1904653 (Refugee)

1904653 (Refugee) [2022] AATA 5052 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Abu Siddque (MARN: 0901413)
CASE NUMBER: 1904653 & 2111739

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Meena Sripathy
DATE:12 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 12 December 2022 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – political violence – detention – kidnapping – physical assault – false murder and terrorism charges – failed asylum seeker – mental health issues – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48A, 65, 91K, 411, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of two decisions made by delegates of the Minister for Immigration and Border Protection on 16 August 2017 (the first protection visa application) and 13 August 2021 (the second protection visa application) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant, who claims to be a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 21 May 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, where the Court held that the Temporary Safe Haven visa grants in the Ashmore affected cases were invalid, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 12 April 2016. That application was not subject to the s 91K bar and was a valid application. The Minister then purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise visa on 25 September 2020 which was also valid.
The first application for a Safe Haven Enterprise visa made on 12 April 2016 was refused by the delegate on 16 August 2017. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 28 February 2019 following a new notification of the decision on 21 February 2019.
The second application for a Safe Haven Enterprise visa made on 25 September 2020 was refused by the delegate on 13 August 2021. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 3 September 2021.
The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The applicant was advised that the hearings for both cases would be combined in the hearing invitation, and this was explained at hearing. He did not indicate any issues with this approach. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review however the representative did not attend the hearing.
The issues in these cases are whether there is a real chance, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, that he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on Bangladesh was issued on 30 November 2022. The Tribunal also had regard to previous DFAT reports among other information.
CONSIDERATION OF Claims and evidence
Background
The applicant was born in [a named] Village, Chittagong Bangladesh in [year] and is now [age] years of age. He claims to be a Bangladesh citizen and provided a birth certificate and nationality certificate in support of his identity and nationality. He claims to be of Bengali ethnicity and Sunni Muslim. He has parents, [and specified family members]. He provided consistent information in his application and oral interviews that his parents, [and specified family members] live in Bangladesh. At the time the first application was made he had one brother in [Country 1] and one in [Country 2]. The brother in [Country 1] has since returned to Bangladesh. He indicates he is in regular contact with his family in Bangladesh. The applicant departed Bangladesh [in] December 2012 and arrived in Australia by boat [in] January 2013. He was granted a Temporary Safe Haven Subclass 449 visa and a Bridging visa E on 21 May 2013. In Australia he has lived at various addresses in Queensland and NSW and has been employed as a labourer and factory worker at a [business] in Australia. In Bangladesh he worked in agriculture. He is educated to [grade] level.
Protection Claims
First Protection visa application (April 2016)
The applicant’s initial claims were set out in his application and an attached signed (undated) Statement. In responses to questions 89-93 he referred to claims of involvement with Bangladesh National Party (BNP) politics and being a victim of political harassment, including death threats and several attempts on his life.
In his written Statement he provided the following further information:
·His father was a farmer and also a member of the BNP. Important political leaders would meet at their house when he was young.
·He became involved in preparations for the 2008 elections including participation in meetings and rallies with his father and grandfather.
·Awami League (AL) workers warned his father against working for BNP and threatened to put a false case against him and his father. Near the end of 2008 the AL filed a case against his father for murder and terrorism and his father subsequently went to jail for 3 months 12 days where he was tortured for this false case.
·The AL attacked his house and threatened his family not to participate in meetings or rallies. Following this the BNP lost the election and AL won.
·In February 2012 the applicant was kidnapped by AL and held for one week. He was released after his father paid a ransom.
·On 15 June 2012 he was attacked by group of AL cadres and beaten. Following this incident, he spent 7 days in a private clinic.
·His parents went to police to file a case but instead a false case was filed against him.
·After this he was unable to get a passport because of the false case and his father arranged for a passport for him to depart country. He departed Bangladesh [in] December 2012 on a false passport, travelled to [Country 1], where he remained for [number] days before travelling to [Country 3] by boat, then by plane to [a location] and boat to Australia.
On 21 July 2017 the applicant attended a protection visa interview with an officer of the Department. An audio recording of this interview is included in the Department file provided to the Tribunal and the Tribunal has listened to this. At this interview the applicant provided the following further information:
·His brother drove cars for a living and his car was destroyed by AL cadres when they disobeyed a prohibition on driving during a strike.
·In around January or February 2012, he was with his brother and friends at the [Town 1] marketplace, and they recognised the people who destroyed his car. A fight broke out and a person from the AL was killed. When the AL party came to know about it, they came after the applicant and his brother. His brother went to [Country 4] and his father told him it was not safe for him, and they decided he would go to Australia.
