1904654 (Refugee)

[2022] AATA 5124

1904654 (Refugee) [2022] AATA 5124 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBERS:  1904654 and 2202259

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Melissa McAdam

DATE:21 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 December 2022 at 8:37am

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh– political opinions – brother’s active involvement with the BNP – applicant’s close association with his brother’s political activities in Bangladesh – applicant’s BNP involvement and protest activity in Australia – adverse political profile – harm feared is systematic and discriminatory – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 411, 427, 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

1. This is an application for reviews of decisions made by a delegate of the Minister for Home Affairs on 20 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in relation to the reviews.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] February 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 Migration Act 1958 (Cth) (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 decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

4. The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 7 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, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant first applied for a Safe Haven Enterprise visa on 30 March 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 made on 18 September 2020 which was also valid.

6. The first application for a Safe Haven Enterprise visa on 30 March 2016 was refused by the delegate on 8 September 2017.  The delegate refused to grant this visa on the basis that he was not satisfied the applicant met the criteria for the grant of the visa.  The applicant was validly notified of this decision on 20 February 2019.  A valid application for review of that decision was made on 28 February 2019.

7. The second application for a Safe Haven Enterprise visa on 18 September 2020 was refused by the delegate on 4 February 2022. The delegate refused to grant this visa on the basis that that she was not satisfied the applicant met the criteria for the grant of the visa.  A valid application for review of that decision was made on 20 February 2022.

8. Under s.427(2) of the Act the Tribunal must combine the reviews of two or more Part 7-reviewable decisions made in respect of the same non-citizen.  The Tribunal has therefore combined the applicant’s two review applications.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    Entry Interview

15. The following information was recorded by a departmen officer in writing during the applicant’s ‘Entry Interview’ on 20 February 2013:

    a.The applicant was born in [year] in Kustiya [Kushtia] district in Bangladesh. 

    b.From about July 2007 to about August 2009 he lived in [Country 1].

    c.He returned to Bangladesh in approximately August 2009 and lived in Kustiya again until November 2012.

    d.He completed ten years of school in Bangladesh.

    e.He worked on his family farm and in his family business buying and selling [products] in a bazaar in Bangladesh.  He worked in a [workplace] in [Country 1].

    f.He is Muslim and never married.

    g.His father [and siblings] live in Bangladesh. His mother is deceased.

    h.He left Bangladesh because the situation was pathetic for his family and his brother [Mr A] was involved in politics.  Two or three cases were filed against the applicant’s brother because he is a member of the opposition BNP. Sometimes the police would come to look for him and if they didn’t find him they would torture the family.  This started in 2007. 

    i.He does not know what BNP stands for. It is a political party. His brother has been in the BNP a long time, since his college.

    j.The police would come at night to look for the applicant’s brother. If they could not find him they would verbally abuse the applicant and his family.  There was no physical abuse.  The last time the police visited was a year ago, in February 2012. The applicant’s brother is in hiding in Dhaka. The applicant’s family sent some money for him to live there.

    k.The pressure and persecution on the applicant’s family increased and the applicant has been targeted and threatened by the Awami League who are in government.  They said if they can’t find the applicant’s brother they will get the applicant. The most recent threat to the applicant was about two months ago.

    l.The applicant’s brother was the only one in the family involved in political protests and activities, including meetings and rallies.

    First Protection visa application, 30 March 2016

16. In his first Protection visa application the applicant provided the following additional information:

    a.He was born and brought up in a small village in Bangladesh. It was a small village where people know each other very well and live like a close-knit community.

    b.His mother passed away in December 2008.  All his sisters are married and it is only his father, [brothers] and the applicant who lived at the family home.

    c.The applicant’s elder brother [Mr A] was always interested in politics and is an active Bangladesh Nationalist Party (BNP) member. He has greater political ambitions and despite warning him not to enter politics, he decided to join the BNP and took active parts in all the protests, rallies, agitations and meetings.

    d.In Bangladesh, there is immense political rivalry between the members of BNP and that of the Bangladesh Awami League Party (BAL) and clashes between the members of these two parties are not uncommon in Bangladesh.  The common man is always left helpless and cannot show any resistance. This political rivalry is more intense in neighbouring villages including the village where the applicant lived. This has been so from 2007 and only grown since.

    e.The BAL members have filed 2-3 false police complaints against the applicant’s brother implicating him in murder and assault on police.  He fled to Dhaka following this incident. The applicant’s family sent him money there. He has been hiding since then. He has good political connections and a network and is fulfilling his ambitions from Dhaka. His political party is not the ruling party, however, he believes that the scenario will change and he will then come out of his hiding.

    f.The applicant has no interest in politics and cannot stand violence. The members of BAL have threatened and tortured the applicant several times. They have filed 2-3 police complaints against the applicant’s brother and destroyed the family’s [property] as well.

    g.The applicant feared for his life all the time. That is when he decided to escape from the country as the members of BAL will find him if he is in the country. He does not have any political or other intelligence where he can live his life hiding from people.  Nor does he have the financial strength to keep moving places all the time.

    h.The police also registered a false complaint against the applicant when he was not in the country.

17. The applicant attached several documents in the Bengali language without translations.

18. On 27 June 2016 the applicant’s then representative provided a translated copy of the applicant’s Bangladesh Birth Certificate, and a record of his past employment and addresses in Australia.

19. On 6 October 2016 the applicant’s then representative provided a written submission repeating the applicant’s claims and listing relevant country information.  He also provided English translations of Bangladesh police and court documents.

    Department Interview, 7 June 2017

20. The applicant was interviewed by a department Delegate on 7 June 2017. Based upon an audio recording, the following is a summary of the information he provided in the interview:

    a.The documents the applicant submitted were information reports and warrants about his brother. There has also been a warrant issued against the applicant.

    b.He travelled to Australia via [Country 1] and [Country 2]. He was in [Country 1] for two weeks on his way to Australia. He also went to [Country 1] in 2007 and stayed there until 2009.

    c.His mother is deceased.

    d.His father is in Bangladesh and lives with the applicant’s eldest brother. The applicant has [siblings].  The two brothers who have outstanding warrants are outside the country. One was in [Country 3] but the applicant does not know where he is now. By ‘two brothers’ he means himself as well. 

    e.The applicant reached year 10 in Bangladesh. He worked on the family farm and did a little shop keeping in the family [shop].

    f.His brother was involved in politics and the applicant was with his brother. The applicant was not in a political party. He is not an active supporter but was with his brother all the time. The applicant would drive his brother around on a motorcycle and then stay.  The applicant’s brother was in the BNP, he was an official at the Thana level. He was the organisational secretary of the volunteers group.

