1904655 (Refugee)

[2024] AATA 1037

1904655 (Refugee) [2024] AATA 1037 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddique

CASE NUMBER:  2110841 and 1904655

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Lambie

DATE:31 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal:

·Affirms the decision not to grant the applicant a protection visa in the matter 1904655 (Safe Haven Enterprise visa application made on 28 February 2019); and

·Sets aside the decision in matter 2110841 (Safe Haven Enterprise visa application made on 19 August 2021) and substitutes it with a decision that the visa application was not valid.

Statement made on 31 January 2024 at 2:34pm

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh – political opinion – a supporter of the Bangladesh Nationalist Party – fear harm from the supporters of AL – not satisfied that the applicant has, or had any political profile sufficient to attract community attention – fear of persecution is not well-founded – applicant does not have a profile –credibility concerns – second visa application is invalid – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 91, 424, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] February 2013.

4. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an 'unauthorised maritime arrival' (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a 'fast track applicant' (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

5. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 21 May 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

6. The applicant applied for a Safe Haven Enterprise visa on 19 May 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on11 October 2020 (the second visa application). However, the applicant's first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister's s 48B determination.

7. The first application for a Safe Haven Enterprise visa on 28 May 2015 was refused by the delegate on 21 April 2017. The delegate refused to grant this visa on the basis that the applicant is not a person to whom Australia has protection obligations. An application for review of that decision was made on 28 February 2019.

8. The Department made a decision to refuse the Safe Enterprise Visa on 21 April 2017. At the time the applicant was considered under Australian law to be an ‘unauthorised maritime arrival’ which gave him a fast track right to review with the Independent Assessment Authority (IAA). The IAA found that the applicant was not a non-fast track DEP and the IAA affirmed the refusal decision on 11 December 2017.

9. On 6 August 2018, the Full Federal Court handed down the judgment in DBB16 v MIBP (2018) 260 FCR 447. As a result, the applicant was determined not to be an ‘unauthorised maritime arrival’ due to his manner of arrival, and his SHEV application and IAA refusal decision were therefore invalid.

10. On 22 February 2019 the applicant was renotified of the refusal decision and advised of his review rights with the Tribunal. An application for review of that decision was made on 28 February 2019.

11. The second visa application was refused by a delegate on 6 August 2021. An application for review of that decision was made on 19 August 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate's refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

12. The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments.

13. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

20. The applicant is a [age]-year-old national of Bangladesh.

21. The applicant claims he is a Muslim and a supporter of the Bangladesh Nationalist Party (BNP).

22. He claims that his cousin, who is a supporter of the Awami League (AL) arranged for its supporters to assault him in 2010. He claims they also assaulted his father and brothers.

23. He claims that he and his father and brothers reported the assault to the local chairman who issued a warning to the attackers. The attackers then left the family alone for about six months.

24. He claims that, after six months, the attackers resumed their attacks, attacking him almost every month either verbally or physically until he left Bangladesh at the end of 2011.

25. He claims that these attacks forced him to leave Bangladesh.

26. He claims to fear harm from the supporters of AL upon his return to Bangladesh

    Evidence presented prior to the hearing

27. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following materials and documents:

    a.Additional claims submitted via the applicant’s case manager on 23 April 2013.

    b.Statutory declaration of the applicant dated 5 May 2016

    c.Copies of the applicant’s identity documents in Bengali, translated by the Department’s interpreter.

    The Department’s files also contain the applicant’s protection visa application and records of interviews with the applicant.

28. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.Immigration Status Identification Card

    c.A medical certificate and hospital discharge letter dated 10 December 2016.

    d.A translated police complaint dated 31 January 2013.

    Country of reference / receiving country

29. The applicant claims to be a citizen of Bangladesh.  Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

30. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing

31. The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments at a videoconference hearing. 

32. The applicant was represented in relation to the review.  His representative attended the hearing.

33. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection Visa, the Tribunal discussed with the applicant that to be granted a Protection Visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

34. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Bangladesh.  This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Bangladesh.  The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

35. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Bangladesh.

36. The Tribunal discussed his claims as summarised in his protection visa application, written claims and the delegate’s decision.  He confirmed that they were and that he did not need to change them.