·People from the AL came to his parents’ house looking for them and beat them.
On 26 July 2017 the Department wrote to the applicant to invite comment on adverse information that would form the reason or part of the reason for refusing the visa. He was advised of particulars of information he provided to a Case Manager at [the] Immigration Detention Centre on 29 April 2013 as follows:
“He was driving with his brother, and they got caught up in a protest where BNP beat him and
brother (they do not belong to any party) and they spent 3-4 days in hospital. Client and his
brother later with some friends returned and beat up 4 to 5 attackers in a revenge attack and
2 of them died. The BNP group then later went to his house looking for him and his brother,
as they were not there they beat up and tortured their sister. Father sent my brother to [Country 2] and client went to [Country 1]. The BNP group still attend his house and look for him and his brother and threaten his father that if they find him, they will kill him."
and was informed that this information is inconsistent with information he provided in his protection visa application, including information he provided at his protection visa interview on 21 July 2017, where he stated:
“in late 2011/2012 there was a strike imposed by the Awami League in your village [named].
All the shops were closed, and no cars were permitted to be driven on the road. You and
your brother disobeyed the instruction, resulting in your brother’s car being damaged by the
Awami League.
In January/February 2012, yourself, your brother and friends were at the [Town 1] market
place when you recognised the Awami League supporters who damaged your brothers
car. A fight broke out. An Awami League supporter was killed during the fight. You state
the Awami League supporters came to know that you and your brother were involved in the
altercation.”
and may lead the delegate to make an adverse credibility finding on these claims.
On 30 July 2017, the applicant’s (then) representative submitted a statement from the applicant in response. The statement, signed by the applicant, explained that his first and second interviews with the Department were made close to his rough journey by sea to Australia and he was not in a good physical and mental condition, and it would be unfair to rely on what he said then. He confirmed that the information he provided to the DIBP on 21 July 2017 is correct.
The delegate considered all of the evidence and the applicant’s response to the invitation to comment but did not accept the applicant’s claims that he had an altercation with either supporters of BNP or AL or that anyone was killed. The delegate also did not accept the applicant’s claims that his father was falsely convicted for murder and terrorism, that he was incarcerated for three months or that his parents were beaten when he tried to lodge a complaint with the police about the altercation with supporters of the AL. The delegate accepted the applicant was a low-level BNP supporter and his car was damaged during a hartal in 2011/2012 but found he was not personally targeted by the AL for his involvement with the BNP. The delegate refused the application on 16 August 2017 on the basis of not being satisfied the applicant faced a real chance of persecution for any reason and was not a refugee as defined by s5H(1) and was also not satisfied that he faced a real risk of substantial harm as outlined in s36(2)(aa).
On 6 November 2017 the refusal was affirmed in a decision of the Immigration Assessment Authority. A copy of the IAA decision is included in the documents provided to the Tribunal. The Tribunal notes reference to a submission dated 14 September 2017 by the applicant’s representative made in the IAA decision. The decision record indicates the submission referred to the applicant’s response to the natural justice letter and argued that it incorrectly stated that the information he provided at his interview of 21 July 2017 was correct and should have stated “was incorrect”. The applicant now confirms that the information given at his interview of 29 April 2013 is correct. A copy of the submission dated 14 September 2017 was not included in the documents provided to the Tribunal and the Tribunal has not seen it.
Second protection visa application (September 2020)
The applicant submitted a document Particulars of Protection with his application for a protection visa lodged on 25 September 2020, which included the following claims:
·He came to know about the BNP through his father who was a politician and active member of the BNP. All of his family believe in the BNP ideologies and for that reason have been targeted by the Bangladesh Awami League - the current ruling party for the last 12 years
·He along with his family suffered attacks by the Awami League and has been subject to vexatious cases.
·He relies on his statement provided with this letter as annexure for details of his claim. No document was attached.
On 9 July 2021 the applicant attended a protection visa interview with an officer of the Department. An audio recording of this interview is included in the Department file provided to the Tribunal and the Tribunal has listened to this. The applicant provided the following additional information at the Department interview:
·He corrected information previously given that he left Bangladesh [in] December 2012. He said in fact he left [Country 1] [in] December for his journey to Australia, which took one and a half months before he arrived in Australia [in] January. He had been in [Country 1] for some three months before that.
·When asked if anyone in his family is involved in politics in Bangladesh, he responded no.
·When asked if he was a member of a political party in Bangladesh, he said no.