    g.In 2006 there was a political scuffle and a few people died and the incident was put in the applicant’s brother’s name because he was a local leader.  Things also happened in 2007. 

    h.After the incident the applicant’s brother was in hiding so the authorities came after the applicant as he was with his brother all the time.  So the applicant had to stay out of his area. 

    i.The applicant never participated in any of the meetings or rallies. He would just drive his brother around.

    j.In 2013 the applicant and his brother were both outside the country but they were framed that they attacked the police. This is in one of the documents.

    k.The applicant was threatened and abused in very bad language by the police. Other than that he did not have any trouble with the police. The police said the family has to give up the applicant’s brother and they had only two weeks or else the applicant would be shot in an encounter.  The family did not know where the applicant’s brother was.  The applicant’s father gave the applicant some money and told him to go.

    l.That was the only time the applicant had an encounter with the police.  After the applicant left, the police came back and harassed the applicant’s brothers who were not at all involved in politics.

    m.Two or three times the applicant’s family was threatened by the Awami League.  The applicant had no face to face confrontation with the Awami League but they threatened the applicant’s family.  This was after the applicant and his brother had left the village. The police had told the Awami League that they could not find the applicant and his brother so the Awami League went to the applicant’s family and threatened them.

    n.The applicant’s two younger brothers are still at home but they are under pressure and not allowed to run their business.

    o.The situation started in 2006. It went on and on. It has now become so bad. The political hassle started since 2006 but the applicant didn’t face much.

    p.The applicant was threatened by the police from 2012.  The Awami League were threatening the applicant but they could not get hold of him.  There was one time they threatened to finish the applicant off if his family didn’t produce his brother. This was in late 2012.  They abused the applicant with very bad language and slapped him around.  The applicant didn’t mention this before because it slipped his mind.

    q.The police came and then the Awami League came and then the applicant left home.  There were three times, one time with the police and two with the Awami.  The two weeks were up and they came again and they said time’s up and they threatened again and just left.  They were more abusive than the first time.  They told him next time he would be finished off.

    r.The applicant’s brother was in contact with the family when he first left in 2006 but they have since lost contact. The applicant’s brother has been charged with murder and with beating up the police.  People died in the 2006 incident but the applicant’s brother was not involved in this.  The beating up of police is also a false charge against the applicant’s brother.

    s.In 2006 the BNP was attacked and they opened fire and people died. The applicant’s brother was in charge at the time but he was not involved.  The leaders are always targeted.  There was a meeting in the party office at the time and then they went on a procession and they were attacked. The applicant’s brother’s security guards opened fire and people from the Awami League were shot.

    t.There is nowhere else in Bangladesh that the applicant can live because he will be found. When people go to another place to live they know he is an outsider.  The police and Awami League and have very good networks.

    u.The case against the applicant is beating up the police. It is totally false as he was not even in the country at the time.

    Delegate’s decision, 13 February 2018

21. In the delegate’s decision dated 13 February 2018 the delegate accepted that the applicant had no interest in politics and was not an active supporter of any political party; and that his brother was a low-level supporter of the BNP. The delegate did not find any of the applicant’s other protection claims credible. The delegate was not satisfied the applicant had a well-founded fear or persecution, or was at real risk of significant harm, on return to Bangladesh.

    91L(1) and s 48B(1) notice

22. On 18 September 2020 the department notified the applicant that on 8 November 2019 the Minister made a determination under subsection 91L(1) that section 91K did not apply to an application for a visa made by the applicant in the period starting from the date of notification and ending at the end of the seventh working day after the notification. Further, the Minister also made a determination under subsection 48B(1) that section 48A similarly did not apply.

    Second Protection visa application, 18 September 2020

    Protection visa application form

23. On 18 September 2020 the applicant lodged another application for a Protection visa. He provided a further written statement repeating the claims in his previous written statement and providing the following additional information:

    a.The police went to the applicant’s home in Bangladesh several times and threatened and verbally abused the applicant. They repeatedly threatened that they will get the applicant if they don't find his brother. He is extremely worried that they will make him a scapegoat and trap him in some false case and imprison him. It is also highly likely that the applicant could be targeted and killed.

    b.One day, on or about October 2012, the applicant fled to Dhaka late in the night hoping and praying that nobody noticed him. He was determined to leave Bangladesh.  His father supported the decision as he was privy to how miserable the applicant’s life had become due to the growing pressure from members of the BAL. The applicant was in constant fear and kept feeling anxious all the time. This is when a friend of his suggested that he must try to go to Australia.

    c.The applicant stayed in Dhaka for about a month seeking guidance from a few people and agents on how to reach Australia. He was mentally exhausted by being made a political scapegoat all the time. He personally does not like politics nor does he want to get involved in it.

    d.The applicant was introduced to an agent [Mr B] who told him to go to [Country 1]. He entered [Country 1] on a valid visa, however, [Mr B] kept his passport and refused to give it to the applicant. [Mr B] helped the applicant transit to [Country 2] by boat and then finally to Australia.

    e.The applicant has been subject to threats and abuses back home and there is an imminent danger to his life if he is deported to Bangladesh since political connections and contacts of the BAL members will not allow him to live peacefully anywhere in the country and the members of BAL will kill him.

    Department Interview, 27 July 2021

1. The applicant was interviewed again by a department Delegate on 27 July 2021. Based upon an audio recording, the following is a summary of the information he provided in the interview:

   a.All the information he provided in his application is correct.

   b.The applicant came to Australia because of the pressure on him about his brother.

   c.The applicant’s father died in June this year. His two brothers are still in the village in Bangladesh.  His sisters are married and live in their own villages.   His [other] brother was living in Dhaka when the applicant came to Australia. About two months after the applicant arrived in Australia he found out his brother went to [Country 3] but the applicant has since lost contact with him.

   d.The delegate put to the applicant that in his Protection visa application he wrote that [this] brother lives in Bangladesh. The applicant responded that when the applicant left [this] brother was in Dhaka.

   e.No one else, except the applicant’s [specified brother, is involved in politics.

   f.The applicant can’t go back to Bangladesh because there is a political problem in Bangladesh. They have no news of his brother, he is missing. If the applicant goes back to Bangladesh there is no security for him.  The applicant’s family are not involved in politics they are just supporters, but because of the applicant’s brother they are persecuted. The politics in Bangladesh is very vengeful.

   g.The applicant’s brother was going to [Country 3] but the family do not know if he got there. After the applicant’s brother left for the airport there was no news. 

   h.The people in power, the Awami League, would want to harm the applicant.  The politics in Bangladesh is based on vengeance.  Because of the applicant’s brother’s activities they want revenge on the family.