37. The Tribunal asked if he could tell it about the circumstances in which he decided to come to Australia. He said that the political circumstances in Bangladesh were not good and that he wished to settle in a country where he could feel safe.

38. The Tribunal asked if he could tell it something of his background. He told the Tribunal that he was born in [year], one of four brothers and that he was educated to [a grade], leaving school in 2005. His father was a farmer, working land owned by the applicant’s uncle. After he left school, he worked in a [shop] owned by a different paternal uncle.  He was married in 2011 and continued to live with his family and work in the grocery shop.

39. The applicant told the Tribunal that, in about January 2012, he left Bangladesh for [Country 1], working as a general labourer in a [factory] for about a year. The Tribunal asked what prompted him to move to [Country 1]. He said that he left Bangladesh because the environment was extremely unsafe. He said there were killings, kidnappings, disappearances, and that there was no justice or law enforcement. The Tribunal asked if he had left because of his perception that it was generally unsafe.  He said that that was correct, and that because of that he was in fear of his life. The Tribunal reminded him that he had made some specific claims to the Department and asked if he was still making those claims.

40. The applicant told the Tribunal that, when he finished school and started working, he found that his work environment was unsafe for him. He said that his neighbours attacked and beat him and were constantly arguing with him in the shop and on the street. He said that his cousins also frequently argued with him in the shop.  He said that they followed the Awami League, while he followed the BNP. He said that, because of the continual conflict, he felt that he was not safe. The Tribunal asked what he could tell it about the Awami League. He said that Bangladesh is a Muslim-dominated country, but that Muslim people are the subject of torture, disappearances and beating, and sometimes the death penalty. He said that there is no food for Muslims, and there are no jobs or medical treatment. He said that the Awami League is responsible for this.

41. The Tribunal asked if it was his claim to have been a member or supporter of the BNP. He said that was correct. The Tribunal asked if he could explain why he supported the BNP. He said the BNP is more supportive of Islam, they want to establish peace in a country, provide education to the common people, and support technology in Bangladesh. He said that, in these respects the BNP is very different to the Awami League. The Tribunal asked if he had ever been a member of the BNP. He said that he was a supporter and that his father used to be a member. The Tribunal asked if he was involved in any activities as a supporter of the BNP.  He said that he joined meetings and rallies and was supportive of the party, and that this was why the Awami League wanted to abuse him.

42. The Tribunal asked if his local government representatives were Awami League or BNP. He said most of them were Awami League, but they were just appointed because there are no elections. The Tribunal asked if he was saying that there were no elections while he was in Bangladesh. He said there were sometimes elections but they were unfair. The Tribunal asked if he participated in any election campaigns. He said that he would be cooperative and tell people where to vote, when to vote, and to vote for the BNP. The Tribunal put it to him that he had previously said that he had never voted himself. He said that was correct. The Tribunal asked why not. He said that he had never voted in his life but that he did not know why. The Tribunal said that it was finding it difficult to square this with his claims to be an enthusiastic supporter of the BNP. He said that it was only since coming to Australia that he realised how important it was to exercise the right to vote.

43. The Tribunal asked if it had previously been his evidence that he had been injured by reason of his political allegiance. He said that he had said that, and that it was true. He said that when he was working in the shop, AL supporters used to come and attack the shop and threaten him. He said that they did this because he was a BNP supporter and they wanted him to join the Awami League. The Tribunal asked if he could describe how he came to be injured. He said that he was injured in his arms, legs and back, as he had previously claimed. He said that he was hospitalised in 2016 and he had provided a medical certificate to the Tribunal. The Tribunal asked what injuries he had sustained. He said that, as he had previously said, he received injuries to his arms, neck and back. The Tribunal asked if he had sustained any broken bones. He said that he had suffered a broken wrist and also injuries to his leg. The Tribunal asked if he could describe the leg injuries. He said he was beaten with a metal rod but that the leg recovered after treatment. The Tribunal asked if he had ever obtained a medical report in Australia to substantiate these claims. He said he had not, in relation to these injuries, but that he had taken care not to undertake any work that might aggravate his wrist injury. The Tribunal asked if it was the case that he did not have any independent medical evidence. He said he did not.

