1904657 (Refugee)

[2023] AATA 2559

1904657 (Refugee) [2023] AATA 2559 (26 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATIONS FOR REVIEW:               Applications for review of two decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant, respectively, a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) and a Protection visa subclass XD-785 (‘TPV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBERS:  1904657 & 2206946

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Kate Chapple

DATE:26 May 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal:

remitsa.    SHEV application the matter of a 12 December 2016 made on direction that the applicant satisfies s 36(2)(a) (and bearing Tribunal review case number 1904657) with the of the Act; and

sets asideb.    TPV application the delegate’s decision to refuse the applicant a 7 October 2020made on      substitutes (and bearing Tribunal case number 2206946) and visa application was not valid it with a decision that the .

Statement made on 26 May 2023 at 9:30am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – validity of second visa application – section 48A bar not lifted – invalid visa application – first visa application reviewable – political opinion – applicant’s father held a high profile positionwith the BNP – a known BNP supporter and active participant in the local union – subject of outstanding charges – no effective protection measures available to the applicant in Bangladesh – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 36, 48A, 65, 91K

Migration Regulations 1994, r 1.12, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

BACKGROUND

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 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] January 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of 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.

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

5. The applicant applied for a Safe Haven Enterprise visa on 12 December 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 Temporary Protection visa on 7 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.

6. The first visa application was refused by the delegate on 30 May 2017. An application for review of that decision was made on 28 February 2019.

7. The second visa application was refused by a delegate on 29 April 2022. An application for review of that decision was made on 13 May 2022. 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.

8. This decision record is a statement of the Tribunal’s reasons and decisions in relation to the reviews bearing case numbers 1904567 and 2206946.

   EVIDENCE BEFORE THE TRIBUNAL

   Protection visa applications and related material

9. The first visa application.

10. Applicant’s supporting statutory declaration dated 19 November 2016 and various translated court documents, news reports and letters of support.

11. The second visa application.

12. Other Departmental records:

    12.1.Decision records.

    12.2.Interview audio files.

    12.3.Case files.

    12.4.Internal records relating to the applicant.

    Applications for review

13. The Tribunal wrote to the representative inviting the applicant to attend a combined hearing of the reviews of both the first visa application and the second visa application on 24 February 2023 and to provide pre-hearing submissions and the documents the applicant intended to rely on in his applications for review.

14. Prior to the hearing, the representative provided to the Tribunal confirmation that the applicant intended to participate in the hearing with the assistance of the representative, however no submissions or documents were received by the Tribunal.

    Initial hearing

15. The applicant appeared before the Tribunal at a hearing conducted in person on 24 February 2023, with the assistance of an interpreter (via telephone) in the Bengali and English languages. The applicant’s representative joined the hearing via telephone.

16. The Tribunal flagged to the applicant the documents he would be asked about during the hearing, and received the applicant’s confirmation that he is familiar with those documents.

17. The following is a summary of the applicant’s evidence:

    17.1.The applicant, a Bangladeshi man aged [age], was born in [named] village, Shariatpur district, Bangladesh in [year]. He grew up with his parents, older brother and sister, and did not have a partner or children while in Bangladesh. His parents and sister have since died, and he is no longer in contact with his brother. His father was killed [in] February 2017 and his mother died [in] July 2022.

    17.2.The applicant’s parents worked farming land they owned in the village where they lived. His father was a politician in the BNP. As a family, they practised the Islamic faith and attended prayers at the village mosque. His father was not a faith leader. There was one mosque and one imam in the village, and a mosque committee that organised prayers; the committee did not administer sharia law or issue fatwa. After the applicant completed all of his schooling in 2004, he worked with his father in the village and got involved in politics. The applicant’s brother and mother were BNP supporters, but not actively involved in the party in the way he and his father were.

    17.3.The applicant’s father and forefathers have been BNP supporters for generations. He thinks his father was appointed [Position 1] of the [Union 1] in around 2000 and served until 2004. His father organised party meetings and rallies, celebrations, and commemorations for those who fought for their country. The opposing party, the AL, were very powerful in the village and caused a lot of pressure for his father, so he chose not to continue in the [Position 1] role. His father however remained an active BNP member and supporter and helped the person who took over the role, [name redacted].

    17.4.The applicant joined the youth wing of the BNP, Jubo Dol, in 2000. He says you pay fees and have to be aged 18 to join Jubo Dol, but the age rule isn’t strongly enforced, so he was able to join at a much younger age. He became a BNP member in 2003 or [2004]. He doesn’t have any party membership documents or receipts for membership fees because his parents and sister have died and it was many years ago.

    17.5.The Tribunal asked the applicant about the translated letter dated 5 March 2013 from a person named as [Mr A] of the BNP. The applicant said his father sent the letter to him when he was in detention. The Tribunal asked about the discrepancy regarding the date his father was appointed as [Position 1], noting the letter states 2009 whereas the applicant’s oral evidence and 2016 statutory declaration state that he served from 2000 to 2004. The applicant said he thinks he is right about the dates, but he doesn’t remember much. The Tribunal asked the applicant what connection he had with [Mr A] given that his letter states that the applicant is known to him. The applicant said [Mr A] was the BNP leader above his father, and he didn’t know him, however he may have written the letter because of his connection with his father. The applicant told the Tribunal that if he could see the letter, he may be able to say more.

18. At that point in the hearing, the Tribunal asked the representative if the applicant had copies of those documents flagged for questioning at the start of the hearing because if he did not it would be difficult for him to answer questions. The Tribunal granted a 15 minute adjournment to allow the applicant an opportunity to speak with the representative on the telephone. The representative requested an adjournment of the hearing to allow the applicant sufficient time to prepare for questions about the flagged documents.

19. The Tribunal granted a one week adjournment to 3 March 2023 and wrote to the representative confirming the adjournment, setting out the documents the applicant would be asked about, and inviting any further submissions or documents.

20. On the morning of 3 March 2023, the Tribunal received from the representative a translated letter, undated, from a person named as [Mr B], [Position 2] of BNP.

    Resumed hearing

21. The applicant appeared before the Tribunal at the resumed hearing conducted in person on 3 March 2023, with the assistance of an interpreter (via video link, then telephone) in the Bengali and English languages. The applicant’s representative joined the hearing via video link.

22. At the start of the hearing, the Tribunal explained to the applicant that the hearing had been adjourned to give him the opportunity to familiarise himself with the documents flagged for questioning and to get any advice he needed from his representative. The Tribunal also noted that it had written to the representative setting out the documents the applicant would be asked about. The applicant acknowledged this, and he and the representative indicated they had no questions before the resumption of the hearing.

23. The Tribunal acknowledged receipt on the morning of the resumed hearing of the translated letter from [Mr B].

24. The following is a summary of the applicant’s further evidence at the resumed hearing:

    24.1.In response to the Tribunal seeking clarification about the most recently received letter, the applicant said it was not a new letter, rather it was a new and better translation of the same letter. The representative explained that the new translation had been done by a NAATI accredited translator.

    24.2.The Tribunal noted the two translations were substantially similar however there were some differences. The Tribunal indicated to the applicant that the hearing would resume with questioning about the letter.

    24.3.The Tribunal noted the new translation states the applicant “is an acquaintance at my personal level” and asked the applicant to explain. He said he was unaware of the content of the letter or the issuer of the letter.

    24.4.The Tribunal asked the applicant again about the date discrepancy regarding his father’s appointment as [Position 1]. The applicant said he believes his father served in the role from 2000 to 2004, and he was offered the position many times after that, however he refused, and continued to be a BNP supporter. The applicant said he doesn’t know about the date, 2009.