·In response to why he is seeking protection in Australia he said his brother who is in [Country 2] used to do Jaamat e Isaami/BNP and he went around with him and for this reason they came after him. When asked to clarify why he earlier said no one was involved in politics from his family he said only this one person, his second brother, is. He repeated that he is not involved in any politics.
·When asked who he fears harm from he said people from Awami League who are in government now.
·When asked why he said there was a fight which broke out in [Town 1] bazaar and three people were killed. He was there and they know him.
·The applicant said his brother left for [Country 2] before he went to [Country 1], in the beginning of 2012. The incident in the market happened in 2012.
·When invited to comment on various inconsistencies in information he has given to the Department the applicant said he has problems with his memory and cannot remember anything.
·The applicant said he does not do politics and is not a political person.

Following the interview, the applicant submitted a letter dated 15 July 2021 from [Doctor A] referring to the applicant’s mental health and memory issues.
On 13 August 2021 the delegate refused the application. Having regard to various inconsistencies in the information given to the Department, the delegate did not accept the applicant, or any of his family members were or are members or supporters of BNP, or were harassed or targeted by the AL. The delegate did not accept the applicant had any profile of interest to the authorities or AL in Bangladesh. The delegate was not satisfied the applicant faced a well-founded fear of persecution for any reason, including his political opinion or as a failed asylum seeker and therefore does not meet the refugee criteria. The delegate was also not satisfied that he faced a real risk of significant harm as outlined in s36(2)(aa) for the purposes of the complementary protection criteria.
Evidence at hearing before the Tribunal on 3 November 2022
The applicant appeared at the hearing without his representative and consented to proceed with the hearing in his absence. At the commencement of the hearing the Tribunal explained to the applicant the reasons it had combined the hearings in his two matters and confirmed the documents it had before it. With regard to the submission dated 14 September 2017 submitted to the IAA (referred to above) the applicant confirmed that he was represented by his previous agent in that process and said he does not know about, or have a copy of, that submission.
The Tribunal asked the applicant about his written applications and the manner in which they were completed. He said he told his previous representative his story and he wrote the statement based on that. He did not read it back to him. He does not know therefore if it is accurate and cannot now recall the details. Regarding the statement lodged with his second SHEV application he said the current representative drafted it on the basis of what he told him. He also gave this representative a folder of information provided by his previous representative which should have included the earlier statement. The current representative read the statement back to him. The applicant told the Tribunal he had nothing further to add, change or say about the earlier statements.
The Tribunal asked him about his current circumstances. He lives in [Suburb 1] in shared accommodation with friends. He works as an [occupation 1]. He has worked on and off since coming to Australia, and previously received some government assistance. He sent money home to Bangladesh once, about one or two months ago. He sent around AUD $5000 because his mother was ill and went to hospital. He was previously in regular contact with his father since his arrival (every one or two months) but has only contacted them a couple of times since sending the money. He said this is because they keep asking him for more money.
He has no family in Australia. In Bangladesh he has his parents, [and specified family members], and one brother is in [Country 2]. [Specified siblings] are married and live with their in-laws. [One] brother ([named]) returned to Bangladesh from [Country 1] about 4 or 5 years ago. He too is married and lives in the same area as the parents but separately with his wife. According to the applicant’s father, he runs his own business. The applicant has no other information about it as he is not in contact with his brother. [Other named siblings] live with the parents, one helps with the [business] of [their] father, and [another] is still studying and also helps with the [business]. The brother in [Country 2] ([Brother A]) left Bangladesh just before the applicant and has not returned since then. He does not and has never lived in [Country 4]. The parents and brothers live at the same address as the applicant before he came to Australia.
The applicant confirmed that before he came to Australia he worked on his father’s agricultural lands. He also sometimes helped his brother, [Brother A], with his [business]. The applicant stated that he was educated to [grade] only. The reason he ceased study was due to financial limitations.
The applicant left Bangladesh for [Country 1] in 2012. He was in [Country 1] for 1-2 months and travelled from there to [Country 3] and then to Australia by boat. He used a passport to fly to [Country 1] from Bangladesh but believes it was not a genuine one. It was taken from him at the airport in [Country 1] by the agent. He did not have any problems departing Bangladesh.