44. The Tribunal asked if any other member of his family had been attacked or threatened by reason of his perceived affiliation with the BNP. He said that his younger brother had been attacked because he also supported the BNP and that he had been beaten. The Tribunal asked when this had happened. He said this was in about 2010 or 2011. The Tribunal asked if any member of his family had been attacked during any of the election campaigns. He said they had not. The Tribunal asked if anyone in Bangladesh had been making inquiries of him since he had been in Australia. The Tribunal asked if he could provide details. He said that Awami League supporters had contacted him by telephone, and continued to do so, asking where he was and telling him that he would be killed if he returned to Bangladesh. The Tribunal asked if he had ever made this claim before. He said that no one had ever asked him about this. The Tribunal asked if it had never occurred to him that it might be relevant. He maintained that no one had asked him about it. The Tribunal reminded him that it was his responsibility to make his claims, and that to make this claim for the first time after many years may raise doubts about its credibility. He said he was not lying. The Tribunal asked how these people might have obtained his telephone number. He said they were his neighbours in Bangladesh. The Tribunal asked how they would obtain his Australian telephone number. He said that they had not communicated with him directly, but they had conveyed the threats to his friends, who had passed them on to him with the warning that he should not return to Bangladesh. He said he had also received emails. The Tribunal put it to him that he had just said that he had received telephone calls from Awami League supporters. He said that he had meant to say that he had received these threats second-hand. The Tribunal asked if he had copies of emails or text messages to support this claim. He said that this information was only received by oral communication on the phone. The Tribunal asked if he had details of the dates upon which he received these calls and who he had spoken to. He said he had not kept a record. The Tribunal asked why he would not have mentioned this in his departmental interview in 2021. He said he had not been asked such questions in the interview.

1. The Tribunal took the applicant to the medical certificate and the police complaint (see paragraph 29). It ascertained that these documents did not pertain to the applicant and were on the file for unknown reasons.

2. The Tribunal asked the applicant if his wife, children, or other relations had been subjected to threats or violence since he arrived in Australia. He said they had not but that they visited their home village only intermittently. The Tribunal asked if it was to understand that, should he also move to a different village in Bangladesh that he would be safe. He said that he would not be safe anywhere in Bangladesh and that this was why he had come to Australia.

3. By letter dated 24 November 2023, enclosing a copy of transcript of the applicant’s interview with the Department of 27 July 2021, the Tribunal wrote to the applicant, pursuant to s 424A of the Act:

   During the hearing of this matter on 27 July 2023, you gave evidence that:

   ·you had received threats from Awami league supporters in Bangladesh, or had such threats communicated to you by others, since you arrived in Australia; and

   ·you had sustained serious injuries, including a broken wrist, as a result of assaults committed on you by Awami league supporters in about 2010 or 2011.

   The Tribunal has now received a transcript of your interview with the Department of home affairs on 27 July 2021, in which you provided answers that may be inconsistent with the evidence you gave to the Tribunal.

   In particular, your attention is drawn to the following:

   ·at pages 21 and 22 of the transcript, when you were asked why you would have problems if you returned to Bangladesh, you did not mention receiving any threats while you were in Australia; and

   ·at pages 16 and 17 of the transcript, you were asked on two occasions whether you are ever injured and replied “not much, because I received 2 to 3 punches but then I left running,” and “not me, but my brother got injured many time.”

   This information is relevant to the review because it they may form a reasonable part of a reason for affirming the decision under review.

   If we rely on this information in making a decision, we may find that you have provided inconsistent evidence to the Tribunal regarding your protection claims and affirm the decision under review you are invited to give comments on or respond to the above information in writing.

   Your response should be received by 8 December 2023…

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.

4. The applicant did not respond to the letter.

   Assessment of claims and evidence, and findings

5. 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, the fact 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, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).

6. 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.

7. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

8. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

   [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

9. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

   [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

10. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

11. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

12. The Tribunal has had regard to the following country information relevant to the applicant’s claims.

13. The Department of Foreign Affairs and Trade’s most recent country information report on Bangladesh reports the following on political opinion (actual or imputed):

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

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

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

    DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.