    24.5.The Tribunal noted that both translations refer to a conflict or political feud between the applicant’s father and a person named as [Mr C], [Union 1] Awami League [Position 2], and asked the applicant to explain. The applicant said there had been conflict for a long time between his father and forefathers and AL, it was political and personal between his father and [Mr C]. Arguments and threats occurred between them. He started to understand the situation in 2004, but before that he wasn’t really aware. He clarified that [Position 1] is equivalent to [Position 2].

    24.6.When asked by the Tribunal if he had any evidence that [Mr C] was the [Union 1] Awami League [Position 2], the applicant said he may be able to find a copy of the news report following his father’s killing in 2017 as it mentioned [Mr C].

    24.7.The Tribunal noted the earlier translation states that when the applicant’s father was doing his duty (in the post of [Position 1]) he was oppressed by the caretaker government then the AL government, and the new translation states that his father in this time “had executed physical torment, false litigation led imprisonment and their allies RAB led abduction and kill scheme on [the applicant] and many other BNP leaders and activists [sic]”. The applicant said it’s not clear to him what the letter is referring to, but it could be the incident in 2011 (dealt with later in the applicant’s evidence). He can’t remember the exact dates of the caretaker government because it was a long time ago, he’s been under depression, and his parents have died. He thinks it was 2007 to 2008, then AL came into government. The Tribunal queried, if his father ceased as [Position 1] in 2004, how this made sense. The applicant said that even though his father resigned from the role in 2004, he continued to be involved in the party, and he was offered the role again, though he refused because he was worried for his family.

    24.8.The Tribunal noted the earlier translation states the applicant was oppressed because of his father’s position with BNP, and the new translation states the applicant was “subjected to various atrocities as a son”. The applicant said BNP members, in the minority, were always tortured by the majority and powerful AL, meaning AL stopped them from attending meetings and protests, and once he was beaten up badly. He joined the Jubo Dol and BNP because his family had been involved with BNP for a long time, and he liked the [work]. Asked by the Tribunal the ideologies or principles of BNP, the applicant said belief in Allah, democracy, inclusion of all religions, and what founder, Rahman, intended to be a party of peace.

    24.9.The Tribunal asked the applicant to explain the incident on [date] January 2011 that he referred to in his 2016 statutory declaration. The applicant said the incident occurred in [Village 1] around [time] in the morning. He was there with his father and brother and 10 to 12 BNP members; they were there to promote the party and recruit villagers to the membership. Before the villagers gathered, about 25 to 30 AL members arrived to shut down the activity. Arguments began and fights broke out between BNP and AL members, some of whom had armaments. Villagers gathered as the violent clashes escalated. In all, there were around 50 to 60 people present. The applicant was hit in the head; the scars remain. His father and brother were also hit, but not seriously injured. AL [Position 2] [Mr C]’s daughter, [Ms D], aged around [age], was struck by someone and became unconscious. At that point, the crowd dispersed, and the girl was taken to hospital where she died later that night.

    24.10.[Mr C] accused the applicant, his father and brother and other BNP members of killing his daughter. There were about 9 or 10 accused. The applicant can’t remember most of the names; [Mr E], [name] and [Mr F] were among them. He said they knew the daughter because their houses were close by one another, however they had nothing to do with her killing. Asked by the Tribunal why they were accused of the killing, the applicant said it was because of the longstanding conflict between the opposing parties, and between [Mr C] and his father. On 6 January 2011, the police arrested 3 or 4 of the accused, he can’t remember who, maybe [Mr F] was one of them.

    24.11.After the incident, the applicant, his father and brother went into hiding in separate places. They knew that the ruling AL would make sure they were arrested. His mother and sister also left the family home and stayed elsewhere. He heard from villagers that the police had come to their home looking for them. The applicant hid in the village for 2 to 3 days then went to Chittagong, which is a two day journey by bus and launch. He stayed there for about one and a half years, working with fishermen and living aboard a fishing boat to avoid detection. He ultimately left Chittagong for Australia by [boat].

    24.12.The applicant heard that his brother went [overseas] for a time and then returned to Bangladesh, however he doesn’t know where as he has not had any contact with him since their mother’s death. His father was granted bail and had to report to the police station regularly. The investigation of the killing of [Mr C]’s daughter is ongoing; there have been no convictions.

    24.13.The Tribunal asked the applicant to explain the circumstances of his father’s death on 14 February 2017. The applicant said there had been ongoing conflict between BNP and AL, and his father was often threatened and harassed over the years. On that day, around [time] at night, when he was returning home, his father was confronted by [Mr G] and other AL members who attacked him. He was hospitalised and died later that night. The killing was reported in the Bangladeshi news. The applicant thinks he gave a copy of the report to his representative. The Tribunal indicated it did not have a copy of the report and asked the applicant to provide it.

    24.14.The applicant said he spoke to his mother about his father’s killing as he was in Australia by then. She said the police didn’t care because AL is in power and they would take no action.

    24.15.The Tribunal asked the applicant about the various translated court documents that he lodged with his first visa application, starting with a document dated 5 March 2013. The applicant struggled to answer the Tribunal’s questions clearly. The Tribunal reminded the applicant that his hearing had been adjourned the week prior to allow time to familiarise himself with the documents flagged for questioning and it was the Tribunal’s expectation that he would have brought copies of the documents to the hearing and be prepared to answer questions. The Tribunal granted a brief adjournment to allow the applicant the opportunity to consult with his representative. On his return to the hearing room, the applicant laid out a number of documents in front of him to which he referred when the Tribunal continued its questioning.

    24.16.The applicant said his father had a lawyer in Bangladesh who handled his bail application and who also liaised with the court in relation to the applicant’s case in his absence. The applicant has never seen or spoken to the lawyer; his father had all the dealings with him until he died. When the applicant came to Australia he needed to provide evidence to the Department of the charges against him, so his father arranged for the lawyer to provide the court documents. The applicant had the original court documents with him at the hearing.

    24.17.The Tribunal commented to the applicant that the court documents were very confusing, [Mr C]’s statement referred to an incident on [date] January 2012, not 2011, and there was nothing in their contents that expressed a formal charge of murder or killing. The applicant could not resolve the confusion; he said the statement provided by [Mr C] was fabricated, and otherwise the lawyer dealt with the court, so he couldn’t explain the contents.

    24.18.Asked by the Tribunal whether the court documents are genuine, the applicant said they are genuine, but he’s been away for a long time, and he’s had depression, mental stress, and his parents have passed away. The applicant said there were two people named [Mr E]: the BNP member who was one of the accused; and [Mr C]’s son.

    24.19.The Tribunal read out to the applicant the translated letter dated 27 January 2013 from [name], the chairman of the [union] attesting to his good character. The applicant said his mother had organised the letter after his father had died. The Tribunal queried this given that the father died in 2017 and the letter is dated 2013. The Tribunal also queried why [this person] would provide such a letter when he was also listed in the court documents as a witness to the killing incident. The applicant appeared to be confused about what document he was being questioned about, then showed the Tribunal his father’s death certificate.

    24.20.The Tribunal read out to the applicant the translated news reports titled, “[Title]”, noting their similar content. There was confusion about the date of these reports as the translation for one was dated 30 August 2016. The applicant said they were dated 5 January 2011, however neither bears this date. The Tribunal noted the reports stated that the applicant was selected [Position 1] of the BNP [Union 1] in 2009. The applicant said he was selected, but declined to take up the role because he didn’t want to be harmed.

    24.21.The Tribunal asked the applicant about his statement in his statutory declaration that he had been attacked by AL supporters before the incident in January 2011. He said he and his father and others were attacked by AL and stopped from attending meetings and entering the party offices in 2002 and 2004.

