became a member of BNP Australia in March 2018.  The Tribunal also accepts that he has been actively involved in the affairs of BNP Australia, by way of attending meetings and helping to organise volunteer efforts.  The Tribunal also accepts [Mr E]’s oral evidence at hearing that the applicant has donated about $600 per month to BNP Australia.

25. The applicant has also attended various rallies and public protests in Australia where critical statements have been made against Awami League leaders and policies.  However, there is little by way of persuasive evidence before the Tribunal to support the claim that the applicant has made comments to the media at such gatherings or could otherwise be personally identified as an influential or high-profile BNP leader, member or supporter who has engaged in conduct that would draw adverse attention from the Awami League should he return to Bangladesh.

26. While the Tribunal acknowledges the evidence relating to the support and engagement of various politicians with the BNP’s cause, the applicant was unable to provide detail at hearing in relation to the nature and degree of his involvement with these politicians and whether such involvement necessarily gave rise to him being, or being perceived to be, an influential or high-level BNP leader, member or supporter.

27. The Tribunal notes that various letters of support appear to have been written at the applicant’s request, to support his protection visa application. This may reflect the authors’ satisfaction that he is a genuine BNP supporter, but the letters are of limited value as independent corroboration of the applicant’s claimed positions and profile, particularly when compared to the oral testimony received at hearing and other material such as contemporaneous photographs of the applicant’s activities.  The Tribunal gives considerable weight to the oral evidence of [Mr E] at hearing where he told the Tribunal that BNP Australia has approximately 500 members and that the applicant has been the [Official position 1] of the organisation’s [group].  The Tribunal also accepts the applicant’s evidence at hearing that since June 2023 he has been one of [the members] of BNP Australia, a role that requires him to [do an organisational task] and take a more public profile in advocacy on behalf of the organisation. 

1. At hearing, the applicant claimed to have expresses his support for the BNP, and opposition to the Awami League, on social media.  He told the Tribunal that he opened his [Social media] account in 2016 or 2017 and was aware of the possibility of adverse consequences that might arise as result of his posts on [Social media].  He told the Tribunal that he.  At hearing, the applicant showed the Tribunal his [Social media] profile and the Tribunal observed that he had [Number] [Social media] friends and that his activity was largely limited to sharing and liking the posts of others which contained commentary critical of the Awami League and its leaders.  In response to the Tribunal’s suggesting that he did not have a social media presence that would garner adverse attention from the Bangladeshi authorities, the applicant indicated that most of his [social media] friends were fellow business people in the [industry] and suggested that the Awami league was ‘keeping tabs’ on him.  In the absence of independent corroborative material or other persuasive oral evidence on this issue , the Tribunal is not of the view that the applicant’s [Social media] friends have relayed details of his albeit limited anti-Awami League political expression on [Social media] to the authorities in Bangladesh. 

   Proposed activities in Bangladesh 

2. In terms of his business aspirations in Bangladesh, the applicant claimed at hearing that if he returned to Bangladesh he would have great difficulty recommencing business activities in Bangladesh because ‘90% of business people who are BNP supporters’ have had their businesses closed down.  Asked to provide the basis for that figure, the applicant indicated that he derived this estimate from his ‘connections in the business community’.  Again, in the absence of independent corroborative material or other persuasive oral evidence on this issue, the Tribunal is of the view that the applicant’s claim in this regard has been exaggerated.  Nevertheless, the Tribunal does accept that the applicant would face difficulty resuming business in Bangladesh for that reason, particularly if he resists requests to make further payments to Awami League cadres and politicians should he seeks to re-establish business operations in Bangladesh.  

3. In terms of his political aspirations in Bangladesh, the applicant stated at hearing that if he returned to Bangladesh he would resume his activities in support of the BNP.  Asked what he would do, the applicant did not offer any detailed evidence apart from an indication that he would face difficulty in Bangaldesh in mobilising support for the BNP given the Awami League’s oppression of opposition party movements. 

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

4. The Tribunal accepts that extortion of BNP-affiliated business owners by Awami League-affiliated politicians, cadres and gangs occurs in Bangladesh[18] and further accepts that the applicant has been subject to a range of verbal threats.  It is persuaded that there is a real chance such threats would resume should he return to Bangladesh.  In reaching this conclusion, the Tribunal acknowledges that these threats did not result in physical violence while the applicant was in Bangladesh and that the most recent threat occurred over six years ago.  However, the applicant has operated a successful [business] in Australia and would be returning to Bangladesh where it would be known among people in the industry, including those affiliated with the Awami League such as [Mr B], that he would likely have access to funds and has, in the past, proven to be susceptible to extortion and fearful of related threats.  