    The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.[3]

    [3] Department of Foreign Affairs and Trade, Country Information Report:  Bangladesh (30 November 2022), pp 21-22

14. Specific to the Bangladeshi Nationalist Party, the report states:

    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.[4]

    [4] Ibid, pp 22-23

15. The Tribunal considers the applicant’s evidence in support of its claims to have been vague and inconsistent. His evidence in respect of the political environment did not indicate the level of interest and involvement in the BNP that he claims to have had. He did not mention the political setting for the rallies and meetings in which he claimed to have participated (for example, national, district or municipal) and the Tribunal, despite seeking the applicant’s explanation, cannot reconcile his claimed political activism with his failure ever to have voted.

16. His claims to have been assaulted by his cousin (or cousins) and neighbours by reason of his political opinion, which are central to his claims, are very difficult to credit. In his statutory declaration of 5 May 2016, he described being assaulted by AL (named by him as Non-Islamic Party) supporters in 2010, with his father and brother also being victims of the same attack. He has since made no attempt to narrow down the date, despite claiming to have a hospital report which has not been produced[5]. He did not name any of his assailants, despite describing them as relatives and neighbours. At the hearing, the date was broadened to sometime in 2010 or 2011. He did not mention his father or brother also being victims. He has not produced any medical evidence to support his claims of injuries. As noted in paragraph 47 above, the applicant made inconsistent claims in his interview with the Department in 2021. These inconsistencies were put to him in writing but he did not respond. In all of the circumstances, the Tribunal cannot be satisfied that the applicant was subjected to the violence he claimed in his statutory declaration of 2016 or historical evidence to the Tribunal, or at all.

    [5] At the hearing, he referred to a 2016 hospital discharge document, which cannot be correct and which the Tribunal has chosen to disregard.

17. The applicant claimed at the hearing that he had been subjected to continuing threats by AL supporters while he has been Australia. He has not previously made such a claim. His evidence in respect of this varied considerably under even cursory questioning by the Tribunal: he initially claimed to have been called on the telephone directly by these people and maintained that claim until the Tribunal asked how they obtained his Australian telephone number. He then claimed that the threats had been made to others who had passed them on to him, including by email. When asked if he was able to produce emails, text messages or social media exchanges, he responded that all such communications were orally and that he had kept no record whatsoever. He did not name the persons who had passed threats on to him. As noted in paragraph 47, he was invited in writing to address his failure to raise this matter when asked in his departmental interview in 2021 but did not respond.

18. While the Tribunal accepts that the political environment in Bangladesh is heated, and that violence is common, especially around elections, there is very little in the applicant’s evidence in which the Tribunal has confidence. It is not satisfied that the applicant has, or had at any time, any political profile sufficient to attract community attention. It is not satisfied that the applicant, or other members of his family, were subjected to violent physical assault as he variously claimed, or at all. It is not satisfied that he is a person of continuing interest to partisan AL supporters in Bangladesh who have threatened to do him harm if he returns. In respect of the latter claim, the Tribunal considers that it is of recent invention and is satisfied that there is no evidence for it.

19. The applicant claimed at the hearing that government services, healthcare, and state protection would be denied him should he return to Bangladesh by reason of his actual or imputed political opinion, or by reason of his being an ordinary Muslim from a rural area. There is no country information or other evidence to support that claim, there being no suggestion that he holds any type of political profile such as to attract the attention of the authorities, or of the relevant decision-making agencies.

    Cumulative claims

20. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his actual or imputed political opinion, or any other reason if he returns to Bangladesh now or in the reasonably foreseeable future.  Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Bangladesh. Accordingly, the Tribunal finds he she does not satisfy the criterion in s 36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?

21. The Tribunal has considered the applicant’s claims under complementary protection. These were vaguely advanced by the applicant and considered in paragraph 63 above.

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

   Conclusion: Refugee Criterion

2. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s 5J of the Act and therefore he is not a refugee within the meaning of s 5H of the Act.

   Conclusion: Complementary Protection

3. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

   Overall conclusion:

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a protection visa.

   James Lambie
   Senior 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.

   …