1903716 (Refugee)
[2023] AATA 1020
•19 January 2023
1903716 (Refugee) [2023] AATA 1020 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903716
COUNTRY OF REFERENCE: Bangladesh
MEMBER:David McCulloch
DATE:19 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 January 2023 at 8:36am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party member – particular social group – political violence – physical assault – detention – applicant’s plans to finish his studies in Australia – security situation in Bangladesh – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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 for Home Affairs on 23 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 22 March 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 13 January 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages. However, the applicant indicated that he would communicate in English and only use the interpreter if required. The use of the interpreter was not needed by the applicant during the hearing.
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–5LA, 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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 30 November 2022, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is whether protection criteria are met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history is extracted from the delegate’s decision as follows:
16/11/2009 Lodged student visa (TU-572) application 04/02/2010 Granted TU-572 visa, valid till 19/09/2011 [March 2010] Arrived 06/09/2011 Lodged Student visa (TU-573) application. Granted Bridging visa 04/07/2012 Granted TU-573 visa, valid till 30/08/2014 [October 2012] Departed [December 2012] Arrived on TU-573 visa 03/09/2014 Lodged TU-573 visa application 10/09/2014 Granted Bridging visa 28/01/2015 TU-573 visa refused 16/02/2015 Lodged Migration Review Tribunal (MRT) application – TU-573 visa refusal 11/08/2016 Granted Bridging visa 29/06/2016 MRT outcome – affirmed TU-573 visa refusal [July 2016] Lodged Federal Court (FC) application – TU-573 visa refusal 11/08/2016 Granted Bridging visa [February 2017] FC outcome – Minister win [March 2017] Initiated s 351 Ministerial Intervention (MI) request
The Tribunal notes the following from the application forms for the protection visa. The applicant was born on [date] in Dhaka, Bangladesh. The applicant indicates that mental health issues need to be considered when being interviewed. The applicant is a Sunni Muslim and from the Bengali ethnic group. The applicant has never been married or in a de facto relationship. The applicant lists both parents, [and specified family members] living in Dhaka. The applicant is in touch with them by phone. The applicant lists one address lived at from birth until February 2010 in Dhaka. The applicant finished high school in [year]. [In a specified year] the applicant undertook a ‘[degree]’ at [a named] University in Bangladesh. [Between specified years] the applicant undertook a [different degree] at a college in Dhaka. In Australia the applicant has undertaken an English-language course, [and specified qualifications].
The applicant returned to Bangladesh in October 2012 to see his sick mother. He had to extend his holidays because his father had a road accident.
The applicant provided a written statement dated 22 March 2017 setting out claims for protection as follows (not corrected for spelling or grammar):
The reason I seek protection in Australia is on the basis of my active and imputed political opinion supporting the Bangladesh Nationalist Party in Bangladesh. My family is active BNP supporters. In fact my father was a member of the BNP [specified group] and my brother is a member in our local BNP committee and have close links with [Leader A], a well-known BNP leader. I involved with political activities with the Chatra Dal (JCD), student wing of the BNP at my college [named] in 2003. I later (in mid 2004) became the treasurer of the JCD in my college. After completing the college, I involved with JCD in my [local area] in 2005. In 2008, I actively involved in supporting our leader [Leader A] to get nomination from the BNP. Unfortunately, he could not get the nomination and the BNP nominated [Leader B] and I actively supported his election campaign. Due to my active involvement, I faced intimidation and threats from the Awami League party members. In end 2007 at [Location 1], when we involved in our political activities, the Awami League activists led by [leader name] attacked us and as a result of the attack I sustained minor injuries. In 2010, due to the quarrel we had with the Awami League activist, my friends and I were taken to the police station. My brother and father begged the local Awami league leader and got me released form the police. I came to Australia in 2010 and involved with Australian BNP and participating in the programs and meetings. In 2012, I returned to Bangladesh to see my family because my father was in a critical medical condition due to an accident. Due to the threats and harassments, BNP activists faced during that time, I could not visit the hospital often to see my father. Further, during that period, BNP called for strike and as a result of that the Awami League activists with the support from the police unleashed violence against BNP activists. Due to the threats targeted against the BNP activists, I was scared to go out of the my place and restricted my movements. I fear due to my political opinion and activities supporting the BNP, I would be targeted and seriously harmed and would face degrading, inhuman and cruel treatment if I returned to Bangladesh. I fear I can not get effective protection from the police because the Awami league is in power and the police would not protect people like me. I fear there is no place in Bangladesh safe for BNP activists due to the continuing human rights abuses targeting BNP activists like me.