    24.22.The applicant said the police in Bangladesh are still looking for him because the killing case is ongoing. He has not been in contact with anyone in Bangladesh about the case since his father was killed, or with his brother since his mother’s death.

    24.23.The applicant has had contact with BNP members in Sydney while in Australia, most recently two weeks ago. He sometimes attends meetings or activities; on other occasions, they just meet and talk about political issues. He doesn’t post on social media, but does follow others.

    24.24.The applicant is working [in] Brisbane. He doesn’t have a partner or children here. He would like to but he hasn’t been able to without a decision on his visa.

    24.25.The applicant says the killing case will never be over while the AL are in power in Bangladesh. If he returns to Bangladesh, police will arrest and kill him. [Mr C] is angry about the death of his daughter and AL will take revenge on him. He said the BNP leader, Zia’s son is in London and can’t return. The applicant couldn’t say where he would live or whether he would join the BNP if he returned to Bangladesh because he doesn’t have a house and he doesn’t know if he’ll be alive. He has no protection because he’s powerless against the AL; they will catch him wherever he goes. The applicant doesn’t know when the next national elections are because AL haven’t called them; there have been elections since 2008, however they weren’t conducted fairly.

    Adverse information – disclosure at hearing under s 424AA of the Act

1. The Tribunal presented the following explanation and disclosure to the applicant at hearing:

   Where any information comes to the attention of the Tribunal that it considers would be the reason or part of the reason for affirming the decisions under review, I must, in accordance with s 424AA of the Migration Act, present clear particulars of that information to you today.

   I must also ensure, as far as reasonably practicable, that you understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision under review.

   I emphasise that, while I have these obligations, I have not yet made up my mind about your case or the extent to which the information affects your claims for protection.

   I must invite you to comment on or respond to the information.

   And I must advise you that you may seek additional time to comment on or respond to the information.

   If you do seek additional time, I must adjourn the hearing for such time as I consider reasonably necessary to allow you to comment or respond.

   The information I have comes from a series of news reports published in mainstream online press in Bangladesh and a number of other countries, including Australia from January 2011. The reports refer to an incident in January 2011 in [Village 1] in [named] district. I will give a brief version of the reports. A girl named [Ms D], the [age] year old daughter of [Mr G], was sentenced under Sharia Law by the village court of elders and clerics to 101 lashes for having an affair with [Mr E]. It was later found that she had been raped by [Mr E]. [Mr E] was sentenced to 201 lashes however he escaped after 4 or 5 lashes. [Ms D] collapsed unconscious after 40 to 50 lashes and was taken to hospital where she died 6 days later.

   [Ms D]’s death provoked widespread outrage in Bangladesh where punishments in the name of fatwa had been outlawed.

   Police treated the case as murder and arrested six villagers including a Muslim cleric. [Mr E] was also arrested after being on the run. Others accused of being implicated in the crime appear to remain at large, however names of accused are not provided, and there are no recent reporting updates.

   There is no reference in any of the reports to this incident having any connection to clashes between the BNP and Awami League.

   There are a number of concerning aspects to these news reports in light of your account of an incident that occurred in a similar location in January 2011 involving some individuals of the same name. In the absence of an explanation, the reports raise serious questions in my mind about your account of the incident, and the credibility of your claims and evidence.

   I am not asking you to respond to this information right now. I need to allow you time to consider your response, and, if you wish, take advice from your lawyer. Would you like to take some time now to consult with your lawyer?

2. The Tribunal granted a brief adjournment. On his return the applicant said he had not heard about the information the Tribunal had provided, and he had presented his case.

3. The Tribunal invited the representative to make written submissions regarding the adverse information, and to provide a copy of the news report related to the killing of the applicant’s father by [Mr C], and any other documents in support of the applicant’s case by 10 March 2023. At the representative’s request, the Tribunal agreed to an extension to 17 March 2023.

   Post-hearing correspondence

4. Applicant’s letter to Tribunal dated 16 March 2023 set out in Attachment B.

5. Tribunal’s s 424A letter to applicant dated 30 March 2023 set out in Attachment C.

6. Applicant’s letter to Tribunal dated 13 April 2023 set out in Attachment D.

   Relevant country information

7. The December 2022 DHA Common Claims Bangladesh report states (inter alia) that:

   31.1.The political process in Bangladesh is marked by violence. A long-standing and intense rivalry persists between the ruling Awami League (AL) party and its political opposition, headed by the BNP and its Jamaat-e-Islami (JI) ally. Inter-party political violence (mainly between AL and opposition supporters) is ongoing, though historically is most prevalent in the lead up to national or local elections. Political conflict between the AL and its opponents peaked around the January 2014 elections – the most violent in Bangladesh’s history – and subsequent opposition-led nationwide hartals (strikes). High levels of political violence have continued throughout subsequent years, though shifted from inter-party to predominantly intra-AL clashes. As of January 2022, Odhikar reported that 182 people have been killed and 8558 persons have been injured as a result of political violence in 2021. In 2021, 400 incidents of internal violence within Awami League were reported, where 62 persons were killed and 3424 were injured in internal conflicts; and 15 incidents of internal violence within BNP were recorded, where 109 were injured.

   31.2.AL and affiliate organisation members face a low risk of inter-party violence, though may be subjected to violence arising from intra-party factional rivalries. Disputes between members have the potential to lead to violence, but the extent of such violence would depend on the political and social profile of the disappointed candidate and how much money or followers they have. Criminal activities of leaders and activists associated with AL’s student and youth wings persist. The AL’s student and youth wings comprise an extensive membership; the Bangladesh Chhatra League (BCL – the party’s student wing) alone is estimated to have around 10 million members. Partly due to their size, the central leadership of the relevant political party exercises only a limited amount of control over their activities, while the auxiliary organisations maintain a high degree of autonomy.

   31.3.The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties, using security forces to prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections. Social organisations that are close to the government are allowed to operate freely whereas those organisations which are associated with the opposition parties are prevented from implementing programs that are critical of the government. Police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances, torture and extra-judicial killings occur. It is estimated that 610 persons have disappeared since the AL came to office in 2009. While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found.

   31.4.Political confrontation and clashes between the AL and the BNP may be increasing and national elections are scheduled to be held in December 2023. According to BNP spokesperson Sairul Kabir Khan, since 22 August 2022 police had charged at least 4,081 named party supporters and leaders in what he called trumped-up or “fake” charges related to the violence, and another 20,000 unidentified BNP supporters had also been charged. On 12 November 2022 police arrested 32 leaders and activists of the BNP and its affiliate organisations in Dhaka’s Mohakhali who were implicated in cases involving attacks on law enforcement and terrorism. Human Rights Watch stated that mass arrests and police raids of opposition party members’ homes raise serious concerns about violence and intimidation ahead of the upcoming parliamentary elections. The seven rallies held in major cities to November were peaceful, despite facing disruption as the AL government shut down public transport. One casualty occurred at the 10 December protest rally. There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019 , 2020 and 2021.

8. DFAT notes that in the period between 2009 and 2014 clashes between the two main political parties (the Awami League and the BNP) and their supporters and the authorities, resulted in numerous deaths.[1] DFAT states that between 2013 and 2014 alone, several hundred people are reported to have died or been injured in political violence. [2]  The UKHO observed that in late November and December 2012 there were numerous violent clashes between police and the respective supporters of the BNP and Awami League, including in Khulna District.[3] The UKHO notes that at least two people were killed (one in Sirajganj and one in Dhaka) and more than 290 people, including 40 policemen, were injured during the clashes. During that time, over 70 bombs were detonated, about 50 vehicles (including five police vehicles) were set on fire and hundreds of other cars were vandalised.[4] It was reported that in 2012, a total of 169 persons were killed and 17,161 injured in political violence, and that in total 8,675 people were arrested.[5] Reports generally indicate that Khulna ranked high in the rate of lethal causalities from politically motivated violence during this period.[6]

   [1] DFAT, DFAT Country Information Report Bangladesh 20 October 2014’, at [2.5].

