1904657 (Refugee)

Case [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…

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1904657 (Refugee) [2023] AATA 2559
Case
[2023] AATA 2559
Decision Date

CaseChat Overview and Summary

This matter concerned the review of two protection visa applications made by a Bangladeshi national. The first application, for a Safe Haven Enterprise Visa (SHEV), was made on 12 December 2016, and the second, for a Protection Visa (PV), was made on 7 October 2020. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, particularly in light of information obtained regarding his alleged involvement in a death in Bangladesh and the validity of his second visa application.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of his political opinion, imputed or personally held, and whether his second visa application was valid given the operation of section 48A of the Migration Act 1958 (Cth). The Tribunal also considered whether effective protection measures were available to the applicant in Bangladesh and whether he could take reasonable steps to avoid persecution.

The Tribunal found that the applicant had a well-founded fear of persecution in Bangladesh due to his political opinion, stemming from his father's prominent position within the BNP and his own active involvement in the party. It was satisfied that there was a real chance of serious harm, that this risk extended to all areas of Bangladesh, and that no effective protection measures were available. Regarding the second visa application, the Tribunal determined that the section 48A bar had not been lifted and therefore the application was invalid. Consequently, the Tribunal remitted the first SHEV application with a direction that the applicant satisfied the criteria under section 36(2)(a) of the Act. The decision to refuse the second PV application was set aside, and it was substituted with a decision that the application was not valid.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 TRIBUNALProtection visa applications and related material The first visa application. Applicant’s supporting statutory declaration dated 19 November 2016 and various translated court documents, news reports and letters of support. The second visa application. 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 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. 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 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. 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. 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.

Decision

Reasons for decision

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 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; and71.2.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 ChappleMemberATTACHMENT ASummary of applicable lawThe 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 19585 (1) Interpretationcruel 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 familyFor 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 familyFor 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 BApplicant’s letter to Tribunal dated 16 March 2023On 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 CTribunal’s s 424A letter to applicant dated 30 March 2023INVITATION 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: 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]”. 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]’. 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]. 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]. 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]. 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.93 [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. 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 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]. 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 2017.14This 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 mrdivision@aat.gov.au, 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 DApplicant’s letter to Tribunal dated 13 April 2023RE: Case number: 2206946 and 1904657Thank you for your letter and invitation to comment. In response to your letter, I saythe following:Question OneThe 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] ".AnswerBengali word ‘’ can be spell as [Village 2] or [Village 1].I have enclosed a MAP of [the] Upazila sourced from Local Government EngineeringDepartment (LGED) website:[URL redacted]For example, both the spelling ‘[Village 1]' and ‘[Village 2]’ was used in Chargesheet dated 05 January 2011.Question TwoSource information confirms that the [Union 1] is in [the] district of Shariatpur, which falls within the Dhaka division of CentralBangladesh. 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 ThreeIt appears that some of the individuals reported to have been involved in [Ms I]'s2011 death by public whipping were connected to the [Union 1 council].1 One articleidentifies the [Union 1] leader as [Mr H].2 However, their political affiliations are not stated, and the Tribunal has been unable to locate any furtherinformation about the membership of a BNP branch located in the [Union 1].Answer: I am unable to verify your information.Question FourSeveral 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 nototherwise 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 ALwebsite. In two separate reports, the Immigration and Refugee Board of Canadaconsidered the structure and leadership of the AL between 2004 and 2006, andbetween 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 thatthe 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 submissionthat [Mr G] is different to [Mr C] as published in the newspaper.Question FiveThe 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 outletcalled ‘[name]’, which is a Bengali languagenewspaper [in] India. The Tribunal has been unable to locate the specifiedarticle, 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 SixSources 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 SevenThe Tribunal has been unable to locate current or historical police or court recordsrelated to the applicant's involvement in the death of [Mr G]'sdaughter. It does not appear that records relating to the applicant's claimed case areavailable from websites for the police station,or the courts. Nor could the Tribunallocate information from other sources regarding the applicant's involvement in thedeath 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] asdescribed in the News Paper.Question EightThese sources confirm information put to the applicant, that [Ms D] died after she waswhipped by members of the [Village 1] council as punishment for her allegedadultery with [Mr E]. Hehad in fact assaulted her. The fatwa against Ms [I] was issued by the Madrasteacher, [and] mosque [Imam]. Following High Courtintervention at least 18 named, and 10-12 unnamed people were charged in relationto 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 NineThe Tribunal was unable to locate news reports or other records regarding the deathof the applicant's father in 2017. Sources consulted did not record any such incidentbetween [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.

Ratio Decidendi

Legal Principle Established

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