The applicant participated in an interview with the delegate on 28 November 2019. The Tribunal notes from that interview the applicant indicating that if he could put down a security bond to finish his studies in Australia he would undertake then to leave the country.
On 5 January 2023 the applicant provided an additional written statement to the Tribunal. The statement outlines his migration and other history in Australia. It indicates general security problems in Bangladesh and that the applicant will return to Bangladesh as a useless person. The statement indicates that the applicant just wants to finish his study and then return to Bangladesh and was forced to apply for a protection visa to facilitate this. The statement indicates that Australia needs more migrants, students and workers and if there is any way he can get a visa to study and work for the next three years he will leave Australia forever.
Independent information
The 2022 DFAT report on Bangladesh provides the following information:
POLITICAL OPINION (ACTUAL OR IMPUTED)
Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.
Awami League (AL)
The Awami League (AL) was established in 1949, with Mujibur Rahman, the father of current Prime Minister Sheikh Hasina, playing a key role. It has been in power since 2009.
At the top of the party is the Central Committee, known as the Presidium. There are 15 members of this committee, including the Prime Minister. The Presidium is part of an 81-person Central Working Party and is supported by an advisory committee of technical advisers. Each district and upazila has its own committee and people join political auxiliary organisations and rise up through the ranks.
The AL has made efforts in recent years to increase social inclusion, including through the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they had experienced less discrimination and violence under the AL in its recent terms (compared to earlier periods) and less discrimination and violence than when the (now opposition) Bangladeshi Nationalist Party (BNP) was in power.
Internal party violence has been reported in the AL, including in the lead-up to the 2018 election, and during sub-national elections and student organisation elections. This violence is usually about disputes over candidate pre-selection or internal disputes between business people. While sometimes described as ‘factional’ violence, the ‘factions’ may in fact be personality or patronage-based rather than ideologically based. The party has strong disciplinary policies to deal with rogue candidates that can be activated in such circumstances to expel members from the party.
The party engages in recruitment activities throughout the year. Recruitment activities often have a festive atmosphere. DFAT considers it unlikely that people would be coerced into membership; there are many benefits to membership, such as political patronage, that mean volunteers are likely to join the party willingly.
Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence.
Bangladeshi Nationalist Party (BNP)
The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.
The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.[1]
[1] DFAT Country Information Report – Bangladesh, 30 November 2022, paras 3.65–3.84, pp. 20–23
The Tribunal notes the following recent relevant information contained in the report by the Country of Origin Information Services section of the Department of Home Affairs, Common Claims – Bangladesh effective from 5 May 2022 (underlining added and footnotes omitted):
Main opposition party members
The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties, using security forces to target its opponents. Social organisations that are close to the government are allowed to operate freely whereas those organisations which are associated with the opposition parties are prevented from implementing programs that are critical of the government. Police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances , torture and extra-judicial killings have become more common. It is estimated that 610 persons have disappeared since the AL came to office in 2009. While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found.
The US government imposed sanctions on the RAB. The August 2021, Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances. Aaccording to human rights organisations in the countrythe, Rapid Action Battalion (RAB) is responsible for more enforced disappearances in Bangladesh than any other unit. Human Rights Watch creates a webpage tracking and profiling the cases of 86 victims in Bangladesh who were forcibly disappeared and who remain missing. On 10 December 2021, the US Treasury Department imposed sanctions under the Global Magnitsky Human Rights Accountability Act on the RAB and several of its current and former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances. Since the sanctions, the RAB and National Security Intelligence (NSI) have been reportedly making threatening phone calls to victims and human rights defenders and their families, summoning them to their local offices, and visiting their workplaces and homes in the middle of the night.
Mass arrests of opposition members are also used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters – both BNP and JI – are not uncommon, and appear to be used as tools of intimidation against political opposition groups. Arrests often occur in the context of demonstrations. In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations. Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections. More than 4,500 BNP members were arrested on ‘trumped-up charges’. Mass arrests have also been used to suppress demonstrations by workers in the garment manufacturing industry. In its April to June 2021 report, Odhikar states that police arrested and detained 1230 opposition leaders and activists, including members of Hefazat-e-Islam, and another 53 leaders and activists of the Bangladesh Students, Youth and Labor Rights Council were also arrested and taken into remand through court, for holding rallies against Indian PM Modi’s arrival in Bangladesh.
The AL uses the courts and legal processes to suppress opponents. Fictitious charges are often laid against AL opponents. Trumped-up charges relating to corruption, publishing ‘false information’, pornography, instigating violence and vandalism are frequently used against political opponents. The Anti-Corruption Commission established in 2004 has targeted opposition parties, bureaucrats and officials and avoided investigating and persecuting ruling-party politicians accused of corruption. The ACC filed 262 cases in 2019, with submission of 267 charge sheets to various courts, but the conviction rate on cases stood at 63%, and these cases did not involve high-profile politicians or public officials. Between 2014 and until mid-2018, the Hasina government filed an estimated 78,000 cases against the entire rank and file of the BNP, which party leaders claim left some 1.8 million BNP workers and office-bearers charged, arrested or forced into exile. The Economist places the number of targeted BNP workers even higher, stating that lawsuits entangled some 2.5 million party workers in endless litigation. Opposition leader Khaleda Zia was convicted on corruption charges in February 2018 and imprisoned. Zia has been accused in a total of 37 cases, convicted in two (Zia Orphanage and Zia Charitable) cases, and is on bail in the remaining 35 cases. In March 2020, Khaleda Zia was granted a suspended jail sentence on the condition that she cannot travel abroad, as she still has more than two dozen other charges filed against her in recent years by the government. This was again extended in March 2022. Zia’s self-exiled son, Tarique Rahman, was given a life sentence in absentia in October 2018, for involvement in a 2004 assassination attempt on Sheikh Hasina. On 3 July 2020, the court sentenced nine men to death and 25 men to life imprisonment, who were all BNP members, for a 1994 attack on a train carrying Prime Minister Sheikh Hasina, who was at the time the leader of the opposition party.
Ordinary members of the BNP face a low risk of politically motivated violence but moderate levels of harassment from AL students. AL-BNP inter-party violence has declined since 2014, during which authorities reportedly responded to BNP street violence with torture, illegal detentions and extra-judicial killings of leaders and activists. During 2019, 4 incidents of AL-BNP clashes were reported that left 57 persons injured (compared to 26 clashes reported in 2017 that left 314 persons injured and one dead). The potential for inter-party violent incidents involving the BNP has declined after it was completely routed at the 2018 national elections. There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019, 2020 and 2021.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.
The Tribunal after the beginning of the hearing asked the applicant if there was any impediment to him giving evidence and answering the Tribunal’s questions. In this respect, the Tribunal was cognisant that the applicant in his application form had referred to mental health issues needing to be taken into account when he was interviewed. The applicant indicated in the hearing that there were no impediments.
In the hearing the applicant indicated that he could not return to Bangladesh because of general security issues there and the propensity for individuals to be harmed. The applicant indicated that he also cannot return because if he does not finish his studies in Australia he will be considered negatively by his family for not having done so. The applicant also indicated that there are disputes and tensions with his siblings in relation to bequests from the estate of his parents, who have now both passed away.
