1906592 (Refugee)

1906592 (Refugee) [2023] AATA 1014 (14 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1906592
2203650

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Roslyn Smidt
DATE:14 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 14 February 2023 at 10:42 AM
CATCHWORDS
REFUGEE – protection visa – Bangladesh – secret relationship with a young woman – supporter of the Bangladesh National Party – membership of the particular social group – political opinion – low-level supporter of the BNP – manufactured claim to support his application for protection – conflicting evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 46A, 65
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATIONS FOR REVIEW

The applicant, who is a citizen of Bangladesh, has applied for review of two decisions to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] October 2012. At the time he was considered to be an unauthorised maritime arrival (UMA) and therefore barred from lodging a visa application in Australia.
On 30 January 2013 he was granted a Temporary Safe Haven (Subclass 449) (Humanitarian Stay (Temporary)) visa by the Department, the effect of which was thought to trigger a s.46A bar which prevented him from making other types of visa applications in Australia under s 91K of the Act.
On 2 July 2015 the Minister lifted the 46A bar to allow the applicant to apply for a Safe Haven Enterprise visa (SHEV). The application was lodged on 19 August 2015. It was refused by the delegate on 4 November 2016. At the time it was assumed that the applicant was a UMA so the delegate's decision was reviewed by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate's decision on 31 March 2017.
The Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447 (DBB16 v MIBP), determined that the applicant should not have been considered a UMA and therefore the notification of the delegate’s 4 November 2016 decision and the IAA decision were invalid.
The applicant was renotified of the delegate’s decision on 20 March 2019. A valid application for review by the Tribunal was made on 20 March 2019 [Tribunal file 1906592]
On 23 October 2020 the applicant was advised that the Minister had lifted the s 48A and the s 91K bar which and was invited to lodge a SHEV application.
An application was lodged on 9 November 2020. That application was refused by the delegate on 3 March 2022. A valid application for review was made on 3 March 2022. [Tribunal file 2203650].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
background
The applicant is a [age]-year-old single man of Muslim faith from [named] District, Mohammadpur, Kulna Divison in Bangladesh. He lived at the same address from birth until his departure for [Country 1]. His parents and siblings remain in Bangladesh. He worked on his father’s farm after completing school. He departed Bangladesh by air and travelled to [Country 1] sometime in 2012. He worked as a [Occupation 1] in [Country 1]. He later travelled to [Country 2] and on to Australia by boat. He arrived in Australia on[date] October 2012.
SUMMARY OF THE APPLICANT’S CLAIMS
The applicant has consistently claimed that he would be physically harmed or killed if he returned to Bangladesh because he was in a secret relationship with a young woman called [Ms A] who was forced to marry another man when her father learned of their relationship and killed herself shortly afterwards. It has also been claimed that he would be at risk of harm including denial of the right to subsist because he supports or would be believed to support the Bangladesh National Party (BNP), because he left Bangladesh illegally and he would be returning as a failed asylum seeker with perceived links to a western country and because the authorities are corrupt and would not protect him.
CLAIMS AND EVIDENCE
The applicant did not provide any identity documents when he arrived in Australia. In 2013 he provided a copy of a birth certificate issued in June 2011, a citizenship certificate issued in January 2012 and a certificate of record of school attendance which states that he had attended school until 2002.
Arrival interview
According to the second delegate’s decision the applicant was interviewed on 27 October 2012. He claimed that he had fled Bangladesh because he feared that the family of a woman with whom he been in a relationship had committed suicide when she was forced to marry someone else and her family blamed him for her death.
Evidence provided to the Department in support of the applicant’s first protection application
In the application form dated 12 August 2015, the applicant said that he attended school from 1997 to 2009 and that he worked part time on his parents’ farm from about 1998 until 2009, after which he worked full time on the farm. According to hand-written notes on the form, he was at risk of harm from [Ms A]’s father and relatives because they blamed him for her suicide. He claimed that they had built a case against him as a member of the BNP who was working against the government and said that he had been beaten by [Ms A]’s relatives, but he ran away.