   [2] DFAT, DFAT Country Information Report Bangladesh 20 October 2014’, at [3.52].

   [3] United Kingdom Home Office, ‘Operational Guidance Note: Bangladesh’, 25 March 2013 [3.6.7].

   [4] United Kingdom Home Office, ‘Operational Guidance Note: Bangladesh’, 25 March 2013 [3.6.7].

   [5] United Kingdom: Home Office, ‘Operational Guidance Note: Bangladesh’, September 2013 at [3.9.5].

   [6] B Suykens, MA Islam, ‘The Distribution of Political Violence in Bangladesh 2002 – 2013’, Conflict Research Group’ 2015 ; and 'Khulna division districts see a spate of crimes', Daily Star, The (Bangladesh), 07 February 2014.

9. The November 2022 DFAT Country Information Report for Bangladesh states (inter alia) that:

   33.1.[3.65] 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.

   33.2.[3.67] 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.

   33.3.[3.68] 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.

   33.4.[3.69] 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.

   33.5.[3.76] Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence.

   33.6.[3.78] 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.

   33.7.[3.79] 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.

   33.8.[3.80] 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.

   33.9.[3.81] 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.

   33.10.[3.82] 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.

   33.11.[3.83] 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.

   33.12.[3.84] 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.

   33.13.[5.5] 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.

   33.14.[5.9] There is a large backlog of cases across the court system and some cases take over ten years to resolve, a situation of which vexatious litigants take advantage, to extend legal rulings indefinitely. Having to return to court for various hearings or intermediate proceedings can be particularly difficult for the poor, who must take time off work and pay for travel. The same applies to criminal cases, where prisoners are sometimes held on remand for long periods, or bailed then rearrested in quick succession. Bribe payments can affect these outcomes. Whether long-running cases are eventually dismissed differs from case-to-case. A ruling from a higher court would be necessary to reverse or quash a decision, but this is cost-prohibitive for most Bangladeshis.

   33.15.[5.11] The poor are unlikely to be able to access the courts due to the high costs involved and the need to pay bribes. Court processes are largely paper-based, the bureaucracy is slow and bureaucrats demand bribes merely for moving papers between offices or actioning simple processes. This in turn creates delays and difficulties in verifying documents. It is possible to obtain documents if one is willing to pay (fees and bribes) but widespread fraud also frustrates this process. Court infrastructure (buildings, equipment) is often in poor condition, leading to poor storage and access to records.

   33.16.[5.12] Legal aid is theoretically available to the poor. This is provided by the government through legal aid officers in every District Court. NGOs also provide legal aid. However, due to funding constraints or other practical difficulties it may not be available to all defendants.

   33.17.[5.15] According to the World Prison Brief, Bangladesh had 83,107 prisoners across 68 prisons in March 2021, of whom 81 per cent were on remand, and 3.9 per cent were female. The 2020 US Department of State Human Rights Report on Bangladesh assessed prison conditions as ‘harsh and at times life threatening due to severe overcrowding, inadequate facilities and a lack of proper sanitation’.

   33.18.[5.26] 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. Information contained in the Tribunal’s s 424A letter to the applicant dated 30 March 2023 and set out in Attachment C.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.

3. The Tribunal has considered as a whole all evidence and submissions provided in relation to both the valid first visa application and the invalid second visa application.

4. In considering the applicant’s claims and evidence, the Tribunal has taken into account the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.

5. Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.

6. In particular, the Tribunal notes the following guidelines:

   39.1.[6] Evidence considered by the tribunal may include written submissions, an applicant’s oral evidence, oral evidence from other persons, information about conditions and laws in an applicant’s country of origin, expert evidence in the form of written reports or oral evidence and documentary evidence provided by an applicant or the Department of Immigration and Border Protection (the department). Applicants for protection visas are often unable to support claims by documentary or other proof.

   39.2.[7] The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.

   39.3.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.

   39.4.[9] Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

   39.5.[10] The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

   39.6.[11] 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. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   39.7.[27] Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

   39.8.[28] When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.

   39.9.[45] In some cases, it may be appropriate for the tribunal to form its own view on the authenticity of documents. The tribunal may have regard to factors such as the appearance, language or content of a document; anomalies with respect to dates in the document; the likelihood of the document coming into existence in the way claimed by an applicant; the timing of the production of the document to the tribunal; oral evidence provided in relation to the document; and evidence of fraud in relation to documentary material from a particular country or source. An applicant’s overall lack of credibility may affect the weight given to a document produced by an applicant. It is also possible that doubts about further documentary evidence submitted by an applicant may be raised if the applicant has previously submitted false documents with an application.

   39.10.[49] Where the tribunal rejects the authenticity of a document submitted by an applicant, the tribunal should provide reasons for its finding that a document is not genuine.

7. The first issue for the Tribunal to determine is the nature and effect of the discrepancies between the applicant’s account of the death of a girl and the widespread media reports in Bangladesh and internationally of the death of a girl – apparently of the same or similar name, having a father of the same or similar name, from the same village, at around the same time – put to the applicant as adverse information at hearing and in writing pursuant to ss 424AA and 424A of the Act.

8. The particulars of the applicant’s account and the media reports are sufficiently set out elsewhere in this decision record, including Attachments B to D.

9. The central questions for the Tribunal are whether the applicant’s account and the media reports relate to the death of the same girl, and if so, whether the discrepancies material to the determination of the applicant’s case can be credibly explained and reconciled.

10. The Tribunal notes that on the applicant’s account, a girl was incidentally injured in the midst of a violent clash in or near [Village 1] on [date] January 2011 between AL and BNP supporters and died later the same day, whereas the media reports state that around the same date a girl was subjected to a public whipping, fatwa punishment for alleged adultery [and] died some days later.

11. The Tribunal notes that there are apparently minor discrepancies in the names of the girl and her father, and the date of the girl’s death. The Tribunal considers that these discrepancies may in fact be material or, alternatively, immaterial and as a result of the applicant’s oversight or lapse of memory and/or imprecise media reporting.

12. The Tribunal notes that there are discrepancies in the spelling of the name of the village in or near where the death of a girl occurred, whether on the applicant’s account or according to the media reports. The Tribunal accepts the applicant’s evidence that the village name can be spelt ‘[Village 2]’ or ‘[Village 1]’.

13. The Tribunal notes that the media reports do not name the applicant or his father as being connected to the girl’s death as reported.

14. The Tribunal considers that the applicant genuinely engaged with the issue and the questions raised by the Tribunal at hearing and in writing.

15. The Tribunal notes the applicant has consistently asserted that [Mr C] – not [Mr G] – was AL’s [Union 1] [Position 2] and his father’s political adversary, and was the father of a girl who died according to the applicant’s account.

16. The Tribunal considers that, on assessing the evidence overall, notwithstanding the close similarities in names, date and location, there is sufficient doubt to avert a finding that the applicant’s account and the media reports relate to the death of the same girl. Accordingly it is not necessary for the Tribunal to consider whether the discrepancies can be credibly explained and reconciled.

17. The Tribunal finds in the applicant’s favour in relation to the first issue.

18. Taking into account the relevant country information, the Tribunal considers the applicant’s overall account of past events credible.