   i.The applicant’s two brothers are in the village but their difficulties are not as great as the applicant’s. There is a lot of pressure on the applicant’s family. The applicant has been targeted and threatened many times.  Two months before the applicant left for Australia he was threatened deliberately. They said if they don’t find his brother they would kill the applicant. This was in 2012.  He doesn’t remember the date.  It was in August.

   j.The applicant had a relationship with his brother and would go places with him. They think the applicant knows where his brother is.

   k.The problems with the applicant’s brother started in 2007.  The family thought BNP would come to power, but the Awami League took over. The applicant’s brother was incriminated in false cases starting from 2007.  It became more acute after that.  When the Awami League came to power people were killed and disappeared and there was no limit.

   l.The applicant’s brother went into hiding in 2012.  Starting from 2011 the applicant’s brother faced a lot of problems and was hiding in the local area and then in 2012 he went to Dhaka. The applicant’s problem started in 2012.  After his brother left the problem became serious.

   m.Apart from being targeted two months before he left Bangladesh nothing else happened to the applicant. He did not experience anything else from the Awami League or anyone else.

   n.The applicant’s brother became a member of the party in his college life. The applicant’s brother was involved in student politics and had good relationships with the leaders. The applicant’s brother was involved in the BNP.  BNP is Bangladesh Nationalist Party. He was targeted in 2012 because when the Awami League came to power illegally in 2008, they started oppressing and harassing opposition workers. This went into extreme form in 2012. The problem started in 2006. His brother tried to handle the situation but could not. So in 2012 he had to leave.

   o.The problem in Bangladesh is that the situation is worse than before.  His brothers in Bangladesh are under a lot of pressure. If the applicant returns to Bangladesh they can find him. They assume he is involved in politics because he was with his brother.

   p.Prior to the Awami League coming to see the applicant the police came to his house.  The applicant was threatened face to face by the police two months before and one year before he left Bangladesh. The police threatened the applicant because they were looking for the applicant’s brother.  Maybe they were told if they catch the applicant they would get information.  The police wanted his brother because he was involved in a procession and all these activities.

   q.The applicant was not physically assaulted but he was verbally abused.

   r.The applicant was implicated in a false case after he left Bangladesh and came to Australia.  There was a clash between people and the applicant was implicated. He was not there, he was in Australia. He has submitted the papers to the department. He does not know what occurred. The incident happened in the applicant’s area in 2013.  The Awami League did not know if the applicant was in the country or outside the country.  They didn’t check, they just put his name in the case.  This is the only pending case against him.

   s.The applicant wants to submit information about the situation in Bangladesh between 2016 and now.  The Delegate agreed to allow him seven days to submit further information by 3 August 2021.

2. According to the delegate’s decision record no further information was received from the applicant or his representative.

   Delegate’s decision, 4 February 2022

3. In the Department decision dated 4 February 2022 the delegate did not accept the applicant’s protection claims as credible. She accepted the applicant was not involved in politics in Bangladesh. She found that his brother was a low level supporter of the BNP.  She did not accept that the applicant or his brother were of personal interest to the Awami League. The delegate was not satisfied the applicant had a well-founded fear or persecution, or was at real risk of significant harm, on return to Bangladesh.

   Information to the Tribunal

   Pre-Hearing Submissions

4. On 19 October 2022 the applicant submitted the following written materials to the Tribunal:

   - a letter from the [BNP] Australia, dated [October] 2022 stating that the applicant had been working with BNP Australia since June 2016, he is an executive member of the youth wing, and he is an opposition activist who participated with his family in anti-government rallies in Bangladesh.

   - a BNP Australia ‘Membership Application form’ in the applicant’s name.

5. On 23 October 2022 the applicant submitted the following written materials to the Tribunal:

   - four photographs of himself participating in BNP Australia protests in Sydney.

   Tribunal Hearing

6. The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant works in [an] industry.  He lives in Sydney with two friends including a person with whom he came to Australia.  He has no relatives in Australia.  He has made some friends in Australia.

   b.In Bangladesh he lived in the Kushtia district in a village in Mirpur.  He has not lived in Dhaka.  He was always in Mirpur while in Bangladesh.

   c.His father is deceased and his mother has passed away too.  His two brothers are living in the family house.  His sisters are married and live with their husbands in different parts of Mirpur.  The applicant has another brother but the applicant does not know where this brother is.

   d.His two brothers in Mirpur survive but are not in peace because of the Awami League.  At times they are subject to harassment.  Because he and his other brother were involved in the BNP his two brothers in Mirpur are under pressure.  They survive with their families but don’t have a free life. It is very limited.  The other people put them under pressure and harass them and tell them that their brothers are from BNP.

   e.The local Awami League leader in Mirpur is Kamarul Arefin.  He is the Upazila chairman. The local BNP leader is Abdul Haque.  He was in power in the past in 1995 and for five years from 2001, but not now.

   f.The applicant left Bangladesh in 2012.  After he arrived in Australia he had no contact with his brother who is missing.  Nobody has had any contact with him.  The applicant thinks he has been picked up and abducted.  Members of the applicant’s family told him that his brother was preparing to go overseas to [Country 3] and went to the airport. After this nobody knows of his whereabouts. The applicant thinks he was taken from the airport. The applicant was in Australia at the time.

   g.The applicant does not want to return to Bangladesh because there is a pending case against him, initiated in 2013.  Further, when Sheikh Hasina came to Sydney in 2018 the applicant was involved in protests against her.  He has submitted pictures of this. Because of this he is scared.  They have the record of his protest and if he tries to return he will be in trouble.

   h.He has not mentioned attending the protest in Sydney before because members of his family told him if he got involved in political activities and it is publicised they may get in further trouble. He didn’t mention it to the department Delegate last year because he didn’t want to publicise it and because he forgot.

   i.The Sydney protests against Sheikh Hasina were on 27 and 28 April 2018.  On 27 April 2018 it was at Darling Harbour and on 28 April 2018 it was outside the Sofitel hotel.

   j.The applicant has been to other protests but doesn’t have photographs of these. Occasionally there are activities in [Suburb 1] with the community. Sometimes they are protests and sometimes party meetings.  The protests are against the illegitimate Bangladesh government. The government is abducting people.  In Bangladesh people go missing so the applicant’s organisation wants to bring that to the notice of the media.  They gather together and the leaders deliver talks.

   k.The last time the applicant attended a protest was about two months ago in [Suburb 1], it was a meeting.  The last protest the applicant attended was six months ago [in] [Suburb 1].  There were roughly 200 or 300 people present.  [Name] organised it.  The main issue was to know what was true and to keep the media informed.  The applicant should be able to find reports of this to submit.