The Tribunal asked the applicant why he left Bangladesh in 2012. He said his brother, [Brother A], was involved in politics in Bangladesh. He was associated with the BNP. A fight broke out and his brother was beaten. The applicant was not present at this incident. Then after some time, his brother was at the [Town 2] Bazaar and saw one of the people who beat him up. He called the applicant and some other friends, and they attended and there was a fight. There were 12 of them from the BNP side, against 2 people who were associated with the AL. One of these people subsequently died after he was taken to hospital. Since then, the AL people were looking for the applicant and his brother and vowed to kill them in revenge for the death of this person. His brother went into hiding and some 4-5 months later he went to [Country 2]. The applicant remained at home initially, and sometimes hid at his relatives’ homes. A few times he was located on the street and beaten up by the AL people. The applicant said he knows they are AL people because in the area everyone knows who is BNP and who is AL. They attacked his house and on two occasions beat his father and his sister. The Tribunal asked if they went to the police about this. He said they did not because AL is in power, and everyone told them not to bother.
The Tribunal asked if his father was aware of the incident in which the AL person was killed. The applicant said he was. The Tribunal asked if any complaint was made to police about this incident and the subsequent death of a person. He said he does not believe any complaint was ever made because the police have never approached them about it. The AL people just told them they will kill them in revenge. The Tribunal asked the applicant what was the earlier event which triggered this incident. He said he does not know the details because he was not there. His brother told him he was beaten, and he knew the people who did it. So, when he saw them at the market he called the applicant.
The Tribunal asked the applicant about his brother’s involvement in the BNP. He said he was a member from a long time. He participated in meetings and processions. The Tribunal asked if, before this incident, his brother or he had any other problems. He said they did not. The Tribunal asked if the applicant was involved in any politics. He said he was not but sometimes he went along with his brother so people would assume he too was involved. He went to one or two processions during 2012.
The Tribunal asked if there were any other incidents apart from this incident of the fight where a person died. He said no. He confirmed that apart from his brother [Brother A] no one else in his family is involved with the BNP.
The applicant confirmed that this was the only reason he left Bangladesh in 2012 and there was no other reason. The Tribunal asked if, in the contact with his father since coming to Australia, he has heard if they have had any problems. The applicant said they came to the house twice asking about him and his brother. When asked when this occurred, the applicant initially said he cannot remember. When pressed further on this he said the first time was a few months after he arrived, and the second time was about one year after he arrived. He said after that his father told him from time to time, they come around and ask.
The Tribunal noted it has now been over 9 years since he left Bangladesh and asked why anyone would be interested in him over this incident still. He said a party member was killed and they want revenge. They never filed a case about it, they have said they wanted to kill them in revenge. When asked how then his other brother was able to return from [Country 1] and live there safely. He said that brother had no involvement. The Tribunal asked the applicant what he knows about the people who will come for him. He said he does not know their names, or anything else. He just knows they are from the next village, and they belong to AL. The Tribunal asked again if, apart from this reason, there is any other reason he fears return. He said there is not.
The Tribunal put to the applicant that the information he has given now about the reason he left Bangladesh and reason he fears return is substantially different to written and oral claims he has made previously to the Department in the two protection visa applications he has made. It went through the written claims made in his statement lodged with his first protection application in April 2016: that his father was involved in the BNP, and consequently he participated in meetings and rallies for the 2008 election; that the AL threatened his father with a false case and his father was charged with murder and terrorism and jailed for 3 months; that the AL attacked his house and family; that he was kidnapped for one week in February 2012; that he was seriously physically attacked in June 2012 by AL cadres requiring 7 days treatment in a private clinic. He made additional claims at the Department interview that his brother’s car was damaged and following this a fight broke out which he and his brother were involved in, and a person was killed and the AL has been after him since then. In his second protection visa application lodged in September 2020 he provided a written statement that his father was a politician and BNP member and he and his family were subjected to attacks by AL and vexatious cases. He stated that he also continued to rely on the statement made in his earlier application. In his Department interview relating to that application however he contradicted his written claims and said that, apart from one brother, no one else in his family is involved in any political party or activities. He said that he feared return because his brother was involved with BNP/Jamaat e Islaami and he went around with his brother sometimes. He referred to a fight that broke out in [Town 1] bazaar in which three people were killed and that the AL are after him because of this as he was there.