19. The Tribunal notes the applicant has denied any knowledge of the death of a girl as reported. The Tribunal considers it is reasonably believable that the applicant was not aware of the media reports given that following the death of the girl the applicant went into hiding before travelling to Australia by boat and entering immigration detention.

20. The Tribunal considers there is no objective basis on which to conclude that the translations of the court and other documents submitted by the applicant are translations of fabricated documents.

21. Given the nature of the past events, the circumstances in which the applicant came to Australia, and the period of ten years that has since elapsed, the Tribunal considers it is reasonably believable that the applicant is unable to provide more comprehensive documentary and other proof in support of his account of past events.

22. The Tribunal does not consider the inconsistencies and gaps in the applicant’s oral and written evidence material in the context of the applicant’s overall account of past events.

23. Directly relating to the applicant’s claims for protection, the Tribunal considers there is sufficient credible evidence before it to accept that:

    56.1.The applicant’s father held a high profile position, formally and informally, for many years with the BNP’s [Union 1], and the applicant, through his father, became a known BNP supporter and active participant in the local union.

    56.2.The applicant’s father and [Mr C], as his AL equivalent, were longstanding political adversaries.

    56.3.The applicant and his father were from time to time involved and harmed in violent local clashes between the local BNP and AL party organisations, including during the incident resulting in the death of the girl.

    56.4.The applicant has been accused of being implicated in the death of [Mr C]’s daughter, which he asserts is false, and he is the subject of outstanding charges.

    56.5.The applicant fears that if he returns to Bangladesh he will be targeted and harmed by [Mr C] and/or his associates on the basis of past events and will be pursued and prosecuted for the murder of [Mr C]’s daughter.

24. Given that the applicant has been absent from Bangladesh and never entered an appearance in relation to the court matters against him, the Tribunal considers it is possible the matters remain active.

25. The Tribunal considers it is possible that the applicant’s father was killed by [Mr C] or his associates.

26. The Guide to Refugee Law in Australia at 3-9 to 3-11 states (inter alia) that:

    In most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past. Such findings provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a Convention reason is well-founded.

    The extent to which past events can be a guide to the future was explained in Guo’s case. As the High Court observed:

    Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.[7]

    [7]          MIEA v Guo (1997) 191 CLR 559 at 574.

    Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:

    In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[8]

    Assessing what is likely to happen in the future on the basis of past events involves questions of degree. The Court in Guo explained:

    The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[9]

    If an applicant is relying on his or her own past experiences, then the logical starting point for the decision maker is whether the events happened as claimed, and if so, whether they constituted persecution for a Convention reason.[10] Evidence that the applicant had been persecuted in the past would give powerful support to the conclusion that the claimed fear is well-founded.[11] In Chan’s case the High Court observed that although the date of decision is the relevant date for assessing whether the Convention test is satisfied, the circumstances in which an applicant fled his or her country will ordinarily be the starting point in ascertaining his or her present status. If at that time the applicant satisfied the relevant test, the absence of any material or substantial change in circumstances, such as a new government, will point to a continuation of his or her original status.[12]

    However, simply making a finding about what occurred in the past is not enough to satisfy the real chance test; the essence of that test is the process of looking to the future.[13] Clearly, while past events will often provide a reliable means of predicting future persecution, that will not always be the case.

    For example, where there has been a substantial change in country conditions, the past will be a less reliable guide for the future.[14] Similarly, the fact that an applicant did not suffer harm over a limited past period may not be a reliable guide as to whether there is a risk of harm in the future.[15]

    [8]          MIEA v Guo (1997) 191 CLR 559 at 575.

    [9]          MIEA v Guo (1997) 191 CLR 559 at 574–5.

    [10]         Abebe v The Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [82]. See also per Gummow and Hayne JJ at [192]: ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’. In SZRCJ v MIAC [2012] FMCA 605 at [34], the Court confirmed that consideration of whether there is a well-founded fear of persecution in the future necessarily involves a determination as to what happened in the past, both as to whether past harms happened and whether they had a Convention character. The Court found no error in the Tribunal’s characterisation of the past harms encountered by the applicant by reference to the requirements in s 91R(1) for the purpose of assessing persecution.

    [11]         Abebe v The Commonwealth (1999) 197 CLR 510 at [82].

    [12]         Chan v MIEA (1989) 169 CLR 379 at 391, 399, 406. In the same case, Gaudron J expressed the view that if an applicant’s past experiences produced a well-founded fear of being persecuted, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. However, that does not represent the majority view of the Court in Chan: see MIMA v Eshetu (1999) 197 CLR 611 at [150] and also SZRKN v MIAC [2012] FMCA 1021 at [22]–[28].

    [13]         DZADC v MIAC (No 2) [2012] FMCA 778 at [16] applying Chan v MIEA (1989) 169 CLR 379 and MIEA v Wu Shan Liang (1996) 185 CLR 259. The Court found error in that case because the reviewer did not take the extra step of explaining why the finding that nothing had happened in the past meant that nothing would happen in the future. A similar error was identified in SZSTZ v MIBP [2015] FCCA 93 at [42].

    [14]         However, as Dowsett J stated in B90 of 2003 v RRT [2004] FCA 1557 at [28], ‘where circumstances are said to have changed for the better since any incident testified to by an applicant, the Tribunal should exercise care in ensuring that such changed circumstances relate to the circumstances in which the incident occurred and recognize that change is, almost inevitably, relatively gradual, incremental and unlikely to take effect in a uniform way throughout any particular geographical region’. Likewise, If circumstances in the country are fluid and rapidly changing, the Tribunal might be required to consider those circumstances in determining whether a fear is well founded: SZWCI v MIBP [2015] FCCA 1809 at [26].

    [15]         In SZSZO v MIBP [2014] FCCA 242 the Court found that the Tribunal’s observation about the applicant’s past lack of harm over the several months he had worked as a taxi driver could not have provided any ‘guide’ about the risk of future harm, the future being an indefinite period rather than a short, closed one: at [32].

27. The Guide to Refugee Law in Australia at 3-5 to 3-9 states (inter alia) that:

    A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[16]

    [16]         Chan v MIEA (1989) 169 CLR 379 at 389.

    In the same case Dawson J stated:

    ... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[17]

    [17]         Chan v MIEA (1989) 169 CLR 379 at 397–398.

    and Toohey J stated:

    A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.[18] 

    [18]         Chan v MIEA (1989) 169 CLR 379 at 407.

    Similarly, according to McHugh J:

    [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.[19]         

    Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[20] …

    There can be no set procedure in assessing whether there is a real chance of persecution. The process of establishing whether an applicant’s fear is well-founded will involve making findings of fact based on an assessment of the applicant’s claims and relevant country information, speculation as to the reasonably foreseeable future and a finding as to whether there is a real chance that persecution will occur.[21] It is for the applicant to provide evidence and argument sufficient to satisfy the decision maker of the relevant facts.[22] There is no onus on the decision-maker to make the applicant’s case for him or her.[23]

    However, the decision-maker has an obligation to consider all substantial and clearly articulated claims, relying on established facts, expressly made or clearly arising from the circumstances.[24] This must be understood as being claims to fear harm in the reasonably foreseeable future if the applicant were to return to his or her home country.[25]

    Failure by a decision-maker to have regard to the chance of harm in the reasonably foreseeable future, for example by considering only the present or immediate future, may amount to a legal error.[26] If a decision-maker concludes that there is no real chance of harm presently, it may be necessary to consider whether a change in circumstances that may readily be foreseen could result in a real chance of harm arising.[27]

    The Federal Court has commented that the use of the reasonably foreseeable future concept in this context indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork, and is intended to preclude predictions of the future that are so far removed in time from the life of the person concerned at the time they are returned to their home country as to bear insufficient connection to the reality of what that person may experience.[28]

    Similarly, the Department of Home Affairs’ ‘Policy: Refugee and humanitarian – Refugee Law Guidelines’ (the Refugee Law Guidelines) discuss how any assessment of the reasonably foreseeable future may vary considerably depending on whether there is an armed conflict, or a violent and/or volatile political environment in the receiving country.[29]

    [19]         Chan v MIEA (1989) 169 CLR 379 at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.