The applicant also provided a statement dated 12 August 2015. It was prepared with the assistance of his former representatives and a Bengali interpreter. It states that the contents of the statement were read to the applicant in the Bengali language and he confirmed that they were true.
According to the statement, the applicant first met [Ms A] at the [a] market in 2010 and their relationship lasted about two years. [Ms A]’s father was a wealthy businessman and a well-known member of the ruling Awami League. He had strong connections to the authorities. The applicant said that his family were not wealthy and supported the opposition BNP. The applicant and [Ms A] wanted to marry but they knew that her family would not accept this because the applicant was not wealthy.
Sometime in 2012 [Ms A] suggested they run away together. They did not have enough money at that time, so they decided to save until they had sufficient funds. In about January 2012, one of [Ms A]’s father’s friends saw them together at the market and told her father about their relationship. [Ms A] suggested they run away immediately as she feared her father would force her to marry someone else, but the applicant was concerned that they did not have enough money.
About eight weeks before the applicant left Bangladesh, [Ms A]’s father approached him in the market and threatened to kill him if he did not end his relationship with [Ms A]. Following this, he forced [Ms A] to marry another man to safeguard her honour. She committed suicide within a week.
[Ms A]’s father blamed the applicant for her death. He came to the applicant’s house when he was out and threatened to kill him. He also filed a case blaming the applicant for an unspecified crime. Six days before the applicant left Bangladesh the police came to his house to arrest him.
The applicant knew that he would not be safe anywhere in Bangladesh because [Ms A]’s father was powerful and well-connected. The applicant did not have a passport. With the help of a friend, he arranged to be taken to [Country 1] by a smuggler. He remained in [Country 1] illegally and was at constant risk of being arrested. He discovered that [Ms A]’s brothers were also living in [Country 1]. One of them chased him in the street and threatened to kill him. He escaped on that occasion but realised that he would not be safe if he remained in [Country 1]. With the help of a friend, he found a smuggler and came to Australia by boat.
The applicant said that he feared that [Ms A]’s father or his associates would kill him if he returned to Bangladesh. He also feared that members of the Awami League would harm him because [Ms A]’s father was a powerful member of the party and might accuse him of being a member of the BNP and of working against the government.
The applicant was interviewed by the first delegate with the assistance of a Bengali interpreter on 16 November 2015. According to the delegate’s decision he stated that he and [Ms A] met for the first time near a market behind some shops or in a shopping centre in about May 2010. After that they met in different places including a park about twice a week for an hour or two. [Ms A] suggested that they run away together, but he told her that he was from a poor family. She told him that her family was rich and she would make all the arrangements and look after the finances.
The applicant said that one of his friends knew about his relationship with [Ms A] and that people who saw them talking at the market who would have been aware of they were together. The delegate observed that it was her understanding that it was difficult for members of the opposite sex to meet in public in Bangladesh. The applicant said that they met in different places so that people could not catch them.
The applicant said that [Ms A]’s father learned of their relationship from people who saw them together. One day when he went to meet [Ms A] at the market her father came instead, told him he could not marry [Ms A] and threatened to kill him. The applicant phoned [Ms A] and told her what had happened. She suggested that they run away together, but he did not have enough money to do this. The following day her father came to the applicant’s home with five or six people and warned him to stay away from [Ms A].
Sometime in 2012 [Ms A]’s father forced her to marry another man. The applicant was not sure precisely when this occurred but said that [Ms A] committed suicide about a week after the wedding. Her family blamed him for her suicide and filed a case with the police. When asked what crime he had been accused of, he said that he was blamed for [Ms A]’s suicide. A warrant was issued for his arrest and the police had come to his house. They told his parents that he should surrender to them as he would be unsafe if [Ms A]’s father caught him. He said that he no longer had a copy of the arrest warrant.
The delegate noted that the applicant had previously stated that he was a supporter of the BNP. He said that he supported the BNP and had voted for them, but he was not a formal member and had not been involved in any activities in support of the party.
The applicant said that he left Bangladesh in early 2012. He had never held a passport. He paid smugglers who arranged everything. They gave him a book to show when he passed thought immigration. They took the book when he arrived in [Country 1].