The Tribunal put to him that he also gave different evidence to the Department before he made these applications. He gave inconsistent information in his arrival interview and a few months later to a case officer while he was in detention. He said in his arrival interview he left Bangladesh because of financial reasons, their car was broken into, and his father and brother had no work so he had to leave the country. He told the case officer a few months later, he and his brother got caught up in a protest and were beaten by BNP and spent 3-4 days in hospital; and they later went back with some friends and beat up 4-5 people in a revenge attack and 2 of them died; and the BNP came looking for them at their house and beat and tortured his sister. The Tribunal put to the applicant that all of these different accounts of his claims may lead the Tribunal to find his evidence unreliable and unbelievable. It may not accept that either he or his father were involved in BNP politics and fear harm on this basis from AL and invited his comment. The applicant said the problem is he does not remember what he said in the earlier applications and statements. He believes he mentioned a car being damaged before which he has not mentioned today and that was a mistake. He said there was a car damaged during a procession and he forgot to mention that. Regarding his father being involved with BNP, he said he believes that may be true, but he does not know much about it because he never discussed it with him and he cannot remember. Regarding his own BNP involvement, he said he went to some processions with his brother and father, maybe one or two, but he cannot remember when the last time was. The applicant repeated that he fears the AL people will kill him because of his involvement in the incident that led to the death of that AL person.
The Tribunal asked the applicant if this is the case, can he go and live in another part of Bangladesh, such as Dhaka, and be safe from the AL people he fears. In response to this he said he cannot live in Dhaka because he does not know anyone there and he has no where to live and could not work. The Tribunal asked if he will be safe from the AL people there. The applicant initially said yes. Then he said no he would not be safe because the AL are very powerful, and they will find him with the help of party people.
The Tribunal put to the applicant, given his evidence that he was involved in the incident that led to the death of a person, whether it was prosecution relating to this matter that he feared. If so, the Tribunal may find this is not ‘serious harm’ for the purposes of refugee law because the criminal law applies to everyone and invited his comment on this. The applicant responded that to his knowledge no complaint was ever made to the police, so he does not fear the police are looking for him in relation to this matter. He does not believe that the police have ever come looking for him or his brother to date.
Regarding the claim made previously about his father being jailed, the Tribunal noted he never mentioned this earlier in the hearing. He said he only talked once to his father about this. He has nothing further to say.
The Tribunal discussed with the applicant that it must first make findings about whether it accepts the claims he has made about his circumstances and past experiences and then on the basis of these findings it must assess the risk of future harm. In assessing the risk, it is required to consider country information. The Tribunal discussed country information about the risk of harm for supporters of the BNP as indicated in the most recent DFAT report and put to him that DFAT assesses that much of the politically motivated violence now is intra party (within AL) rather than inter party (between AL and BNP) and low profile, non active BNP members and supporters would not face a risk of harm. Information in the DFAT report suggests there would not be a risk of harm to him on the basis of being a returnee after a lengthy absence or failed asylum seeker. The Tribunal invited any comment or response from the applicant. He said he has no comment to make.
Following a short adjournment the Tribunal put to the applicant, under s424AA, particulars of adverse information that would, if relied on, contribute to the reasons for affirming the decision under review. The Tribunal put particulars of information he gave at his arrival interview, to his case officer at the immigration detention centre, and to the delegates at protection interviews (as detailed above) and explained how this information may lead to concerns for the Tribunal about the reliability and credibility of his evidence and claims.
The applicant indicated that he did not know what else he can say about this. The Tribunal said it would allow him a period of 2 weeks to seek advice from his representative if he wished to and make any further response. No response or submissions have been given to the Tribunal within that time, or to date.
FINDINGS AND REASONS
Nationality
The applicant does not have, and did not arrive with, a passport. He claims he has never held a genuine passport in his own name. He provided a birth certificate and nationality certificate to the Department to establish his identity. Since his arrival he has been interviewed by the Department on three occasions, submitted written claims, and had a face-to-face hearing before the Tribunal. In all of these interactions he has provided substantially consistent written and oral evidence about his family composition, place and date of birth. No concerns about his identity or nationality have been raised by the Department at any time.
On the basis of the consistency of his evidence and the identity documents before it, and in the absence of any specific concerns raised about these matters, the Tribunal accepts the applicant is a national of Bangladesh and considers Bangladesh is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal takes the above principles into consideration in making its findings below.
The following claims have been advanced in the course of the two separate applications for protection visas that are the subject of the present reviews: that the applicant’s father was a politician and active member of the BNP and was the subject of a false case of murder and terrorism by the AL which led him to be jailed for 3 months at the end of 2008; that the applicant was involved in preparations for the 2008 elections, along with his father and grandfather involving participation in meetings and rallies; that he was kidnapped by AL in February 2012 and held for one week before being released after payment of ransom by his father; that he was attacked and beaten by AL cadres in June 2012 and spent 7 days in a private clinic; that he had a false case filed against him; that he and his brother, along with others, were involved in a fight with AL supporters in early 2012 which led to the death of one (or more) of the AL supporters and since then members of the AL party have threatened to kill them in revenge and are looking for them; that his brother is involved in BNP activities and because he accompanied his brother, he would be imputed to be a BNP follower.
At the hearing before the Tribunal in November 2022, the applicant said very little about many of the above matters, pressing only the claim that his brother [Brother A] was involved in BNP politics and was subject to a beating by political opponents from the AL, following which the applicant joined his brother and others in a fight in a market place, purportedly involving members of the AL, which ended in a death of one of the AL cadres. Since that time members of the AL have threatened to kill the applicant and his brother in revenge for the incident and they have both fled Bangladesh. No case was ever filed against him relating to this incident. The applicant claimed that his only involvement in politics was accompanying his brother from time to time in his activities and the only reason he fears return to Bangladesh now is the threatened retribution from the AL members in his area who seek revenge for the person killed.

The Tribunal acknowledges that substantial time has passed since the applicant arrived in Australia and since his claims for protection were made. He has given evidence in numerous interviews and statements some of which are years apart, and his oral evidence was given through different interpreters. He had no representation initially and then two different representatives at stages of the process. The Tribunal acknowledges there would be an impact on his memory and recollection caused by the lapse of time, and early interviews may have also been impacted by his state of mind from the journey to Australia and circumstances of detention. The Tribunal has taken all of this into consideration in assessing the evidence before it now. In making its findings, the Tribunal has also considered [Doctor A’s] letter dated 15 July 2021 submitted to the Department that refers to the applicant’s mental health and memory issues. [Doctor A] specifically ruled out any neurological cause for memory issues on the basis of an MRI scan taken but referred to anxiety and mental stress as possible explanations.
Claims relating to applicant and his family’s involvement with BNP politics in Bangladesh
In his written statement in the first protection visa application (12.4.2016) the applicant made claims that his father was a BNP member who hosted political leaders at his home and was falsely charged and jailed for 3 months by the AL for his BNP activities. He elaborated on this in the second protection visa application (25.9.2020) where he claimed his father was an active BNP politician. However, he never mentioned his father’s political background in his oral evidence at the first protection visa interview in July 2017, and in July 2021, at the second protection visa interview, he explicitly contradicted it, answering ‘no’ when asked if anyone in his family was involved in politics in Bangladesh.
Before the Tribunal, the applicant again made no mention about his father’s political affiliation or activities when explaining the reasons, he left Bangladesh in 2012 and why he fears return. It was only when the inconsistencies and contradictions of his evidence about this claim were put to him for comment that he responded his father may have been involved in BNP, but he does not know much about it because he never discussed it with him. This Tribunal finds this response contradicts his earlier claims where he associated his father’s political background with his own political activities and affiliation. In his more recent oral evidence to the delegate and Tribunal he was clear that he had no personal political affiliation or opnion. The Tribunal finds the significant inconsistencies in the applicant’s evidence about his father’s political background and its significance for the applicant, and his later failure to even mention these claims, seriously detracts from their credibility. The Tribunal is not satisfied on the evidence before it, that the applicant’s father is, or was, a BNP member or politician. It does not accept that he hosted political leaders at his home; or was involved in any BNP activities; or that he was threatened by the AL for this reason or falsely charged with murder or terrorism and jailed for 3 months.
Regarding his own political involvement, the applicant claimed in his first written statement that he was involved in preparations for the 2008 elections, including participation in meetings and rallies with his father and grandfather and that he was kidnapped and held for one week by the AL in February 2012. He elaborated in the interview with the delegate in July 2017 that he was involved with the BNP from 2007 or 2008 until 2012 distributing leaflets and pasting posters on the wall and attending meetings. However, in the interview with the delegate in July 2021 he said he was not a member or involved with any political party in Bangladesh. He also told a Departmental officer in April 2013 that neither he nor his brother belonged to any party. Before the Tribunal at hearing, he said that the only member of his family involved in politics was his [Brother A] and that he sometimes accompanied his brother to meetings and processions and may be imputed to be involved on that basis, but was not otherwise involved in any political activities. There was no further mention of the kidnapping by AL and being held for one week before or since the first written statement.
The Tribunal does not accept that the applicant is or ever was involved in BNP activities or election campaigns or that he was kidnapped by AL for that or any reason in 2012. Although he provided more detail about his claimed BNP activities at his first interview in July 2017, he contradicted this entirely at the second interview in July 2021, stating he was not involved in any politics. Before the Tribunal he claimed his brother Eman was the only family member involved in political activity and that he may be associated with BNP because he accompanied him sometimes. The Tribunal discussed the inconsistencies in his evidence about this matter at various points with the applicant at the hearing, explaining the concern it raises for the Tribunal about whether it is truthful or reliable. He provided no persuasive explanation other than that he does not recall what was previously claimed. The Tribunal places significant weight on the applicant’s oral evidence at hearing given most recently, where he stated clearly that he is not, and has not been, personally involved in any politics.
On the claims relating to his brother’s political activities and opinions, in his written claims and oral evidence in the first application the applicant made no claims about his brother’s political activities or affiliations, however at the interview on 21 July 2021 he referred to his brother, who resides in [Country 2], being involved with BNP/Jamaat-e-Islaami and that he would go around with him to meetings and processions. Before the Tribunal he repeated this claim that his brother was involved in politics, and specifically associated with BNP. Earlier, in his statement to a department officer in April 2013, he indicated that neither he nor his brother belonged to any party, and they were beaten up by BNP supporters at a protest. The Tribunal discussed these omissions and inconsistencies in his evidence with the applicant at the hearing and the implications to its assessment of the credibility of his claims. The Tribunal has considered his explanation that he does not recall what was said at earlier points in time and in earlier statements. It has also taken into consideration [Doctor A’s] letter referring to the applicant’s memory loss possibly arising from his mental health conditions. However, it fails to see how these explanations explain his failure to mention his brother’s political affiliation at an earlier time. Given the Tribunal’s findings above rejecting his claims about his father and his own political affiliation, the Tribunal also doubts the credibility of his late claim about his brother’s political affiliation.
In summary, the Tribunal is not satisfied the applicant’s claims relating to his or his family members’ political affiliation, activities or conduct are credible or reliable and it rejects them. The Tribunal does not accept the applicant’s father, his brother or himself are members of, or affiliated with, the BNP, or participated in political activities, meetings or processions on behalf of the BNP. It does not accept that the applicant’s father was a BNP politician, or that he was falsely charged by AL with murder or terrorism or imprisoned for 3 months as claimed. It does not accept that the applicant or his family suffered attacks by the AL or have been subject to vexatious cases since then.
On the basis of these findings, the Tribunal does not accept the applicant was, or will be, of adverse interest to the AL or anyone else on the basis of his actual or imputed political opinion. The Tribunal is not satisfied the applicant faces a real chance of persecution from the AL or anyone else on the basis of his actual or imputed political opinion.
Claims of involvement in a fight in a bazaar with his brother in which a person died.
The applicant first raised this claim in his interview with the delegate in July 2017, when he referred to his brother disobeying a prohibition on driving during a strike and having his car destroyed by AL cadres. He claimed that after that, in early 2012, his brother called him to join a fight with some of the people he believed damaged his car and during this fight a person died. The applicant claimed that since then, members of the AL have been looking for him and his brother to revenge the death of this person and this triggered both his brother and him to leave the country. The Tribunal observes that versions of this claim were made by the applicant from an early stage, when he told a department officer while in immigration detention in April 2013 that he and his brother were caught in a protest and were beaten by BNP (sic) and subsequently were involved in a revenge attack with 4-5 of those who attacked them and two of the people died and the BNP went looking for them since. In his interview with the delegate in July 2021 he repeated this claim about the fight in the bazaar, though he referred to three people being killed and that after that his brother went to [Country 2] and he was sent to [Country 1], then Australia. In his oral evidence to the Tribunal the applicant referred to his brother being beaten and subsequently seeing his attackers in the bazaar, called the applicant and some friends and they were involved in a fight, and a person subsequently died. He claimed that since then people from the AL have been pursuing him and his brother, who fled to [Country 2]. The applicant told the Tribunal he does not know the names of the people who will come after him, only that they are from the next village and belong to AL. The applicant told the Tribunal that this is the reason he fled from Bangladesh, and this is the reason, and the only reason, he continues to fear return.