   l.The applicant did not tell the department Delegate about his activity in Australia because he was not quite aware of these things.  He came here new, and shaky.  Members of his family told him not to get involved in any other litigation.  He is a very scared type of person.  It was a mistake not to tell the Delegate.

   m.He became a member of the BNP in Australia in 2015.  He joined because his brother is missing and he doesn’t know if his brother is alive or not. In order to survive the applicant has to do political activity.

   n.The applicant was involved in BNP politics in Bangladesh with his brother, in that the applicant would drive his brother to political events but not get involved.  In Australia he has become involved in BNP politics because of his brother.  The local leaders here are connected to the big BNP leaders in Bangladesh so he needs their help. Until now he has not received any help from the BNP local leaders in Australia. 

   o.The Tribunal put to the applicant that it has been ten years since he left Bangladesh so why would anyone want to harm him.  The applicant responded that obviously they have a record and they have records of the protests the applicant has been to. 

   p.The applicant also has a pending case in Bangladesh.  This is because he used to help his brother.  The applicant took his brother places on his motorcycle so he was with his brother.  The applicant rode with his brother to the meeting place and was in the meeting place and rode away from the meeting place with him.

   q.The Tribunal put to the applicant that he had not mentioned being in meetings before. The applicant responded that in his previous interview he answered many questions and made mistakes.

   r.The only family member involved in the BNP was the applicant’s brother, [Mr A].  No one else in the family was involved. The applicant’s brother was a BNP member so opponents and police incriminated him in false cases including murder cases.  They harassed him and they might have killed him if they found him.  His problems started in 2007.  There was an incident in which the applicant’s brother was with his guards in a protest gathering.  The protest was attacked by the Awami League and his brother’s guards shot and killed some Awami League people.  The applicant’s brother was then blamed for this.  This happened in October 2007 but it didn’t become serious until 2012.

   s.The applicant’s brother was one of [many] accused, with different charges.  Most of the accused went into hiding.  The applicant’s brother was also in hiding. The applicant does not know where his brother was hiding.  The applicant was in [Country 1] at the time his brother went into hiding.

   t.The applicant last saw his brother in 2012 in Dhaka when they met secretly.

   u.Although the applicant’s brother was in hiding from 2007 he still kept in contact with BNP party leaders, but did not have any other political activity. 

   v.The applicant returned to Bangladesh in 2009 because his work contract in [Country 1] ended. It was quite slow in Bangladesh and the applicant had no issue there until 2012. In 2012 the police were looking for the applicant’s brother and they threatened the applicant they would take him if they didn’t get his brother.  This was the year the authorities became active against BNP members.  The police hoped they would get information from the applicant’s brother if they arrested him, because his brother had previously been very active with the BNP.

   w.The applicant’s brother started his involvement in politics during his college years.  Whenever the applicant’s brother did anything political the applicant was with him.  This was over two or three years. The applicant would transport his brother to political events on his motorcycle but the applicant would not get involved in any political activities.  The applicant’s brother could ride a motorcycle but he wouldn’t go alone. If two brothers go it gave more moral support and more confidence, in case there was a problem or a security issue. That is how Bangladesh is.

   x.The applicant didn’t get involved in his brother’s political activities because at the time he was not interested in politics.  The applicant knows the BNP is a very good political party. They want the development of the country and the betterment of the people.  The applicant doesn’t have anything else to say about the BNP. The applicant knows that the BNP is a good political party which thinks about the general welfare of the people and the development of the country and the safety and security of the country.  The Tribunal asked the applicant to speak about the BNP’s ideologies.  The applicant responded that the BNP ideology is to make a developed and happy society and lead the country in a proper way and help the poor and needy.  The Tribunal asked how this is different from Awami League ideology.  The applicant responded that there is no similarity between the two parties.  When the Awami League came to power illegally they connived with India and are under Indian influence.  When they are in power they take the Islamic leaders into custody and don’t allow religious activities or Muslim activities, they put Islamic leaders in jail.

   y.The Tribunal asked the applicant about the different stages in his political career. The applicant responded that he had knowledge about the BNP.  Coming to Australia he was interested in the BNP here and joined and became more interested.  Prior to coming to Australia he had no interest in BNP politics.  In Bangladesh if someone is involved in politics and a family member is seen publicly with them then it is assumed the family member is also involved in the same politics.

   z.The Tribunal put to the applicant the contents of the letter from the Australian BNP representative, submitted by the applicant. The applicant responded no he did not have a political career in Bangladesh. He did not participate in protests with his family in Bangladesh but he was at any rally that his brother went to.  The applicant told the BNP Australia representative what he did in Bangladesh, that he went with his brother to different activities.

   aa.The applicant has no role in the BNP Australia, he is just a member, nothing else.  The Tribunal asked why the BNP Australia representative had described the applicant as an Executive Member of the BNP Youth Wing. The applicant responded he forgot to mention this because he was nervous. 

   bb.The last time the applicant attended a meeting of the BNP in Australia was about two months ago in [Suburb 1]. It was the anniversary of the founding of the BNP and there was a gathering.  Different political people gave speeches.  The applicant did not give a speech.  He has never spoken at a meeting.

   cc.The applicant was not personally harmed in Bangladesh.  The police came to his house before he left and they threatened him so he became very scared. His family decided to send him out of Bangladesh.

   dd.The police did not threaten the applicant’s father or his two other brothers because they had nothing to do with his political brother. The police targeted the applicant because he was with his brother at his brother’s political activities. The police thought they could get information from the applicant about his brother. The police went looking for the applicant’s brother and the applicant told them he didn’t know where his brother is. The police said you used to be with him all the time, you know everything.  They suspected the applicant.  The police gave the applicant two weeks to provide information about his brother or he would face the consequences.  The consequences were that the applicant would be taken by the police instead and they might kill him.  They said to the applicant if he didn’t give information then because his brother has so many cases pending they will take the applicant. This happens in Bangladesh.

   ee.The current situation in Bangladesh is too bad.  After his departure he was implicated in a false case. Also he has attended the protest meetings in Sydney.  And the authorities have a record because he left Bangladesh without contacting the police. So out of anger the police there lodged the case.  The applicant’s family said the police did it.  The Tribunal put to the applicant that it seemed unusual the police would lodge the complaint, not a member of the public.  The applicant responded that somebody must have lodged a complaint and the police and the Awami league all collaborated in making the false case against the applicant.