The delegate found the applicant’s claims regarding his relationship with [Ms A] lacked credibility because his evidence was inconsistent and she found much of it implausible. She accepted that he and his family might support the BNP but found that he would not be of adverse interest to the Awami League or the government for that reason because his involvement was limited. She accepted that he may have left the country illegally, but after considering relevant country information found that he would not be at risk of harm for that reason.
As noted above, the delegate’s decision was reviewed by the IAA. No new evidence was provided to the IAA. The IAA’s decision is invalid following the decision in DBB16 v MIBP.
Evidence provided to the Department in support of the applicant’s second protection application
The applicant lodged a second application on 9 November 2020. He provided a copy of the written statement dated 15 August 2015 to the Department. He was interviewed by the second delegate on 6 August 2021.
According to the second delegate’s decision, the applicant confirmed that he had been in a relationship with [Ms A] for two years. He was unable to recall when she got married but said that she committed suicide about a week after the wedding. He said that he was depressed following her death and could not remember details.
The delegate asked the applicant how he had become involved with [Ms A] given they had such different backgrounds. The applicant said that he had not been aware of [Ms A]’s background until he proposed to her. When he proposed was not established. The second delegate noted that the applicant had told the first delegate that he did not know details such as [Ms A]’s full name or date of birth and observed that this seemed unlikely as he claimed that they met about twice a week, which suggested that they had met on over 200 occasions during their relationship. The applicant said that they sometimes met twice a week and sometimes only twice a month. During their meeting he asked how she was and what she was doing, but he did not ask her for personal details.
The applicant said that he and [Ms A] were careful about where they met so nobody would know about the relationship. Sometimes they met at her friend’s house. Sometimes she came to their meetings with a friend. The second delegate noted that the applicant had previously spoken about meeting in a park or market but had not mentioned meeting at a friend’s house. The applicant said that to begin with they had met here and there, including at friends’ houses, but when they met at [a] market they had settled everything.
Later in the interview, the applicant said that he and [Ms A] first met when they studied at the same school. She was one year behind him. They liked each other and began to talk. The second delegate observed that this was at odds with his earlier statement that they first met at a market in 2010. The applicant said that before the meeting in the market they had exchanged some greetings but when they met in 2010, [Ms A] asked if he intended to marry her. He wanted to marry her, but he did not have the money. She told him that she would commit suicide if she was forced to marry anyone else.
The second delegate observed that it seemed unlikely that [Ms A]’s family would have been unaware of their relationship for two years as it appeared that they had been together in public given community attitudes to the behaviour of young women it seemed likely that someone would have informed her parents of what they had seen. The applicant said that [Ms A] used to wear a veil. Later in the interview the delegate noted that his previous statements suggested a number of people were aware of the relationship because they sometimes met in public. The applicant said that to begin with only one of his friends knew about the relationship, but others became aware towards the end of the relationship.
The second delegate asked the applicant what happened after [Ms A]’s father found out about their relationship. He said that he told [Ms A]’s father that they were in love, but her father told him to find someone else as he was poor and could not marry [Ms A]. The second delegate noted that the applicant’s earlier evidence suggested this had occurred in January 2012 and asked if anything had happened after that time. He said that [Ms A]’s father came to his house about a week after [Ms A] died and threatened to kill him because he was responsible for her death. He was not at home at that time. He encountered [Ms A]’s father a third time when he was walking, but he had run away. He also said that [Ms A]’s father had filed a case against him, and the police came looking for him. When asked for the nature of the charges, he said that it was related to [Ms A]’s suicide and the police had come because her father was very powerful.
The second delegate asked if anything had happened after the applicant left Bangladesh. He said that his family had told him that people associated with [Ms A]’s father had come to their home and threatened to kill him when he returned.
The applicant said that he and his family supported the BNP. He did not vote, but he attended meetings and rallies for the party. The delegate noted that he had not mentioned his support for the BNP when asked about his political affiliation during his entry interview. He said that he had never been directly involved in politics, but when there were election rallies people were paid to attend, so he participated, but he did not attend any other meetings.