   [18] Department of Home Affairs, Country of Origin Information Services section, Standard q & report, Bangladesh: 20200915105753 – Extortion – Bangladesh National Party (BNP) – Business Owners – Land Grabbing (21 September 2020)

5. Turning to its consideration of the applicant’s political profile and BNP affiliation, the Tribunal notes that Bangladesh politics have long been dominated by the Awami League and the BNP and that the relationship between the two parties is characterised by longstanding enmity.[19] Inter-party political violence is ongoing though historically is most prevalent in the lead up to national or local elections.[20] Political conflict between the Awami League and its opponents peaked around the January 2014 elections - the most violent in Bangladesh’s history.[21]  High levels of political violence continued throughout subsequent years.[22]

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

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

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

   [22] For example, 'Annual Human Rights Report on Bangladesh 2018', Odhikar, 8 August 2019, p.9, 2019082714401620190827144016; 'Annual Human Rights Report 2019 Bangladesh', Odhikar, 8 February 2020, pp.70-71, 20200218104232; 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, pp.43-44, 76-77, 20210209153355; 'Country Policy and Information Note Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9, 20200928084218

6. According to DFAT’s latest advice,[23] the Awami League has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI). It is further reported that according to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. The report goes on to state that human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.

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

7. DFAT further reports that BNP members allege that they have been subjected to enforced disappearance and its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them by Awami League members occurs with impunity and DFAT assesses that allegations of violence against BNP figures are credible.

8. According to DFAT there are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. DFAT reports that those with seniority and reputation are more likely to attract government attention; but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges.

9. Various reports and news articles, including DFAT’s latest country information report, indicate that ruling parties in Bangladesh, both the Awami League and the BNP, and their affiliated organisations control state machinery and exploit it to supress their opposition while in office. The police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[24] An August 2021 Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances, and human rights organisations in the country assess that the RAB is responsible for more enforced disappearances than any other unit.[25] On 10 December 2021, the US government imposed sanctions on the RAB and several of its former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances.[26] The Awami League also uses the courts and legal processes to suppress opponents including through laying fictitious charges against opponents.[27]

   [24] BTI 2022 Country Information Report: Bangladesh, Bertelsmann Stiftung, 23 February 2022

   [25] Bangladesh: 86 victims of Enforced Disappearance Still Missing, Human Rights Watch 16 August 2021

   [26] Bangladesh: Stop Reprisals Against Victims, Activists, Human Rights Watch, 7 April 2022; UN: Ban Abusive Bangladesh Unit from Peacekeeping, Human Rights Watch 20 January 2022

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

10. DFAT further reports that the patronage-nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members) and thus influence and capacity to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time but noted that this could change in the lead up to the January 2024 national elections.  That said, news sources indicate that, as in the past, the national election recently held on 7 January 2024 resulted in increased harassment and violence directed at opposition parties and their supporters. A Voice of America news article[28] published in early December 2023 indicated that the ‘police in Bangladesh killed one person and wounded more than 60 people in Dhaka when they fired upon activists and members of the BNP’. It is stated in the article that the situation across Bangladesh is volatile as the BNP geared up for major political protests. It is reported that the police arrested thousands of BNP activists in a crackdown in the preceding month.[29] A BNP Senior Joint Secretary was arrested along with 300 other party leaders and activists. Additional articles provided in submissions also indicate that BNP rallies in recent months have come under attack in different districts of the country resulting in further deaths and injuries of BNP activists. An Al Jazeera news article dated 11 October 2022[30] quotes a BNP spokesperson saying that thousands of party activists have been hit with ‘fake’ charges of violence in a widespread crackdown by the authorities.  It is reported in that article that political demonstrations have been marred by violence and that the police had not intervened when BNP rallies came under violent attack by activists of the ruling AL party.

    [28] ‘Bangladesh Arrests Thousands of Political Activists Ahead of Opposition Protest’, Voice of America, 7 December 2022

    [29] ‘Bangladesh arrests 8,000 opposition activists; report’, France 24, 5 November 2023

    [30] ‘Bangladesh opposition says 4,000 charged in gov’t crackdown’, Al Jazeera, 11 October 2022

11. Furthermore, post-election reports indicate that instability looms over Bangladesh as opposition supporters continue to criticise the much-vaunted stability under Prime Minister Hasina’s rule[31] and observers maintain that the Prime Minister’s personalised autocracy will likely face ongoing opposition and popular unrest as the economy continues to cause serious hardship to the middle and lower-middle classes.[32] 

    [31] ‘Instability looms over post-election Bangladesh’ The Diplomat, 26 January 2024

    [32] ‘A one-sided election risks Bangladesh’s future’, 360info, 4 January 2024

12. As noted above, the Tribunal accepts the applicant was a supporter of the BNP in Bangladesh, particularly during past election campaigns.  The Tribunal also accepts, based on the oral and documentary evidence, that the applicant has continued his engagement with the BNP in Australia.  The Tribunal acknowledges the applicant has expressed an interest in furthering his political involvement with the BNP in the future. The Tribunal has considered the applicant’s testimony but is not persuaded that a relatively low-level [position] with the BNP in Australia will put the applicant on an automatic trajectory for an influential, high-profile or leadership position within the BNP in Bangladesh.  Nor is the Tribunal persuaded that his previous support activities of the BNP in Bangladesh and his recent elevation to the position of [deleted] of BNP Australia means that his elevation to an influential BNP leadership position in Bangladesh is assured.  However, the Tribunal is persuaded that the applicant does have an interest in financially supporting the BNP in Bangladesh and that there is a possibility he will seek to do so in the future.