   Country Information

7. DFAT’s most recent ‘Country Information Report’ on Bangladesh, published in November 2022, contains the following:

   The Bangladeshi Nationalist Party (BNP) won the 1991 election under Prime Minister Khaleda Zia (widow of former president Ziaur Rahman, who was assassinated in 1981). Power alternated between the BNP and the AL between 1991 and 2006 with Bangladeshi politics being dominated by political violence and the rivalry between Zia and Hasina. After a brief period of caretaker/military rule, the December 2008 election was won by the AL, led by current Prime Minister Hasina, which has been in power ever since.
   …

   Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.

   The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.

   Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.

   … According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.

   The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.

   …

   Bangladeshi Nationalist Party (BNP)

   The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.

   The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.

   The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.

   BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.

   The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.

   There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.

   False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.

   The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.
   …

   Protesters – online and street demonstrations

   Street protests, strikes and blockades are a common occurrence in Bangladesh that sometimes result in or from communal violence. …

   Widespread protests occurred in April 2021 against a visit by Indian Prime Minister Narendra Modi. The protests were held across several districts, and shut roads, schools and other facilities. The protests were led by Hefazat-e-Islam (HeI). HeI is not a political party but it is influential because it runs a large number of madrassahs. Thirteen HeI members died when police opened fire on the protests.

   ‘Hartals’, sometimes called ‘general strikes’, are a form of protest common in Bangladesh in which protesters attempt to shut down roads or businesses to bring attention to their cause. Leftist parties called a hartal against inflation in March 2022, for example. The BNP held a hartal in February 2020 against mayoral election results.

   …

   With regard to online protest activity, sources told DFAT that certain topics on social media are more likely than others to attract attention from authorities. These include corruption and personal lives of powerful people (including historically powerful people), issues promoting religious disharmony and LGBTI issues. Journalists and others with a profile are much more likely to have their social media targeted.

   Low-profile social media users are less likely to be targeted, although it does happen occasionally. For example, a social media user and university student was beaten to death by the Bangladesh Chhatra League, the student wing of AL (see Political auxiliary organisations), in October 2019. The posts he made were about India-Bangladesh relations and were not about the AL as such.

   A teenager was arrested under the DSA in April 2021 after posting a music video that mocked Prime Minister Hasina and visiting Indian Prime Minister Narendra Modi. Hundreds of people who have posted anti-government messages online have been arrested under the DSA.

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

   Torture is unlawful, but human rights groups allege that it is common, especially perpetrated by the police, intelligence officers and the Rapid Action Battalion. According to sources and organisations like Human Rights Watch, methods of torture include beatings with iron rods and other weapons, electric shocks to the ears and genitals, fingernail removal, waterboarding, hanging from ceilings, shooting to maim, kneecapping, prolonged exposure to loud music or light, mock executions and enforced nudity.

   According to Odhikar, a Bangladeshi human rights NGO, torture can be used to extract confessions which are then admitted in court. According to human rights organisations, torture is most common when a suspect is on remand. In other cases, prisoners are recruited to torture other prisoners.

   The 2021 US Department of State Human Rights Report quotes sources who claim that torture is used for the solicitation of bribes. Odhikar alleges that the Indian Border Security Force have killed, tortured and raped Bangladeshi nationals at the border between India and Bangladesh. Odhikar’s July to September 2021 report alleges that five people were tortured and killed in that period.

   According to the 2021 US Department of State Human Rights Report, three police officers were
   sentenced to life in prison for torture in 2021. DFAT understands that investigations into torture are rare and that torture is often carried out with impunity.

   Arbitrary arrest and detention and criminal procedure

   Arrests need to be made on authority of a warrant under the law. In practice there are many
   exceptions to this rule and widespread police impunity. Arrestees should, as a matter of law, be taken before a magistrate within 24 hours of arrest, but this does not always occur. Bail is available but may mean little in practice; police often arrest people as soon as they are out on bail to begin the entire procedure again.

   BNP activists claim that they have been subject to mass arrests, telling Human Rights Watch in 2021 that 300,000 of their ‘leaders and activists’ were accused in ‘false and fabricated’ cases.  Arbitrary arrest of other critics of the government has also been reported.
   …

   Police

   … Professionalism varies across the police service. Senior officers are relatively well trained and well paid. Those in lower ranks by contrast are poorly paid, poorly trained and poorly equipped. Low incomes encourage corruption and solicitation of bribes is common. Rules designed to ensure accountability and probity (for example, limits on police arrest or ability to hold suspects) are not always adhered to.

   Bribes are sometimes paid to influence outcomes of investigations, or to cause an investigation to occur, or not to occur. Allegedly, demands for bribes, or the threat or act of violence, may also be used to apply political pressure, according to sources. Political patronage may also affect outcomes of police complaints; for example, a complaint is more likely to be investigated if an influential person intervenes on behalf of the complainant.

   … Most people do not trust the police, given their reputation for corruption and violence. Some
   religious minorities, for example, have benefited from police presence, but most people that DFAT spoke to had a negative view of police. GAN Integrity, a United States consultancy, notes ‘Businesses ranked the Bangladeshi police as one of the least reliable in the world and noted business costs due to crime and violence.’ DFAT assesses that most Bangladeshis, whether in business or not, would avoid contact with police for similar reasons.
   …

   Conditions for Returnees

   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.

1. An October 2022 Human Rights Watch[1] report states:

   Opposition groups are reporting an escalation of repression by Bangladesh authorities and attacks by ruling party supporters as the country starts preparing for national elections in 2023, …. … Mass arrests and police raids of opposition party members’ homes raise serious concerns about violence and intimidation ahead of the upcoming parliamentary elections. Bangladesh election campaigns are often accompanied by violence, but the authorities have failed to properly investigate and prosecute members and supporters of the ruling Awami League, who have targeted opposition public meetings and assaulted participants.

   … At least four people have reportedly died and hundreds have been injured in clashes between police, supporters of the opposition Bangladesh Nationalist Party (BNP), and Awami League supporters, since August 22, 2022, when the BNP staged a series of protests over fuel and commodity price increases. There are concerning reports of the killing of BNP activists during other recent clashes. Each side has accused the other of instigating the violence. However, while police have carried out mass arrests of opposition supporters, those affiliated with the ruling party appear to have impunity for violent attacks.

   Among those injured was Tabith Mohammad Awal, BNP executive committee member and former mayoral candidate for the northern section of Dhaka, the capital. Awal was participating in a candlelight vigil organized by BNP in the Banani neighborhood of Dhaka, on September 17, when ruling Awami League supporters attacked the meeting, throwing stones and beating people with iron rods.