    [20]         MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].

    [21]         MIEA v Wu Shan Liang (1996) 185 CLR 259 at 294: ‘The process of determination involves the delegate’s making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the ‘real chance’ affecting the treatment of the applicant if he or she were to be returned to China’. As to the ‘reasonably foreseeable future’, see Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.

    [22]         MIMA v Lay Lat (2006) 151 FCR 214 at [76].

    [23]         Prasad v MIEA (1985) 6 FCR 155 at [33]. However, findings of fact are not necessarily a preliminary step in every case to the consideration of whether the relevant level of satisfaction is reached. There may be cases where a paucity of evidence means that the decision-maker cannot be satisfied that the claimed fear is well-founded: SZSMQ v MIBP [2013] FCCA 1768 at [42]–[44].

    [24]         SZTOO v MIBP [2015] FCCA 1631 at [27], citing Dranichnikov v MIMA [2003] HCA 26.

    [25]         SZTOO v MIBP [2015] FCCA 1631 at [27].

    [26]         See for example MZYXR v MIAC [2013] FCA 252 at [22]; MIAC v SZQKB [2012] FCA 1189 at [42].

    [27]         SZQXE v MIAC [2012] FCA 1292 at [7].

    [28]         CPE15 v MIBP [2017] FCA 591 at [60].

    [29] Department of Home Affairs, ‘Policy: Refugee and humanitarian - Refugee Law Guidelines’, section 3.12.2, re-issued 27 November 2022 (Refugee Law Guidelines). Note that Ministerial Direction No 84, made under s 499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant (for further discussion, see Chapter 12 – Merits review of Protection visa decisions of this Guide). The Guidelines provide two examples of how the situation in the receiving country may affect an assessment of the reasonably foreseeable future, namely the relative stability of the political environment in the People’s Republic of China under the rule of the Chinese Communist Party since 1949 on the one hand, and the uncertainty of the effect of the announcement of the withdrawal of coalition forces from Afghanistan in 2014 on the other hand. However, these are examples only and should not be applied in a blanket manner; rather, decision makers should consider the individual circumstances of the case before them. Further, the Guidelines should be treated with caution to the extent they suggest that the reasonably foreseeable future may be a period as short as a month, a week, or possibly even days.

1. The Tribunal notes that 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.

2. The Tribunal considers that the applicant’s past experiences of being targeted and harmed, the increasing violence among AL and BNP supporters in the lead-up to the 2023/2024 Bangladeshi elections, the accusations that the applicant is implicated in the death of [Mr C]’s daughter, [Mr C]’s likely desire for retribution against the applicant for the death of his daughter, and the possibility that the court matters against the applicant remain active and would lead to his pursuit and prosecution on his return to Bangladesh are strong factual bases for a conclusion that the applicant’s fear of persecution is well-founded.

3. The Tribunal considers that, if the applicant returns to Bangladesh, there is a real and not remote chance that within the reasonably foreseeable future he would be targeted and harmed by [Mr C] and/or his associates.

4. The Tribunal considers that, if the applicant returns to Bangladesh, there is a real and not remote chance that, within the reasonably foreseeable future, the court matters against him would be enlivened and he would be pursued and prosecuted.

5. The Tribunal considers that, if the applicant returns to Bangladesh, it is unlikely he would avoid or lower the prospect of being targeted, harmed, pursued and prosecuted by living elsewhere in Bangladesh. The Tribunal further considers that it is possible the applicant would be apprehended on his arrival in Bangladesh in relation to the outstanding charges against him.

6. The Tribunal considers that, if the applicant returns to Bangladesh, it is unlikely he would have any family or friends to provide him with the financial and emotional support and protection necessary to live and to defend the charges against him.

7. The Tribunal considers that, if the applicant returns to Bangladesh, based on the country information, it is unlikely the applicant could rely on the Bangladeshi police or authorities for protection.

8. The Tribunal considers that, if the applicant returns to Bangladesh, he would be unable to modify his behaviour to avoid or lower the prospect of being targeted, harmed, pursued and prosecuted as his vulnerability to such arises from past events and pre-existing circumstances.

   Application of law

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

10. The Tribunal finds that:

    70.1.The applicant is a non-citizen in Australia.

    70.2.The applicant fears being persecuted in Bangladesh for his political opinion, both personally held and imputed to him as a result of his father’s political affiliations, and for the events that occurred as a consequence.

    70.3.There is a real chance that, if the applicant returns to Bangladesh, he would be persecuted for his political opinion and for events that occurred as a consequence.

    70.4.The persecution would involve serious harm to the applicant.

    70.5.The real chance of persecution relates to all areas of Bangladesh.

    70.6.There are no effective protection measures available to the applicant in Bangladesh.

    70.7.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Bangladesh.

    70.8.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.

    70.9.The applicant is outside Bangladesh, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Bangladesh.

    70.10.The applicant does not have a right to enter and reside in, temporarily or permanently, any country other than Bangladesh.

    decision

11. The Tribunal:

    71.1.remits the matter of a SHEV application made on 12 December 2016 (and bearing Tribunal review case number 1904657) with the direction that the applicant satisfies s 36(2)(a) of the Act; and

    71.2.sets aside the delegate’s decision to refuse the applicant a TPV application made on 7 October 2020 (and bearing Tribunal case number 2206946) and substitutes it with a decision that the visa application was not valid.

    Kate Chapple
    Member

    
    

    ATTACHMENT A

    Summary of applicable law

    The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.

    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).

    Relevant extracts 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.

    ATTACHMENT B

    Applicant’s letter to Tribunal dated 16 March 2023

    On the 03 March 2023, the tribunal advised me that the tribunal has information contrary to my protection claim from the internet which involves a girl being killed named [Ms D] in [named] District, Bangladesh. Following this, I searched online to locate this news and identified that a girl named, ‘[Ms I] or [Ms I variant 1] aka [Ms I variant 2]’ daughter of [Mr G] and [name].

    On the 24 January 2013, I attended an entry interview at the NIDC, Darwin. During the entry interview, I advised the department that I was falsely accused of killing a person named [name] in our neighbouring village.

    In my subsequent SHEV application, I have advised the Department that I was falsely accused of killing a girl on [date] January 2011 who is known as [Ms D] and I made a disclosure in my written statement that I am not sure about the spelling of the first name of the applicant.

    My statement at paragraph 17 read as follows:

    “The above attack went for about 20 minutes until it was stopped by the local villagers. After it was stopped, I saw some of the villagers crying and standing near a girl lying on the ground, who was known to me as [Ms D] (I am unsure of the spelling of her first name), from the neighbouring [Village 2]. [Ms D] was the daughter of [Mr C], a member of the AL. [Ms D] died the following day of head injuries as a result of the violent clash between both groups. I was not involved in her death, and did not see who had attacked her. I never found out who had attacked her and caused her death, my father, my brother, myself and several other party members present during the clash were all accused of the killing by her father.”