The Tribunal observes that while there is some consistency in the gist of this claim from 2013 when it was first made - that there was a fight in the bazaar involving the applicant, his brother and others that led to a fatality – details about significant other aspects are substantially inconsistent across the accounts. For example, when it was first made in April 2013, the applicant referred to the attackers being from BNP whereas he has subsequently claimed they were from AL. In the first account he referred to two people having died. In the July 2017 account he said one person died. At the July 2021 interview he said three people died in the fight. In his evidence to the Tribunal in November 2022, the applicant referred to one person died in hospital after the incident. He has no details of the names of the people or specifics of their address. The Tribunal considers these inconsistencies relate to material and significant facts and cause the Tribunal to have serious doubts about the credibility of the claim. The Tribunal would expect, if truly the reason that triggered him to flee the country, he would be able to consistently recount who they were fighting people (people from BNP or AL), why the attack occurred (due to his brother being beaten up or his car being damaged at, or not at, a strike) and how many fatalities occurred (one, two or three). The inconsistencies about core, significant facts suggest the claim is not truthful or credible. Above the Tribunal rejected that the applicant or his brother had any affiliation to BNP and therefore it does not accept there was any political motivation involved.
For these reasons the Tribunal does not accept the applicant was involved in a fight in a bazaar with his brother which led to a fatality/ies and does not accept members of the AL, or anyone else, are pursuing him or his brother since then. As a consequence of this finding the Tribunal also rejects the applicant’s claims that he was located on the street and beaten up by members of AL in the period prior to his departure, or that his house was attacked, or his father or sister were beaten up. It does not accept that any AL cadres or anyone else have been enquiring about his or his brother’s whereabouts since he has been in Australia.
Having rejected these claims, the Tribunal is not satisfied the applicant faces a real chance of persecution upon return to Bangladesh in the reasonably foreseeable future from the AL because of this reason and/or any imputed political opinion arising from it.
Claim that the applicant, if returned, will be a failed asylum seeker who departed Bangladesh on a false document.
On the evidence before it, the Tribunal accepts that, if returned, the applicant would be a failed asylum seeker, who has spent a substantial time overseas in a western country. It also accepts on the evidence of the account he provided of his journey and documentation with which he arrived, that he did not use his own passport when departing Bangladesh.
Risk of future harm as a failed asylum seeker
DFAT’s most recent Country Information Report on Bangladesh provides the following information relevant to Treatment of Returnees and Conditions for Returnees:
5.21The 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.
5.24It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.25Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
5.26DFAT 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.[1]
[1] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT) 22 November 2022, p36
The Tribunal notes that DFAT’s earlier report, in February 2018, similarly concluded:
DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.[2]
[2] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT), 2 February 2018, p. 36
The Tribunal accepts that the applicant, if returned to Bangladesh, would be returning after being absent for a substantial period of almost one decade. Returning from Australia after so long, the Tribunal accepts the authorities may assume that he had sought asylum here and failed. The Tribunal accepts, on his evidence, that he departed the country on a false document. The above country information indicates that in doing so he may have breached the 1982 ordinance in effect prior to the current OEMA relating to departure on valid passports, however the information indicates that prosecutions for this are rare and DFAT is not aware of any cases. Reference is made to isolated cases of people being detained and questioned by police about the means of departure. However having found, above, that the applicant has no BNP background or profile of interest to the authorities, the Tribunal is not satisfied he faces a real chance of serious or significant harm on this basis.
On the basis of the findings above, and considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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 has considered whether 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 as defined in s36(2A) of the Act.
Above, the Tribunal rejected the applicant’s claims of having any BNP political affiliation and/or opinion or being of interest to AL because of an incident involving a fatality. It accepted that he would have upon return a profile of a failed asylum seeker returnee who departed the country unlawfully. Considering these findings, for the same reasons the Tribunal was not satisfied that he faced a real chance of serious harm above, the Tribunal is also not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Bangladesh.
Accepting that the applicant has been outside Bangladesh now for almost 10 years, the Tribunal acknowledges that he may face challenges and hardships reintegrating with his family and into society in Bangladesh and find it difficult to get work. However, it finds that financial hardship or unemployment does not come within the meaning of ‘significant harm’ for the purposes of this criteria. Therefore, while sympathetic to the applicant’s situation regarding his economic prospects and future there, it is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on this basis, if he is returned to Bangladesh.
While the applicant did not specifically raise concerns about the COVID 19 situation in Bangladesh or natural disasters such as the recent floods, the Tribunal has also considered these circumstances. However, while the Tribunal accepts there would be COVID-19 related risks in Bangladesh and risks related to natural disasters, including annual floods, it finds these are risks faced by the population of the country generally, and there is no evidence before it that suggests it would affect the applicant personally. On this basis the Tribunal is satisfied there is no real risk the applicant will suffer significant harm in relation to COVID-19 related risks, or those associated with natural disasters, as per s36(2B)(c).
Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, 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, he will suffer significant harm.

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 criterion in s 36(2).
decision
The Tribunal affirms the decisions not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2022] AATA 5052

12 December 2022

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