13. Having considered the available evidence, the Tribunal is satisfied that should the applicant return to Bangladesh now or in the reasonably foreseeable future, he will wish to show his support for the BNP along the lines of his past and present involvement.  While he no longer owns and operates a [business] in Bangladesh, which the Tribunal considers formerly raised his profile with the Awami League such that he became the subject of extortion threats, the Tribunal is nevertheless persuaded he would once again face threats given the prospect that he would still be perceived as a successful, and potentially wealthy, businessman with BNP affiliations.   Irrespective of the January 2024 election outcome, an election which had been boycotted by the BNP, it is clear from the above reporting that BNP supporters and their families have been targeted across the country by the Awami League regime prior to and following that election.   The Tribunal considers the applicant will be motivated to participate in BNP activities aimed at opposing the Awami League, including attending protest marches and rallies, as he seeks to advocate for the restoration of democracy in Bangladesh.  As noted above there are already reports of heightened political tensions and violence aimed at BNP activists involved in such activities.

14. The Tribunal considers the applicant’s profile as a successful businessman and proposed political activities will heighten the risk of him being identified by Awami League politicians, cadres and gangs as a BNP supporter who has, in the past, been susceptible to threats and extortion. 

15. The Tribunal has also had regard to the applicant’s activity on social media.  According to DFAT,[33] social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. However, sources told DFAT that certain topics on social media are more likely than others to attract government attention.  These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam.  The government does not have the capacity, nor perhaps the interest, to monitor all social media posts.  The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative.  Journalists and others with a profile are much more likely to have their social media targeted.

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

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

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

18. The Tribunal has reviewed the [Social media] posts provided by the applicant. They predominantly involve him commenting upon the original posts of other [Social media] users.  The applicant generally comments upon posts that call for the restoration of democracy in Bangladesh and the efforts made by the BNP to achieve this.  While the applicant has liked and shared posts that are critical of the Awami League’s leadership and policies, his social media presence is limited. 

19. The Tribunal acknowledges DFAT’s advice above that the government does not have the capacity, nor perhaps the interest, to monitor all social media posts and comments and that the risk of a post or comment being noticed and given adverse attention is greater for higher-profile people. Available evidence indicates that low-profile social media users are occasionally targeted and that people who organise protest action online are monitored.  While the Tribunal considers the topics which are posted by the applicant are among those considered by DFAT to likely attract government attention, the applicant has not engaged in any significant commentary on those topics.  Furthermore, the applicant has not provided any evidence in relation to his proposed social media activities should he return to Bangaldesh.  On this basis, the Tribunal considers that there is not a real chance that he would attract adverse attention from the authorities which could result in him being arrested and charged with an offence under the DSA or falling victim to physical violence.

20. Nevertheless, as stated above, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm, including physical violence, from Awami League politicians, cadres and gangs because he is a successful businessman who is affiliated with the BNP.

21. In light of the country information discussed above, the Tribunal is satisfied that effective protection measures will not be available to the applicant in Bangladesh against the harm he fears. The Tribunal is also satisfied that the harm the applicant fears relates to all areas of the country and that relocation within Bangladesh will not offer the applicant protection from the harm he is likely to face on return to Bangladesh.

22. For these reasons, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future for reason of him being a successful business person who is affiliated with the BNP. Therefore, the Tribunal finds the applicant has a well-founded fear of persecution in Bangladesh and satisfies the criterion set out in s 36(2)(a) of the Act.

23. Section 36(3) provides that Australia is taken not to have protection obligations to non- citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. Based on the information before it, the Tribunal is satisfied that the applicant does not have a right to enter or reside in a third country.

    Conclusion

1. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

2. Given the second, third and fourth named applicants are members of the first named applicant’s family unit, the Tribunal is satisfied that each of the second, third and fourth named applicants meet s 36(2)(b)(i) of the Act.

   DECISION

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

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

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

   Peter Papadopoulos
   Member

   
   

   Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958

   The relevant law

   The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

   Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.

   If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted below.

   Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.

   Mandatory considerations

   In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Extract of key provisions of the Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)    that is not inconsistent with Article 7 of the Covenant; or

   (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)    that is not inconsistent with Article 7 of the Covenant; or

   (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)    for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)    for the purpose of intimidating or coercing the person or a third person; or

   (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H   Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:    For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J    Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)    the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)     alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)    conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)    alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)     conceal a physical, psychological or intellectual disability;

   (v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)     alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)    the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)    significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K   Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)     the first person has ever experienced; or

   (ii)    any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L   Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)    a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)    any of the following apply:

   (i)     the characteristic is an innate or immutable characteristic;

   (ii)    the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)    the characteristic distinguishes the group from society; and

   (d)   the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)    protection against persecution could be provided to the person by:

   (i)     the relevant State; or

   (ii)    a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)    the person can access the protection; and

   (b)   the protection is durable; and

   (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36    Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (a); and

   (ii)    holds a protection visa of the same class as that applied for by the applicant; or

   (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (aa); and

   (ii)    holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)    the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)    the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …