1904650 (Refugee)

[2023] AATA 3194

1904650 (Refugee) [2023] AATA 3194 (26 June 2023)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  1904650

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:  L Symons

DATE OF DECISION:  26 June 2023

DATE CORRIGENDUM

SIGNED:  30 June 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Case number on cover page should be 1904650, not ‘1904650 & 2114545’, and the reference to Protection visa should be changed to Safe Haven Enterprise visa on the cover page and paragraphs 1, 30, 36, 44, 45, 46, 47, 48, 51, 61, 64, 70, 81 and 86.

Statement made on 30 June 2023 at 11:33am

L Symons Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  1904650 & 2114545

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:  L. Symons

DATE:  26 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 26 June 2023 at 11:21am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – religion – Sunni Muslim – ethnicity – Bengali – imputed political opinion – alleged involvement and participation in party activity with the National Democratic Party (BNP) – targeted by the Awami League (AL) – the applicant was found not a witness of truth and embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa – fears of persecution due to his actual or imputed political opinion was not well founded – applicant does not face a well-founded fear of persecution from the authorities on return to Bangladesh as a failed asylum seeker – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AA, 5(1), 5H, 5J, 5K-LA, 36,48A, 48B,65, 91K, 411,499

Migration Regulations 1994

CASES

DBB16 v MIBP (2018) 260 FCR 447

MICMSMA v CBW20 [2021] FCAFC 63

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs (the Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant claims to be a citizen of Bangladesh.

1. According to the records of the Department of Home Affairs (the Department) the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in]January 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s.5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s.5(1) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

1. The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 8 May 2013. At the time, this was thought to trigger a statutory bar in s.91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s.91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

1. The applicant applied for a Safe Haven Enterprise visa on 4 May 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to life the statutory bar in s.91K and the s.48A bar against the making of a further Protection visa application in Australia. The s.48A bar was purportedly lifted pursuant to a Ministerial Determination under s.48B dated 8 November 2019, which specified that the s.48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a Protection visa pursuant to

   s.65 of the Act, other than a decision relying on subsections 5H(2), 36(1B) or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s.91K of the Act.

1. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 1 October 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s.91K (see CBW20). This means that the s.48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s.48B determination.

1. The first application for a Safe Haven Enterprise visa filed on 4 May 2016 was refused by the delegate on 29 September 2017. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations. He applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 17 July 2018, the IAA affirmed the decision under review. On 10 August 2018, he applied for judicial review. On 6 December 2018, the Minister withdrew from the proceedings in view of the decision in DBB16 v MIBP (2018) 260 FCR 447. On 21 February 2019, the Department renotified the applicant of the decision made on 29 September 2017. An application for review of that decision was made to the Tribunal on 28 February 2019.

1. The second visa application was refused by a delegate on 13 October 2021 on the basis that the applicant was not a person in respect of whom Australia has protection obligations. An application for review of that decision was made to the Tribunal on 19 October 2021. However, the second visa application is, and always was, barred under s.48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

1. The applicant appeared before the Tribunal on 14 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted as a joint hearing of both applications for review and the applicant consented to this. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

1. The applicant was represented in relation to the review by his migration agent, Mr Abu Siddque, who did not attend the hearing.

1. On 19 May 2023, the Tribunal wrote to the applicant and invited him to a second hearing on 6 June 2023. The applicant appeared before the Tribunal, via video, on 6 June 2023. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

1. The applicant was represented in relation to the review by his migration agent, Mr Abu Siddque, who attended the hearing via video.

1. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criteria or under the complementary protection criteria.

THE RELEVANT LAW

1. To meet the criteria for a Safe Haven Enterprise visa, the applicant must engage Australia’s protection obligations as follows:

1. 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.

1. 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.

1. 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).

1. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a

person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

1. 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

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

1. The applicant’s claims in his first visa application are summarised as follows:

·He was born on [DOB deleted] at [Village 1], [address details deleted], Jhenaidah District in Bangladesh. He is a citizen of Bangladesh.

·He belongs to the Sunni Muslim religion and the Bengali ethnic group. He is unmarried. His parents, brother and three sisters live in [Village 2]in Bangladesh.

·He worked in a [store] from January 2003 to December 2010 and on a farm from December 2010 to November 2012 which were both owned by his family.

·In 2007, when he was helping his father on the family farm, members of the Awami League (AL) approached him and demanded that he join their political party immediately. His father supported the BNP for about 15 years and opposed him joining the AL. He followed his father and supported the BNP including financially. He thought they would support him against the AL.

·In July 2012, two members of the AL armed with guns went to his home to look for him. He was not home and they thought his father was hiding him. They threatened and tortured his father. They threatened to kill him when they found him and hit his father with a “hard pole” on the right side of his [upper body].

·In his culture, killing the eldest son of a family is a symbol of breaking the family and what they stand for. His mother called him to tell him what had happened. They were scared and shaken and he was fearful for his family and for himself.

·He considered relocating, however, persecution of BNP supporters extended to every city in Bangladesh.

·BNP members and the Police could not provide him with real protection because they faced their own threats to their lives from the AL. As no one was able to protect him in

Bangladesh, he and his family knew that he had to leave Bangladesh or be seriously harmed.

·He fears he will be seriously harmed or killed by members or supporters of the AL due to his political opinion and membership of a particular social group (eldest son in the family who is a BNP supporter). The nation has an extreme reputation for corruption under both the major political parties; AL and the Bangladesh Nationalist Party (BNP). Civilians in Bangladesh are among the largest victims of torture, murder and disappearance. There is widespread violence and political rioting and many civilians are arrested and killed by political groups.

·Due to previous threats against him, he is well known to members of the AL, Police and the army. He fears that if he returns to Bangladesh he will be arrested, tortured, killed or wrongfully detained by AL members and supporters, the Police and the army.

·He does not believe the authorities will protect him because they are corrupt and can be easily bought or influenced.

1. The applicant provided the Department with copies of his Bangladeshi Birth Certificate registered and issued [in] January 2013, his Bangladeshi Citizenship Certificate dated [in]January 2013, his ImmiCard, a character reference from[Mr A], [position] at [a] High School, dated 26 January 2013, a Medical Certificate for [Mr B] dated 22 August 201 (sic), a letter from the BNP dated 24 September 2011 in relation to his father and BNP minutes of a meeting held on 24 September 2011.

1. The applicant attended an interview with the Department on 3 July 2017 and was assisted by an interpreter in the Bengali and English languages. During that interview, he reiterated and expanded on his written claims. He made the following new claims:

·His father was [a senior official] for the BNP for [a number] of the surrounding villages in the Jhenaidah District.

·He became interested in the BNP when he was approximately 19 or 20 years of age, attended two or three meetings and regularly attended the processions organised by the BNP.

1. On 29 September 2017, the delegate refused the application for a Safe Haven Enterprise visa as she was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.

1. The applicant filed with the Tribunal copies of the Department’s Decision Record dated 29 September 2017 and his Immicard.

Receiving country

1. The applicant claims to be a citizen of Bangladesh and has provided copies of his Bangladeshi Birth Certificate registered and issued [in] January 2013 and his Bangladeshi Citizenship Certificate [in] January 2013. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Bangladesh. The Tribunal finds that Bangladesh is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.

Third country protection

1. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

Assessment of claims

1. The applicant gave evidence that his application for a Protection visa, including his Statement of Claims, was prepared by his lawyer based on his instructions which were true and correct. He was satisfied that his visa application, including his Statement of Claims, are accurate and complete.

1. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Bangladesh, why he left Bangladesh, his travel to Australia and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, implausible and unconvincing. There were several inconsistencies in his evidence. He made new claims throughout the process. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

1. First, in his application for a Protection visa, the applicant claimed that his father was a BNP supporter for about 15 years. He has filed with the Tribunal copy of the Department’s Decision Record dated 29 September 2017 which indicates that during his interview with the Department on 3 July 2017 he made a new claim that his father was [a senior official] for the BNP for [a number] of the surrounding villages in the Jhenaidah District.

1. During the hearing, the applicant stated that his father was a member of the BNP committee in the village. He did not know if he was an “enrolled member”. When asked what his father’s position was on the committee, he responded that he was not the local [senior official] and did not know what designation he held. When asked how long his father had been on the committee, he responded since his (the applicant’s) birth. When asked what his father did on this committee, he responded that, if there were fights or disputes among people, he used to sort them out. If people had hardship and needed help, he used to help as needed.

1. The Tribunal considers that if the applicant’s father was [a senior official] of the BNP committee at the village level or district level, he would have had to be a member of the BNP party. The applicant’s evidence to the Tribunal that his father was not the President of the committee contradicts his evidence during his interview with the Department that his father was [a senior official] for the BNP for [a number] of the surrounding villages in the Jhenaidah District. Further, his description of what his father did on the committee is not consistent with political activities undertaken on behalf of a political party. These issues raise concerns about the applicant’s credibility and the veracity of his claims.

1. The Tribunal raised this as an issue with the applicant. He responded that he may have missed something. It has been several years. If he remembered something, he stated what he remembered. The Tribunal accepts that it has been several years since the applicant lived in Bangladesh. However, his evidence to the Tribunal is that he speaks to his family regularly. The Tribunal would therefore expect that he would be aware of what his family members are doing. Further, his response that if he remembered something he stated what he remembered, tends to indicate that he remembered that his father was not of the committee when he gave that evidence to the Tribunal. His response does not [a senior official] alleviate the Tribunal’s concerns.

1. Second, the applicant provided the Department with two documents from the BNP to support his claims in relation to his father’s position in the BNP. The first document is a letter dated

24 September 2011 which states that his father is [a senior official] of the [ward deleted]. The second document is also dated 24 September 2011 and is the minutes of a BNP meeting held on 24 September 2011. This document states that his father’s position in the committee was[position 1]. The Tribunal noted that the two documents from the BNP are dated the same date and contradict each other in relation to his father’s position in the committee.

1. The Tribunal discussed country information with the applicant which indicates that the use of fraudulent documents is widespread in Bangladesh.1 The Tribunal raised as issues with him the authenticity of these documents and the credibility of his claims. He responded that the papers were true. He may have left out something or may have contradicted his verbal evidence but his documents are correct. When the Tribunal pointed out to him that his evidence to the Tribunal was that his father was not [senior official] of the BNP committee but one of the documents stated that he was, he responded “not on the village level”. This explanation is unsatisfactory and the Tribunal does not accept it.

1. Third, in his application for a Protection visa, the applicant claimed that in 2007, when he was helping his father on the family farm, members of the AL approached him and demanded that he join their political party immediately. His father was a BNP supporter and opposed him joining the AL. He followed his father and supported the BNP including financially. He has filed with the Tribunal copy of the Department’s Decision Record dated 29 September 2017 which indicates that during his interview with the Department on 3 July 2017 he stated that he became interested in the BNP when he was 19 or 20 years of age. When asked what activities he was involved in with the BNP, he responded that he attended two or three meetings and regularly attended processions organised by the BNP.

1. During the hearing, the applicant gave evidence that he was a BNP supporter in Bangladesh and was not an active member. He became a BNP supporter when he was 15 or 16 years old and accompanied his father to meetings and processions. He attended between two to four meetings and two processions. This was in his village in 2010. When asked whether these were the only ways in which he supported the BNP, he responded yes. When asked whether he ever voted for the BNP, he responded no. When asked why not, he responded that he was underage.

1. The applicant’s evidence is that he was born on [DOB deleted]. He would therefore have been [age deleted] years old when he left Bangladesh in November 2012. When the Tribunal pointed this out to him, he responded that he did not get to vote. When asked why not, he responded that they did not come to take photographs for the voters’ list so he was not listed as a voter. When asked why he supported the BNP, he responded that they liked the BNP and it was a family tradition. When asked whether his brother is a supporter or member of the BNP, he responded no. When asked whether he had join any BNP organisation in Australia, he responded no.

1. The Tribunal asked the applicant when he first had a problem with AL supporters. He responded but made no mention of the incident with AL supporters in 2007. When asked if he ever had a problem with AL supporters, he referred to the problem his father had but made no mention of the incident in 2007. When asked again if he had any problem with the AL when he lived in Bangladesh, he again referred to his father being attacked but made no mention of his interaction with AL supporters in 2007. When asked whether he had ever had a confrontation with Al supporters, he responded ”they did not get a chance to beat me up.”

1 DFAT Country Information Report on Bangladesh, 22 August 2019.

1. The applicant’s evidence to the Tribunal is that he attended BNP meetings and processions in his village. AL supporters would have been able to see him supporting the BNP. However, he did not claim that anything happened for five years after the incident in 2007 despite him not joining the AL immediately as demanded.

1. The Tribunal raised as an issue with the applicant the fact that he made no mention of the incident with AL supporters in 2007 despite the Tribunal asking him several questions. The Tribunal also raised as an issue the fact that nothing happened for five years despite the AL supporters demanding that he join the AL immediately and he did not do so. The Tribunal noted that he was not a leader in the BNP or even a member of the BNP. He was not someone with a profile to be a threat to the AL. He did not even vote. The Tribunal questioned why the AL would have any interest in him.

1. The applicant responded that he had missed something about the 2007 incident. They put pressure on BNP supporters and members so they could not register and vote for their party. He has [a medical condition]and is on medication. He forgets things and cannot present facts in a correct manner. That is a disability he has. The Tribunal noted that it had no medical evidence before it that he had a medical condition which impacted on his ability to give evidence. He responded that he is receiving treatment from a doctor and if he is given some extra time, he can provide that evidence to the Tribunal. The Tribunal gave him two weeks after the hearing to provide medical evidence from his treating doctor. He did not provide that evidence to the Tribunal or seek extra time to do so.

1. There are a number of inconsistencies in the applicant’s evidence. His evidence to the Department was that he became interested in the BNP when he was 19 or 20 years of age. His evidence to the Tribunal was that he became a BNP supporter when he was 15 or 16 years old. In his visa application, he claimed that he supported the BNP financially. The Tribunal asked him how he supported the BNP and he did not mention financial support. He initially stated that the reason why he had not voted in an election in Bangladesh was because they (presumably the Bangladesh Electoral Commission) did not come (to the village) to take photographs and register voters so he was not on the electoral list. He subsequently claimed that AL supporters put pressure on BNP supporters and members so they could not register and vote for their party.

1. Fourth, in his application for a Protection visa, the applicant claimed that he was a target because he was the eldest son in the family who is a BNP supporter. The Tribunal would expect that if the applicant was targeted for this reason and AL supporters demanded in 2007 that he join the AL immediately and he did not do so, they would have done something about it at the time. He continued to live at his family home and work in his family farm. However, according to his visa application there were no further incidents until 2012, some five years later. This is not consistent with his claim that he was a target and raises issues in relation to his credibility and the veracity of this claim.

1. Fifth, in his application for a Protection visa, the applicant claimed that he worked in a [store] from January 2003 to December 2010 and on a farm from December 2010 to November 2012. The [store] and the farm were owned by his family.

1. During the hearing, the applicant give evidence that in 2003 AL supporters attacked them, ransacked their [shop] and destroyed it. This claim was not mentioned in his application for a Protection visa. The Tribunal would expect him to have mentioned this in his visa application particularly if he was working in the [store] at that time and it was his main source of income. Further, if the [store] was destroyed in 2003 as claimed, he could not have worked there until December 2010 as stated in his visa application.

1. The Tribunal raised as an issue with the applicant the fact that he had not mentioned this claim in his application for a Protection visa. He responded that he may have missed something. It has been many years. If he remembers something, he says what he remembers. The Tribunal does not find this explanation to be satisfactory. His application for a Protection visa was filed much closer in time to this incident and the Tribunal would expect him to have remembered this significant incident at that time. His failure to mention this incident in his visa applicant raises further issues in relation to his credibility and the veracity of this claim.

1. Sixth, in his application for a Protection visa, the applicant claimed that in July 2012 two members of the AL armed with guns went to his home to look for him. He was not home and they thought his father was hiding him. They threatened and tortured his father. They threatened to kill him when they found him. They hit his father with a “hard pole” on the right side of his [upper body].

1. During the hearing, the applicant gave evidence that in 2010 AL supporters went to his home and attacked his father. His father was beaten so badly that one of his wounds never healed. He has to wear a belt and braces all the time. He was at his cousin’s home at the time. If they had got their hands on him, he would also have been attacked. When asked about his father’s injuries, he responded that he had a pelvic injury. One of his bones was broken and never healed. One of his legs was broken. When asked whether his father received medical treatment for his injuries, he responded yes at Jessore city. He went to the hospital clinic. Doctors treated his injuries and prescribed medication. He still wears a belt and braces.

1. The Tribunal asked the applicant whether his father reported this assault to the Police. He responded yes. When asked what the Police did about it, he responded nothing. When asked whether his father had any other problems with the AL, he responded that there was “quarrelling in political parties”.

1. There are a number of inconsistencies in the applicant’s evidence. In his application for a Protection visa, he claimed that this incident happened in July 2012. During the hearing, he stated that this happened in 2010. When the Tribunal raised this as an issue with him, he responded that he did not remember that. The Tribunal noted that if the incident happened in 2010 and not 2012, he made it very easy for the AL supporters to find him because he continued to live in his family home and work in his family owned farm thereafter. He responded that they do not come every day. If there is some disturbance, the parties confront each other. Then they become active and attack people.

1. The Tribunal does not find this explanation to be satisfactory. If the AL supporters had threatened to kill the applicant when they found him and had injured his father so badly as claimed, the Tribunal would expect him to have been fearful that they would carry out their threat and taken steps to leave home and relocate somewhere where he would be safe. Instead, he continued to live in his family home and work on his family farm for two years and four months until he left Bangladesh to travel to Australia in November 2012. His conduct was not consistent with his claims.

1. In his visa application, the applicant claimed that the AL supporters hit his father on the right side of his [upper body] with a “hard pole”. During the hearing, he stated that his father suffered a pelvic injury and one of the bones was broken. He also suffered a broken leg. He provided the Department with a report from [Dr A]which is dated 22 August 201 (sic). This report is in relation to [Mr C].It stated “fractured hipbone due to trauma (illegible). Bed rest and lumbar correct (Belt)”. Five different types of medication were prescribed.

1. There are a number of problems with this report. Firstly, it is dated 22 August and the year is incomplete. The applicant’s evidence is that the assault took place in July. The Tribunal would expect his father to have received medical treatment immediately after he suffered the injury. Secondly, it stated that the injury was a fractured hipbone. The applicant’s evidence to the Tribunal was that his father had a pelvic injury and a broken leg. In his visa application, he stated that his father was hit on the right side of his [upper body]. The letter dated 24 September 2011 that he provided from the BNP states that [the applicant’s father] was beaten up and seriously injured. “[Mr D]’s bones were injured and his right leg was injured. He is now living a paralysed life. He can’t walk alone.” Thirdly, the patient’s name in the report is different to the two names in the BNP letter.

1. The Tribunal raised these issues with the applicant and its concerns in relation to the authenticity of these two documents particularly in view of the country information that the use of fraudulent documents is widespread in Bangladesh.2 The Tribunal also raised an issue in relation to the credibility of these claims.

1. The applicant responded that he does not know who this ‘[Mr D]’ person is. He has never heard of him. He never said that his father was hit in his head. When the Tribunal pointed out that that was his claim in his visa application, he responded that he did not remember why these things happened and did not know.

1. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

1. Seventh, during the course of the hearing, the applicant made new claims in relation to his other family members. The Tribunal asked him whether any other members of his family had problems with the AL. He responded that his mother, three sisters and brother are “threatened all the time, they cannot live their lives like that and are under constant threat”. When asked what kind of threats they are subjected to, he responded that they threatened to kill them, they will not be able to live unless they go with them and they will not be able to till their land. When asked when these threats started, he responded that they started in 2003. When asked whether these threats had been reported to the Police, he responded that even if they were reported, the Police would not do anything. When asked whether this meant that the threats had not been reported, he responded that they went there but were not allowed inside the Police Station so could not report the threats.

1. The Tribunal raised as an issue with the applicant the fact that, despite having plenty of opportunities to do so, he had never previously mentioned that his mother, three sisters and brother were threatened by AL supporters. He responded that his sisters were very young at the time. They are now grown up and “threats are coming”. the Tribunal does not accept this explanation. If the threats began in 2003, it is irrelevant how young his sisters were at the time.

1. The Tribunal has had regard to the character reference from [a teacher of a high school], [Mr A], that the applicant filed with the Department. This letter confirms that he was a “boy of good character” when a student at that school. Despite this character reference, the Tribunal has concerns in relation to his credibility as a witness for the reasons herein.

1. Eighth, in his application for a Protection visa, the applicant claimed that due to previous threats against him he is well known to members of the AL, Police and the army. He fears that if he returns to Bangladesh he will be arrested, tortured, killed or wrongfully detained by AL members and supporters, the Police and the army. Other than for one incident in 2007

2 Ibid.

when he claimed, in his visa application, that AL supporters demanded that he join the AL immediately, he has made no claims of having had any further incidents with AL supporters or members or any contact with the Police or the army.

1. During the hearing, the Tribunal asked the applicant a number of questions and gave him many opportunities to give evidence of why he fears harm if he returns to Bangladesh. He did not mention having any specific incident with AL supporters or members or any contact with the Police or the army. He made a new claim that he and his family have been threatened by AL supporters since 2003 because they are BNP supporters. He also claimed that his family’s grocery store was ransacked and destroyed in 2003 by AL supporters. The country information indicates that the BNP was in power in 2003 and the AL was in opposition at that time.3 In these circumstances, it is implausible that AL supporters would have ransacked and destroyed a [store] belonging to a BNP supporter or threatened a family of BNP supporters including a woman and three young girls.

1. The applicant gave evidence that his greatest fear in returning to Bangladesh is that he will be killed. They have a good network and will find him. If he is killed, his family will be destroyed psychologically and socially. It will have repercussions for his brother and other siblings. He is sending money from Australia that is used for his brother’s education. During festive times, he sends money from Australia. If that financial support is withdrawn and he returns to Bangladesh, they will get him any time. If he is finished off, his brother will be the next one.

Illegal departure from Bangladesh and failed asylum seeker

1. The applicant’s evidence in his application for a Protection visa is that he departed Bangladesh by boat and travelled to[Country 1], [Country 2], [Country 3]and Australia by boat. He did not use a travel document throughout his journey. He has not made any claims for protection based on his unlawful departure from Bangladesh or if he returns to Bangladesh as a failed asylum seeker. As this arises on the facts, the Tribunal will consider these issues.

1. The country information from DFAT, referred to below, indicates that “Bangladeshis require a valid passport and visas (depending on the destination country) to depart Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed asylum applications, for example) and even those provisions are rarely enforced. It is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted under the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this happening.”

1. The applicant did not have a passport or visa when he departed Bangladesh. This tends to indicate that he beached the provisions of OEMA. However, DFAT indicates that these provisions are rarely enforced and they are not aware of any cases of failed asylum seekers returning to Bangladesh being prosecuted under the legislation.

1. “DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.”

3 Canada: Immigration and Refugee Board of Canada, Bangladesh: Bangladesh Nationalist Party (BNP), including its structure, leaders, membership and membership documents, factions, associated organizations and activities; treatment of members and supporters by authorities (September 2012-2015), 31 August 2015, BGD105262.E, available at: [accessed 25 June 2023]

1. The applicant is not a high profile individual nor has he participated in any political activities in Australia. In these circumstances, he is unlikely to attract adverse attention from the Bangladeshi authorities. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention. In view of the above, the Tribunal is not satisfied that he is at risk of serious harm or significant harm because he left Bangladesh unlawfully or if he returns to Bangladesh as a failed asylum seeker now or in the reasonably foreseeable future.

COUNTRY INFORMATION

1. The DFAT Country Information Report on Bangladesh states as follows:

Awami League and Bangladesh Nationalist Party

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.

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 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.

Illegal departure from Bangladesh and failed asylum seekers

The Overseas Employment and Migrants Act (OEMA) 2013 makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act.

Bangladeshis require a valid passport and visas (depending on the destination country) to depart Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed asylum applications, for example) and even those provisions are rarely enforced. It is unlikely that any person returning after a failed asylum attempt in Australia would be

prosecuted under the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this happening.

It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.

Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.

DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.

Other considerations

The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh, other opensource country information and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

Findings

1. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa.

1. The Tribunal accepts that the applicant was born on [DOB deleted]at[Village 1], [address details deleted], Jhenaidah in Bangladesh. The Tribunal accepts that his parents, brother and three sisters live in Bangladesh. The Tribunal accepts that, after completing school, he worked in a family owned [store] from January 2003 to December 2010 and worked on the family owned farm from December 2010 to November 2012. The Tribunal accepts that he lived with his parents and siblings at the above address from birth until he left Bangladesh in November 2012 to travel to Australia. The Tribunal accepts that since obtaining employment in Australia he has been financially supporting his family in Bangladesh.

1. The Tribunal does not accept that the applicant’s father was a member of the BNP and held any position in the BNP such as a committee member in the village or district or, alternatively, [a senior official] of the [a]ward or, alternatively, the [Position 1]of the committee. The Tribunal accepts that he may have been a BNP supporter.

1. The Tribunal accepts that the applicant may have accompanied his father to a couple of BNP meetings and processions. The Tribunal does not accept that he financially supported the BNP. The Tribunal is not satisfied that he had or currently has any interest in politics in

Bangladesh. The Tribunal is not satisfied that he has any desire to engage in any political activities if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal is not satisfied that he is at risk of serious harm or significant harm because his father is a BNP supporter and/or because he supported the BNP by accompanying his father to a few BNP meetings and processions prior to November 2012.

1. The Tribunal does not accept that the applicant’s father’s [store] was ransacked and destroyed by AL supporters in 2003. The Tribunal accepts that in 2007 AL supporters may have approached him and tried to recruit him into the AL. The Tribunal does not accept that they demanded that he join the AL immediately. The Tribunal accepts that he did not join the AL.

1. The Tribunal does not accept that in 2010 or, alternatively, in July 2012 two members of the AL armed with guns went to the applicant’s home looking for him and when they realised he was not at home they threatened, tortured and beat his father causing him serious injuries. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was or is a target for AL supporters and members because he is the eldest son in his family and is a BNP supporter. The Tribunal does not accept that he considered relocating within Bangladesh because he feared persecution as he was a BNP supporter and the eldest son in his family.

1. The Tribunal does not accept that the applicant is well known to AL supporters and members and the Police and army and is at risk of harm from them. The Tribunal does not accept that his family members, including his mother and three sisters, have been threaten “all the time” since 2003 and have lived under constant threat since then. It follows that the Tribunal does not accept that they attempted to report the threats to the Police and were prevented from going into the Police Station.

1. The Tribunal is not satisfied that the letter from the BNP dated 24 September 2011 and the BNP minutes dated 24 September 2011 are authentic documents. The Tribunal is not satisfied that the report from [Dr A] dated 22 August 201 (sic) is an authentic document.

1. The Tribunal accepts that the applicant departed Bangladesh unlawfully. In view of the country information above, the Tribunal is not satisfied that he is at risk of serious harm or significant harm because he departed Bangladesh unlawfully or if he returns to Bangladesh as a failed asylum seeker now or in the reasonably foreseeable future.

1. In view of the above, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for any of the reasons claimed, if he returns to Bangladesh now or in the reasonably foreseeable future.

Does Australia have protection obligations to the applicant under the refugee criterion?

1. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion, membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Bangladesh. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

1. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

1. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

1. Accordingly, 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, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

CONCLUSION

1. 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) or s.36(2)(aa) of the Act.

1. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H  Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

serious harm for the purposes of that paragraph:

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

(b)   significant physical harassment of the person;

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

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

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

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

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

5K  Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L  Membership of a particular social group other than family

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

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

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

(c)    any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)    the person can access the protection; and

(b)   the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

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

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

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

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

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

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

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

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

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

…