   “I can clearly identify my attackers, who were members of the Awami League North Dhaka committees,” Awal told Human Rights Watch. “The police were present but did absolutely nothing to help me or stop the attacks or even help after I was hurt. Later, the OC (office-in-charge) of Banani even denied anything happened.”

   Instead, authorities have filed mass cases against BNP supporters following these clashes. For example, following a clash on September 21 in which Shahidul Islam Shaon, an activist with the BNP youth wing, was killed, police filed two cases naming 365 BNP leaders and activists as allegedly responsible for crimes, as well as 1,400 as yet unidentified. Police often add people to existing cases as one of those previously unidentified.

   According to BNP leaders, at least 20,000 cases have been filed against its supporters, in many cases with the accused unnamed. The use of criminal complaints against large numbers of “unknown” people is a common abusive practice in Bangladesh, allowing the police to intimidate and threaten virtually anyone with arrest, to repeatedly re-arrest detainees even though they are not the named accused in the cases, and to thwart bail requests.

   …The authorities are also increasingly targeting relatives of expatriate dissidents as a means to threaten critics into silence. On September 9, police arrested Abdul Muktadir Manu, a local BNP politician, for “his suspected collusion” in a Facebook post by his London-based brother that was critical of Prime Minister Sheikh Hasina Wazed. Manu was arrested under Criminal Procedure Code Section 54, a law criticized as a loophole to enable torture because it authorizes the police to arrest people without a warrant and detain them for up to 15 days without allowing them to be represented by a lawyer.

   Bangladesh authorities appear poised to further extend the reach of their repression beyond the country’s borders. In a parliamentary foreign affairs standing committee meeting on September 13, Foreign Minister Abul Kalam Abdul Momen presented a list of Bangladeshis living abroad identified as committing “anti-state” activities and called on embassies to bring the individuals to justice.

   [1] Human Rights Watch, 2022, ‘Bangladesh, Crackdown on Political Opposition’, 10 October.

2. In September 2022 clashes between Awami League and BNP supporters were reported in Mirpur:

   Local media sources indicate AL supporters attacked a BNP rally denouncing rising fuel prices in Mirpur's Section 6. Fighting between the two groups broke out, with clashes also being reported in Section 2. Police fired tear gas to disperse the violent crowds. Several people have been injured.[2]

   [2] CRISIS 24, 2022, ‘BANGLADESH: CLASHES BETWEEN RIVAL POLITICAL GROUPS REPORTED IN MIRPUR AREA OF DHAKA SEPT. 15’, 15 SEPTEMBER. SEE ALSO THE DALIY STAR’, 2022, ‘BNP, AL MEN CLASH IN DHAKA’S MIRPUR’, 15 SEPTEMBER.

3. On 20 September 2022 it was reported that a judge had rejected the BNP’s plea to charge the Awami League members over the Mirpur clashes. The report also stated:

   According to the complaint, nearly 500 Awami League, Jubo League and Chhatra League leaders and activists, including Nikhil, Kamal and Ellias, carried out an attack on the BNP rally, leaving several party leaders and activists injured. [3]

   [3] BDNews24, 2022’ Judge rejects BNP plea to sue 20 leaders of AL, affiliates over Mirpur clashes, 20 September.

4. The Dhaka Tribune reported that over 100 BNP supporters were injured in the 15 September clashes in Mirpur.[4]

   [4] DHAKA TRIBUNE, 2022, ‘OVER 100 INJURED IN AL-BNP CLASH IN MIRPUR’, 15 SEPTEMBER.

5. There are further reports in December 2022 of an intensified crackdown on the BNP in Bangladesh:

   Two top leaders of Bangladesh’s main opposition party have been arrested amid a violent crackdown on government opponents during which at least seven people have been shot dead and thousands arrested. Over recent weeks, Sheikh Hasina’s government has launched a repressive campaign against the opposition Bangladesh Nationalist party (BNP), which has been holding rallies calling for her resignation.

   … [BNP leader] Wahiduzzaman said seven people had been shot dead and at least 6,000 BNP supporters had been arrested by authorities in recent weeks as the ruling party tried to contain a groundswell of opposition in the face of growing discontent over the economy and alleged corruption and abuses. …  Amnesty International’s regional director for South Asia, said in recent weeks there had been “an alarming escalation of repression by the authorities”.[5]

   Kamarul Arefin

   [5] THE GUARDIAN, 2022, “TWO BANGLADESHI OPPOSITION LEADERS ARRESTED IN GOVERNMENT CRACKDOWN”, 10 DECEMBER.

6. Available country information confirms that Kamarul Arefin is an Awami League leader in Mirpur and Kushtia District.  In 2006, while the BNP were in power, he was arrested and briefly detained during Awami League protests in the district.[6]  In June 2017 Kamurul Arefin was reportedly involved in a clash with a rival Awami League faction in which his men attacked and opened fire on the rival group, injuring several and killing one.[7]  In May 2022 he reportedly holds the position of Awami League Chairman of Kushtia District.

   Md Abdul Haque

   [6] The Daily Star, 2006, ‘AL besieges Mirpur thana whole night for 'safety' of two party men’, 10 December.

   [7] The Daily Star, 2017, ‘Activist Shot Dead in Kushtia Infighting’, 18 June.

7. Available country information confirms that Abdul Haque was a BNP politician and former member of parliament in the Kushtia district.[8]  In 2017 he and about ten others BNP members were reportedly injured in an attack upon the BNP office by members of the Awami League’s youth wing, the Jubo League.[9]  At the time Abdul Haque was described as the ‘President of the Mirpur branch’ of the BNP.

   Sheikh Hasina’s April 2018 Visit to Australia

   [8] See e.g. The Daily Star, 2006, ‘Murder of 3 Kushtia BCL Leaders’, 1 April.

   [9] Bangla News, 2017, ‘Ex BNP Lawmaker Attacked in Kushtia’, 19 July.

8. Available country information confirms that Bangladesh Prime Minister Sheikh Hasina visited Sydney Australia for three days in 2018 between 27 and 29 April and that during the visit she attended an event at the Sofitel Hotel.[10]  Other news reports confirm that there were public protests at Darling Harbour and the Sofitel Hotel in Sydney during Sheikh Hasina’s visit here.[11]  The reports contain photographs of the protests.

   [10] SEE E.G. H.E. SHEIKH HASINA, HON'BLE PRIME MINISTER OF BANGLADESH ATTENDED "GLOBAL SUMMIT OF WOMEN" IN SYDNEY, AUSTRALIA FROM 27-29 APRIL 2018 | BANGLADESH HIGH COMMISSION CANBERRA (BHCANBERRA.COM); DHAKA TRIBUNE, 2018, ‘PM SHEIKH HASINA LEAVES SYDNEY FOR HOME’, 29 APRIL.

   [11] SEE E.G. THE NEWS, 2018, ‘PROTEST IN SYDNEY AGAINST HASINA WAJID’, 1 MAY AND THE AUSTRALIAN MUSLIM TIMES, 2018, ‘BEWARE OF DESPOT, SYDNEY PROTESTS AGAINST SHEIKH HASINA’, 2 MAY.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant submitted a copy of his Bangladesh Birth Certificate. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Bangladesh. The Tribunal assesses the applicant’s claims against Bangladesh as his country of nationality and receiving country.

   Credibility

10. The applicant claims to fear harm in Bangladesh because of his brother’s active involvement with the BNP, the applicant’s close association with his brother’s political activities in Bangladesh, false cases lodged against the applicant and his brother, and due to the applicant’s BNP involvement and protest activity in Australia.

11. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

12. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

    The applicant’s brother’s BNP involvement in Bangladesh

13. The applicant has consistently maintained since arrival in Australia that his brother was active with the BNP in Bangladesh and held a senior local position.  He described his brother as having been active in meetings and protests and in communication with local BNP leaders.  There is little to raise doubt regarding the applicant’s claim his brother was actively involved at a local senior level in the BNP and the Tribunal accepts he was.

14. The applicant spoke of the problems for his brother starting in about 2007 and escalating in 2012, and of his brother being in hiding in Dhaka but still politically active. The source of his brother’s problems seems to be the inclusion of his name in warrants for serious criminal offences committed against Awami League members and supporters and police.  The applicant was able to readily describe an incident in about 2006 or 2007 in which BNP men accompanying the applicant’s brother during a BNP demonstration fired upon Awami League supporters who attacked them, killing some of the Awami League supporters. The applicant’s brother was then included amongst those charged with the killing of the Awami League supporters.  The applicant presented his evidence about this incident quite spontaneously and without hesitation.  He simply but clearly described the event and his brother’s involvement. The available country information also supports the applicant’s claim that political street protests can turn into violent clashes between supporters of the two main political parties in Bangladesh, and that the police and other authorities do at times cooperate with the ruling party to file criminal cases against opposition party members.  The Tribunal therefore gives the applicant the benefit of the doubt that his brother was actively involved with the BNP at a local senior level, and that he engaged in public protest activities with the BNP which gave rise to criminal complaints and investigations in which he was identified as an accused.

15. The applicant’s evidence about the whereabouts of his brother in Bangladesh was quite confused.  During interviews in both February 2013 and March 2016 he spoke of his brother still being in hiding in Dhaka at those times. However he has also stated at other times that his brother was in [Country 3], or that he disappeared in about 2012 while trying to travel to [Country 3].  The differences in the applicant’s versions are substantial. If the applicant’s brother had tried to flee to [Country 3] in 2012 and disappeared at this time there is no apparent reason for the applicant to have stated twice that he was in hiding in Dhaka, past this date.  The Tribunal therefore does not accept that the applicant’s brother disappeared in about 2012 while trying to flee to [Country 3].

    The applicant’s association with his brother’s BNP activities in Bangladesh

16. The applicant has maintained that he was not interested in politics while in Bangladesh; that he was not involved in politics while in Bangladesh; and that he was not a member of the BNP while in Bangladesh.  The Tribunal accepts the applicant’s evidence on these points.

17. In his first departmental interview the applicant raised that although he was not interested or involved in politics in Bangladesh he would transport and accompany his brother to his political activities.  The applicant stated such things were common in Bangladesh political culture and that the applicant’s presence added some security and status to his brother while engaging in the often volatile Bangladesh political environment.  Since the first interview the applicant has presented consistent evidence regarding the nature of his association with his brother’s political activities.  He did not try to exaggerate his own activity and always denied any political interest or involvement on his own part.  In the Tribunal’s view it is plausible that the applicant’s brother would rely upon the applicant to bolster both his security and profile by having his brother transport and shadow him in his political activity.

18. The applicant was also able to accurately describe the BNP and Awami League leaders in his area during his claimed time accompanying his brother.  This indicates he had some level of exposure to the local political environment at the time.

19. The Tribunal therefore accepts that the applicant did transport and accompany his brother during his brother’s political activity with the BNP for two or three years, prior to the applicant’s first departure from Bangladesh in 2007.

20. The applicant gave evidence that he himself did not experience any problems in Bangladesh upon his return to Bangladesh in 2009, until 2012.  He stated that in 2012 things became worse in Bangladesh and the authorities started harassing his family to try to arrest his brother.  According to the 2013 Human Rights Watch report on Bangladesh, human rights violations did increase in 2012:

    Bangladesh’s overall human rights situation worsened in 2012, as the government narrowed political and civil society space, continued to shield abusive security forces from accountability, and flatly ignored calls by Human Rights Watch to reform laws and procedures in flawed war crimes and mutiny trials. Civil society and human rights defenders reported increased governmental pressure and monitoring. The security forces’ practice of disguising extrajudicial killings as “crossfire” killings or legitimate confrontations between alleged criminals and security forces continued, as did disappearances of opposition members and political activists.

21. The Tribunal therefore accepts it is possible that the authorities’ adverse interest in BNP activists such as the applicant’s brother intensified in 2012.  Further, given the applicant was generally in his brother’s presence while his brother engaged in BNP activity it is plausible that the authorities would assume the applicant shared a political connection with his brother which would assist them to apprehend his brother.

22. The Tribunal therefore accepts that the authorities were harassing and threatening to the applicant in late 2012 in their efforts to locate and arrest the applicant’s brother.

    False Case against the applicant in Bangladesh

23. The applicant submitted documents he states represent a false case lodged against him after his departure from Bangladesh in 2012. The document he submitted is a photocopy and contains almost identical wording to a document he submitted in relation to charges against his brother in a much earlier incident. The documents therefore lack authenticity and the Tribunal gives them no weight.

24. The applicant claimed that the authorities took such action against him well after his departure from Bangladesh but was unable to explain their motivation to do so apart from merely his departure.  It is difficult to understand why the authorities would do this or what they would achieve.  Nor is there any indication that the authorities have taken any further action against the applicant in relation to the false case allegation. Further, in describing how the false case arose and why he was included the applicant was highly vague.

25. In view of these difficulties the Tribunal does not accept that a false case was lodged against the applicant after he departed Bangladesh.

    The applicant’s BNP political and protest activity in Australia

26. In the course of his review application the applicant introduced a new claim that he joined the BNP in Australia and has participated in political activities with the BNP Australia branch here. 