The applicant was asked on two occasions if these are the complete reasons that he cannot return to Bangladesh and on both occasions he indicated that they were.
The Tribunal asked the applicant if there were individuals in Bangladesh that had targeted him for harm that would create a risk for him on return. The applicant indicated that there was no fear from such individuals in Bangladesh.
The applicant indicated that he has worked in Australia in a variety of jobs cash in hand but is not working currently. The applicant indicates that he receives income from rent from a family property in Bangladesh.
The applicant indicated because of his concerns about the security situation in Bangladesh he would prefer after finishing his study in Australia to live and work in another country, but he would return to Bangladesh from time to time to visit his family.
The Tribunal assesses the applicant’s evidence in the hearing. The applicant was candid and honest in the hearing in relation to current claims of harm and circumstances. The Tribunal put to the applicant in the hearing that while it appreciated his honesty, it did not appear to the Tribunal that the applicant was articulating difficulties on return to Bangladesh that would constitute serious or significant harm for protection purposes.
The Tribunal indicated that generalised fear as a member of the Bangladeshi population based on security issues would not meet protection criteria because it would not constitute discriminatory conduct and it would be harm faced by the population generally and not the applicant specifically. The Tribunal indicated that family disputes or him being considered adversely by his family as a result of not finishing studies in Australia would not be a level or of a nature that would constitute serious or significant harm for protection purposes.
In response, the applicant indicated that he had no comment on these tentative conclusions of the Tribunal and that he had exercised his only visa option in terms of applying for the protection visa.
The Tribunal also notes in the hearing the applicant indicated that his future intentions are to finish study in Australia and work in another country and return to Bangladesh from time to time to visit his family. The intention is seriously undermining of claims that the applicant fears serious or significant harm on return to Bangladesh.
As indicated, the Tribunal considers that the applicant was honest and candid in the hearing. However, the Tribunal is not satisfied that the reasons articulated by the applicant in the hearing of not wanting to return to Bangladesh in terms of the risk of generalised violence and difficulties faced in relation to family issues meet protection criteria for the reasons put to the applicant in the hearing.
However, the Tribunal is not satisfied that the applicant was candid and honest in the written statement provided as part of his protection visa application.
In his original written statement for the protection visa the applicant made claims of suffering past injuries as a result of political involvement and being targeted for harm based on that political involvement, and detentions by police in Bangladesh on occasions potentially being politically motivated. The applicant also made reference to difficulties when returning to Bangladesh in 2012 based on past harm and targeting.
Given the applicant’s clear indication in the hearing that there are not past issues faced by him in Bangladesh which create an ongoing fear, the Tribunal is not satisfied that the applicant suffered targeting or physical injuries as a result of political involvement in Bangladesh that create any ongoing risk of serious or significant harm for him. On the applicant’s evidence in the interview it would appear that the detentions by police were principally as a result of drug use, with the applicant only speculating that they were motivated by political reasons. In any event, the applicant in the hearing did not indicate that he is of ongoing adverse interest by authorities and therefore the Tribunal does not consider there is a real chance of serious or significant harm to the applicant on this ground.
The Tribunal is not satisfied that the applicant had fear for his safety when he returned to Bangladesh in 2012 and had to take evasive action to avoid harm.
On the applicant’s own clear evidence in the hearing, he would not be politically involved on return to Bangladesh. On that basis, the Tribunal does not consider that the applicant faces a real chance of serious or significant harm based on future political involvement in Bangladesh. The Tribunal is not satisfied that the applicant has a desire to be politically involved but has determined not to be involved because of a fear of serious or significant harm as a result. It is clear from the applicant’s own evidence in the hearing that his reason for not being involved is because of his view of corruption of politics and the past wishes of his now deceased father.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, he is at a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
MemberAttachment – 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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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