    I therefore submit that:

    • [Ms D] can also be spelled as [various different spellings].
    • [Ms D]’s surname is thee same as the father’s surname being ‘[name]’. Whereas the girl identified by the tribunal has a different surname being [different names].
    • [Ms D] is from [Village 2] whereas the [Ms I] is also from [Village 1].
    • It is coincident that both has similarity on their names but different individual.
    • Both of their fathers has the same first name including the surname with different [spelling].
    • The [newspaper] dated 14 February 2017 identified [Mr C] as Awami League [Position 2] as opposed to [Mr G] who is a labourer in other newspaper.

    It is therefore submitted that the information is inaccurate and should be ignored.

    ATTACHMENT C

    Tribunal’s s 424A letter to applicant dated 30 March 2023

    INVITATION TO COMMENT ON OR RESPOND TO FURTHER ADVERSE INFORMATION – [applicant’s name]

    We acknowledge receipt of a letter dated 16 March 2023 that appears to have been signed by the applicant. The letter seeks to respond to the adverse information raised by the Tribunal with the applicant in the course of the resumed hearing of his application for review held on 3 March 2023.

    Following the applicant’s response, the Tribunal has undertaken further inquiries and obtained further information. In conducting the review, the Tribunal is required under s 424A of the Migration Act 1958 (Cth) to invite the applicant to comment on or respond to certain information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. This is referred to as adverse information.

    The Tribunal’s further inquiries have resulted in further adverse information that the applicant is now invited to comment on or respond to in writing.

    The further adverse information is as follows:

    1. The Tribunal has been unable to locate a place called [Village 2] in Bangladesh, only a [Village 1]. We note there is a [Village 2] in West Bengal in India. We further note that in the arrest warrant provided by the applicant the location is identified as [Village 2], however the charge sheet refers to the incident occurring in [Village 1]. The applicant’s recent letter refers to [Ms D] as coming from “the neighbouring village of [Village 2]”, and states that “[Ms D] is from [Village 2] whereas the [the other girl] is also from [Village 1]”.
    2. Source information confirms that the [Union 1] is in [the] district of Shariatpur, which falls within the Dhaka division of Central Bangladesh. There are [number] union parishads in [local] Upazila, of which one is called ‘[Village 1]’, not ‘[Village 2]’.
    3. It appears that some of the individuals reported to have been involved in [Ms I]’s 2011 death by public whipping were connected to the [Union 1 council].¹ One article identifies the [Union 1] leader as [Mr H].² However, their political affiliations are not stated, and the Tribunal has been unable to locate any further information about the membership of a BNP branch located in the [Union 1].

    1 [source redacted].

    2 [source redacted].

    4. Several news reports refer to [Ms D]’s father as [Mr C].³ The remaining sources name [Ms D]’s father as [Mr G], though it appears they are the same person.⁴ [Mr C] is described in one article as a peasant,⁵ and in another as a farmer.⁶ His political affiliations are not specified in the sources, and the Tribunal has not otherwise been able to locate information, including websites, news reports or articles, regarding a [Mr C] (or a [Mr G]) in connection with the Awami League (AL). There does not appear to be a list of AL members or leaders in the [Union 1], the [specified] Upazila, or the Shariatpur district available on the AL website. In two separate reports, the Immigration and Refugee Board of Canada considered the structure and leadership of the AL between 2004 and 2006,⁷ and between 2008 and July 2011.⁸ Neither refers to a [Mr C], or [Mr G], and did not specify the membership in the [Union 1] during the relevant period. Further, the Tribunal has not located news reports or other records establishing that the applicant’s father was the [Position 1] of the [Union 1] of the BNP, nor indicating that he had a long- term rivalry with [Mr C].
    5. The applicant’s letter states that “The newspaper daily [Newspaper 1] [dated] 14 February 2017 identifies [Mr C] as Awami League [Position 2] as opposed to [Mr G] who is a labourer in another newspaper.” [Newspaper 1] does not appear among the list of news outlets and newspapers in Bangladesh published on [named] website. The Tribunal located a website for a news media outlet called ‘[name]’ (also called ‘[alternate name]’), which is a Bengali language newspaper [in] India. The Tribunal has been unable to locate the specified article, or reference to a newspaper called [Newspaper 1].
    6. Sources indicate it is possible that [Ms I] (also known as [Ms I variant]), the daughter of [Mr G] could also have been known as [Ms D]. Information indicates that while approaches to naming vary based on familial, regional, and religious traditions, single women use their father’s family name as their family name.⁹

    3 [source redacted].,.

    4 ‘[source redacted]..

    5 [source redacted].

    6 [source redacted]..

    7 Immigration and Refugee Review Board of Canada, Refworld | Bangladesh: The Awami League (AL); its leaders; subgroups, including its youth wing; activities; and treatment of AL supporters by the authorities (2004-2006).

    8 Immigration and Refugee Review Board of Canada, Refworld | Bangladesh: Information on the Awami League (AL), including its leaders, subgroups, youth wings, and activities (2008 - July 2011).

    9 'Naming Conventions Guide', Australia: Department of Immigration and Citizenship - Identity Branch, Australia: Department of Immigration and Citizenship - Identity Branch, 01 November 2009, CIS18183; Cultural Atlas, ‘Bengali Cultural Orientation’, accessed 29 March 2023. See also 'Bengali Cultural Orientation', Defense Language Institute Foreign Language Center, Defense Language Institute Foreign Language Center, 01 January 2008.

    7. The Tribunal has been unable to locate current or historical police or court records related to the applicant’s involvement in the death of [Mr G]’s daughter. It does not appear that records relating to the applicant’s claimed case are available from websites for the police station,¹⁰ or the courts.¹¹ Nor could the Tribunal locate information from other sources regarding the applicant’s involvement in the death of a girl named [name], in [January] 2011.¹² However, numerous newspaper and academic articles have been located confirming the death of [Ms I], daughter of Mr [Mr G], in [Village 1], [in] Shariatpur district in January 2011, though they do not refer to the applicant or his father as being connected to this incident.¹³
    8. These sources confirm information put to the applicant, that [Ms D] died after she was whipped by members of the [Village 1] council as punishment for her alleged adultery with [Mr E]. He had in fact assaulted her. The fatwa against [Ms I] was issued by the Madras teacher, [and] mosque [Imam]. Following High Court intervention at least 18 named, and 10-12 unnamed people were charged in relation to her death. Those identified include: [names redacted]. Information about the incident does not reference the political affiliations of those involved. It was reported that the [Union 1] leader, [Mr H], stated he was out of the district at the time of the incident.

    10 Bangladesh Police.

    11 Chief Judicial Magistrates Court, Shariatpur, Causelist; Home : Supreme Court of Bangladesh.

    12 Sources consulted: Chief Judicial Magistrates Court, Shariatpur, Causelist; Home : Supreme Court of Bangladesh; NewsRoom (Weslaw); Odhikar Report, ‘Mid-Term Assessment and Report on the Universal Periodic Review: Bangladesh (reporting period February 3, 2009-February 3,2011), 10 February 2011; 'Freedom in the World Report Bangladesh 2011', Freedom House, 26 May 2011, CX266496; 'Bangladesh December 2011', UK Home Office, 23 December 2011, 3443; 'Human Rights Watch World Report Bangladesh 2012', Human Rights Watch (HRW), 22 January 2012, CX280335; South Asia Terrorist Portal (Bangladesh), ‘Timeline Terrorist Activities, Bangladesh (satp.org); 'Human Rights Report 2011 Bangladesh', US Department of State, 24 May 2012, OG0DB5438199; Ali Riaz, ‘Bangladesh in 2004 The Politics of Vengeance and the Erosion of Democracy’, Asian Survey, University of California Press, Vol. XLV, No. 1, January/February 2005: and searches on reflaw and google.

    13 [source redacted].