27. In a letter written by a BNP Australia representative it is stated that the applicant became active with the BNP here in June 2016.  However in his hearing the applicant stated he joined in 2015. 

28. The letter written by the BNP Australia representative contains a significant amount of information which is directly contradicted by the applicant himself.  For example it describes the applicant as an ‘opposition activist’ in Bangladesh who participated with his family in anti-government rallies and demonstrations there, a future BNP leader, as well as someone with a vast knowledge of BNP ideologies and activities from various stages of his political career.  The letter also describes the applicant as an Executive Member of the BNP Youth Wing in Australia whereas the applicant initially clearly stated and confirmed he was no more than an ordinary member, without a role, of BNP Australia. When the description in the letter was put to him he stated he had forgotten he was an Executive Member of the BNP Youth Wing.  The Tribunal does not accept he would forget such a thing and does not accept he is the Executive Member of the BNP Youth Wing in Australia.  Further, given all the clearly incorrect substantive information in the letter the Tribunal gives it no weight other than to confirm that the applicant has joined BNP Australia and had some activity with them while here.

29. When asked why he had not mentioned joining BNP Australia during his most recent Protection visa application he responded that his family told him it would cause trouble for them in Bangladesh if he became involved in politics in Australia and this was publicised.  This reason makes little sense.  If he was politically active with BNP Australia from 2015 or 2016 then this activity could be publicised irrespective of whether or not he mentioned it in his Protection visa application.  Declaring such involvement in his visa application would not have caused his political activity to become known.  The applicant also stated that he forgot to mention it to the delegate during his interview in 2021 and it may be that this is a more plausible explanation given the applicant’s odd lack of vigour in providing claims and information about himself.

1. While the applicant’s failure to reveal his BNP Australia involvement prior to his review application raises questions about the veracity of this claim, he has provided some persuasive oral and photographic evidence that he genuinely has been involved with the BNP in Australia.

2. The photographs submitted by the applicant do show him participating in the April 2018 protests against Sheikh Hasina’s visit to Australia at the time. The applicant was able to describe the protests and his involvement in them.  The Tribunal therefore accepts that the applicant did participate in two public protests against Sheikh Hasina’s visit to Sydney in April 2018.

3. Further, the applicant was able to reasonably describe the BNP meetings and other demonstrations he attended here.  He confirmed he had no particular role at the meetings and just attended them.

4. The applicant demonstrated only a very basic knowledge of the BNP.  However according to the country information this is not unusual amongst BNP supporters who commonly have knowledge of and loyalty to the party leaders and personalities rather than the policies and ideologies.

5. Based on the above the Tribunal accepts that the applicant has joined BNP Australia and had low-level involvement with them, including participating in protests and demonstrations and attending meetings, from some time prior to April 2018.

6. It may be that the applicant has joined BNP Australia simply for the purpose of strengthening his Protection visa claims.  However if this was the case then he would likely have declared his involvement in his 2020 Protection visa application and during his 2021 Departmental interview.  That he didn’t do so lends substantial support to the applicant’s assertions that he joined the BNP in Australia and became active with them because he became more interested in the BNP while here due to his brother’s past. Further, he has maintained his involvement with BNP Australia over some years here and was able to reasonably describe a genuine interest in doing so.  While strengthening his Protection visa claims may have partly motivated the applicant the Tribunal is satisfied that he has joined the BNP Australia and been active with them for substantive and bona fide reasons additional to this.

   Fear of Harm in Bangladesh

7. The Tribunal has accepted that the applicant’s brother was a senior local BNP activist in Bangladesh who is an accused in criminal cases lodged against him arising from his involvement in local BNP protests and demonstrations.  The Tribunal has also accepted that the applicant accompanied his brother in his political activities despite having no political interest or involvement himself, for a period of two or three years, prior to the applicant’s departure from Bangladesh in 2007.  The Tribunal also accepts that the applicant was harassed and threatened by the authorities in late 2012 in their attempts to locate and apprehend the applicant’s brother.  The Tribunal also accepts that the applicant has joined BNP Australia and participated in BNP protests and meetings here including the April 2018 public protests against Sheikh Hasina’s visit to Australia.

8. Recent country information highlights that violent political clashes are occurring in Bangladesh, including in the applicant’s home region, Mirpur.  These have resulted in deaths and injuries of BNP supporters.  The reports describe Awami League supporters as the attackers with the police and the judiciary refusing to act.

9. If the applicant continues his low-level BNP involvement and protest activity in Bangladesh, at the level he has adopted in Australia, then this would be enough to put him at risk of physical violence from government supporters, particularly as the political environment becomes more volatile leading up to the January 2024 election.   The available country information highlights human rights concerns about the growing levels of violence and suppression against the BNP and its supporters in Bangladesh.  In such an environment the risk of serious harm to low-level BNP supporters who engage in public demonstrations cannot be discounted as remote.  The Tribunal is therefore satisfied there is a real chance the applicant would be seriously physically harmed as a BNP supporter engaging in street demonstrations in Bangladesh, within the reasonably foreseeable future.  

10. DFAT’s report indicates that the applicant’s actions in protesting publicly in Australia against Sheikh Hasina and on other occasions, would be viewed adversely in Bangladesh given that activity involving anti-government messaging has resulted in arrests and the government’s reported sensitivity about the public actions of the Bangladesh diaspora.

11. As someone who has a past, albeit brief, adverse record with the authorities under suspicion of involvement in his brother’s BNP political activities; whose brother has a profile as a local BNP senior member; and who has engaged in BNP and anti-government activity in Australia, the Tribunal considers there is a real chance the applicant would be taken into custody for investigation on return to Bangladesh.  DFAT’s report about the prevalent use of torture by the authorities of people in custody indicates the likelihood that someone such as the applicant could face torture while in custody.

12. Although the applicant is not a high-profile BNP activist he does have a political profile which exposes him to a real possibility of arrest, investigation and torture on return to Bangladesh. The Tribunal considers the chance of this occurring may not be high but it is not remote.  The Tribunal is therefore satisfied, based upon the information before it, that there is a real chance the applicant will be arrested, taken into custody and tortured by the authorities on return to Bangladesh because of his adverse political profile.

13. The Tribunal is satisfied that the essential and significant reason for the serious harm the applicant faces in Bangladesh is his political opinion. The Tribunal is also satisfied that the harm is a result of systematic and discriminatory conduct in that it will be done to the applicant intentionally and selectively.  As the state is the source of harm the Tribunal is satisfied that the threat to the applicant exists in all areas of Bangladesh.

14. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in the Bangladesh as defined by s.5J of the Act.

    Section 36(3)

15. There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.

    Conclusion

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

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    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.

    …