    9. The Tribunal was unable to locate news reports or other records regarding the death of the applicant’s father in 2017. Sources consulted did not record any such incident between [Mr G] or [name] occurring in 2017.¹⁴

    This further adverse information is relevant to the review because it is related to, however not consistent with, the main applicant’s claims. If the presiding member relies on the adverse information, it may be the reason or part of the reason the presiding member affirms the decision under review.

    Please note that the presiding member has not made a decision about the adverse information.

    Pursuant to s 424A of the Migration Act 1958 (Cth), the Tribunal invites the applicant to comment on or respond to the further adverse information in writing by 13 April 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If the applicant cannot provide his written comments on or response to the further adverse information by 13 April 2023, you may request an extension of time on his behalf. Such request must be received by the Tribunal by 13 April 2023 and you must state the reason the extension of time is required. The presiding member will carefully consider any request for an extension of time, taking into account all relevant circumstances, and will advise whether or not the extension has been granted.

    If the Tribunal does not receive the applicant’s comments or response within the period allowed or as extended, the presiding member may make a decision on the applicant’s review without taking any further action to obtain his views on the further adverse information.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance to the applicant, please contact the Translating and Interpreting Service (TIS) on 131 450.

    14 NewsRoom (Westlaw); google search; refworld, Asiafoundation.org, The State of Conflict and Violence in Asia, 2017; B, Suykens and Mohammad Aynul Islam, ‘The Distribution of Political Violence in Bangladesh (2002-2013),’ 2015; South Asia Terrorist Portal (Bangladesh), ‘Timeline Terrorist Activities, Bangladesh (satp.org); 'Human Rights Monitoring Report - September 1-30, 2017', Odhikar, Odhikar, 01 October 2017, CISEDB50AD6032; Ain o Salish Kendra(ASK), human Rights Situation of Bangladesh in 2017, 24 April 2018; Chief Judicial Magistrates Court, Shariatpur, Causelist; Home; and Supreme Court of Bangladesh.

    ATTACHMENT D

    Applicant’s letter to Tribunal dated 13 April 2023

    RE: Case number: 2206946 and 1904657

    Thank you for your letter and invitation to comment. In response to your letter, I say
    the following:

    Question One

    The Tribunal has been unable to locate a place called [Village 2] in Bangladesh, only a [Village 1] [in] Shariatpur. We note there is a [Village 2] in West Bengal in India. We further note that in the arrest warrant provided by the applicant the location is identified as [Village 2], however the charge sheet refers to the incident occurring in [Village 1]. The applicant's recent letter refers to [Ms D] as coming from “the neighbouring village of [Village 2]", and states that “[Ms D] is from [Village 2] whereas [Ms I] is also from [Village 1] ".

    Answer

    Bengali word ‘’ can be spell as [Village 2] or [Village 1].

    I have enclosed a MAP of [the] Upazila sourced from Local Government Engineering
    Department (LGED) website:
    [URL redacted]

    For example, both the spelling ‘[Village 1]' and ‘[Village 2]’ was used in Chargesheet dated 05 January 2011.

    Question Two

    Source information confirms that the [Union 1] is in [the] district of Shariatpur, which falls within the Dhaka division of Central
    Bangladesh. There are [number] union parishads in [this] Upazila, of which one is called’[Village 1]’, not ‘[Village 2]'.

    Answer

    [Village 2] or [Village 1] pronounces same in Bengali language and is referring to the same geographical location in Bangladesh. There is another village [name] in Shafipur Natore district of Bangladesh but not subject of this case.

    Question Three

    It appears that some of the individuals reported to have been involved in [Ms I]'s
    2011 death by public whipping were connected to the [Union 1 council].1 One article
    identifies the [Union 1] leader as [Mr H].2 However, their political affiliations are not stated, and the Tribunal has been unable to locate any further
    information about the membership of a BNP branch located in the [Union 1].

    Answer: I am unable to verify your information.

    Question Four

    Several news reports refer to [Ms D]'s father as [Mr C]. The remaining sources name [Ms D]'s father as [Mr G], though it appears they are the same person. [Mr C] is described in one article as a peasant, and in another as a farmer.

    His politica! affiliations are not specified in the sources, and the Tribunal has not
    otherwise been able to locate information, including websites, news reports or articles,
    regarding a [Mr C] (or a [Mr G]) in connection with the AwamiLeague (AL). There does not appear to be a list of AL members or leaders in the
    [Union 1], [or] the Shariatpur district available on the AL
    website. In two separate reports, the Immigration and Refugee Board of Canada
    considered the structure and leadership of the AL between 2004 and 2006, and
    between 2008 and July 2011. Neither refers to a [Mr C], or [Mr G],and did not specify the membership in the [Union 1] during the relevant period.
    Further, the Tribunal has not located news reports or other records establishing that
    the applicant's father was the [Position 1] of the [Union 1] of the BNP, nor indicating that he had a long- term rivalry with [Mr C].

    Answer

    [Ms D]'s father [Mr C] or [Mr G] may be the same person.
    [Mr G] may have been the farmer and hold a political post. It is my submission
    that [Mr G] is different to [Mr C] as published in the newspaper.

    Question Five

    The applicant's letter states that “The newspaper daily [Newspaper 1] dated 14 February 2017 identifies [Mr C] as Awami League [Position 2] as opposed to [Mr G] who is a labourer in another newspaper." [Newspaper 1] does not appear among the list of news outlets and newspapers in Bangladesh published on [named] website. The Tribunal located a website for a news media outlet
    called ‘[name]’, which is a Bengali language
    newspaper [in] India. The Tribunal has been unable to locate the specified
    article, or reference to a newspaper called [Newspaper 1].

    Answer

    [Newspaper 1] is a local newspaper published from Shariatpur. This website [URL redacted] has reference to [name] or [Newspaper 1]. The newspaper appears not to have an online portal.

    Question Six

    Sources indicate it is possible that [Ms I] (also known as [Ms I variant]), the daughter of [Mr G] could also have been known as [Ms D]. Information indicates that while approaches to naming vary based on familial, regional,and religious traditions, single women use their father's family name as their family name.
    Answer: I do not have any information on this and cannot comment.

    Question Seven

    The Tribunal has been unable to locate current or historical police or court records
    related to the applicant's involvement in the death of [Mr G]'s
    daughter. It does not appear that records relating to the applicant's claimed case are
    available from websites for the police station,or the courts. Nor could the Tribunal
    locate information from other sources regarding the applicant's involvement in the
    death of a girl named [Ms D], in [January] 2011. However,numerous newspaper and academic articles have been located confirming the death of [Ms I], daughter of [Mr G], in [Village 1], [in] Shariatpur district in January 2011, though they do not refer to the applicant or his father as being connected to this incident.

    Answer

    I was not involved and have any connection with flogging of the [Ms D] as
    described in the News Paper.

    Question Eight

    These sources confirm information put to the applicant, that [Ms D] died after she was
    whipped by members of the [Village 1] council as punishment for her alleged
    adultery with [Mr E]. He
    had in fact assaulted her. The fatwa against Ms [I] was issued by the Madras
    teacher, [and] mosque [Imam]. Following High Court
    intervention at least 18 named, and 10-12 unnamed people were charged in relation
    to her death. Those identified include: [names redacted]. Information about the incident does not reference the political affiliations of those involved. It was reported that the [Union 1] leader, [Mr H], stated he was out of the district at the time of the incident.

    Answer: I have no knowledge of this information. And cannot assist the tribunal.

    Question Nine

    The Tribunal was unable to locate news reports or other records regarding the death
    of the applicant's father in 2017. Sources consulted did not record any such incident
    between [Mr G] or [name] occurring in 2017.

    Answer

    I have provided death certificate of my father and the certificate contains the cause of his death.