Following the interview, the applicant provided a statement dated 18 August 2021. He said that he had been confused during his interview and had not fully understand some of the questions he was asked. He said that he left school in 2009, not 2003 as indicated during his entry interview. He had first met [Ms A] when they were at school together. About two months after he left school, he contacted [Ms A] through a friend who was still attending the school. They passed messages through a mutual friend and in 2010 they arranged to meet at the [a] market. During that meeting they agreed to begin a serious romantic relationship. Following that they mostly met at the house of a mutual friend, but sometimes met in the market or at the park. [Ms A] told her parents she was going to visit friends or relatives. She wore a veil when they met and they maintained an acceptable distance apart while in public. The meetings were irregular but usually occurred about two or three times a month. They were mostly together for only 10 or 15 minutes, but on one occasion they were at the market together for about two hours.

The applicant said that he could not recall the exact date that [Ms A] was married or when she died, but to the best of his recollection it was in about March 2012. He left Bangladesh about one or two months later.
The applicant said that [Ms A]’s father and the police came to his home looking for him about one or two months before he left Bangladesh. He was in hiding after the police visit. About a month before he left Bangladesh, he saw [Ms A]’s father in the distance when he was out walking and quickly returned to his friend’s house.
The applicant said that he had recognised [Ms A]’s brothers when they saw each other in [Country 1] because they came from the same area in Bangladesh and had mutual friends. He was in [Country 1] for about four months before coming to Australia.
The applicant said that his family had told him that [Ms A]’s father was still enquiring about his whereabouts and threatening to kill him.
On 18 August 2021 the applicant provided a lengthy submission prepared by his former representative
The applicant’s representative submitted that his account of his relationship with [Ms A] was plausible and credible and any inconsistencies in his evidence were minor or the result of the difficulties associated with providing evidence in protection cases. With regard to the delegate’s concerns about [Ms A]’s ability to meet the applicant without supervision, it notes a report which states that women in South Asia have gained significant freedoms over the last three decades. It adds that while most studies show a gender bias against adolescent girls in practically every aspect of daily life, experiences vary greatly depending on factors such as the attitudes of individual families.
The submission notes that contrary to the delegate’s suggestion during the interview, the applicant had stated during his entry interview he supported the BNP. The submission provides an overview of problems faced by members and supporters of the BNP in Bangladesh and argues that the applicant would be at risk of harm on return to Bangladesh because of his support or perceived support for the BNP.
The submission also argues that the applicant would be at risk of harm on return to Bangladesh because of his membership of the particular social group of failed asylum seekers who have spent time in a western country. It reviews a number of human rights abuses in Bangladesh. It also refers to reports on comments by Prime Minister Sheikh Hasina in 2015 calling for punishment of people who depart illegally because they taint the reputation of the country and notes a report on an attack on a failed asylum seeker who returned to Bangladesh sometime in 2020 after five years in Australia. The attacks appears to have related to his family’s political history.
The submission also claims that the applicant would face threats to his capacity to subsist, including denial of the ability to achieve a basic level of subsistence. This appears to be related to the claims regarding his problems with [Ms A]’s father, his association with the BNP and his status as a failed asylum seeker who left the country illegally and has spent time in Australia.
The second delegate found the applicant’s claims regarding his relationship with [Ms A] lacked credibility. She accepted that the applicant had left Bangladesh illegally and that he was a low-level supporter of the BNP, but after considering advice from DFAT and others found that he did not face a real chance of facing serious or significant harm for those reasons.
Evidence provided at the hearing
At the hearing I began by explaining to the applicant that I would be conducting a joint hearing for the two applications currently before the Tribunal. The applicant did not object to this course of action.
I asked the applicant what kind of school he had attended and when he completed his studies. He said that he attended a religious school from 1998 until 2009 (from the age of [age] to the age of about [age]). I noted that this was at odds with the information in the certificate of attendance he had provided to the Department, which stated that he had attended school until 2002 (when he was about [age] years old). He said that the certificate had been provided by his family and he did not know why it said that he had left school in 2002. I observed that it appeared that either the certificate was not genuine or the 2009 date was not correct. He said that the certificate was genuine and 2009 may be incorrect.
The applicant said that after leaving school he helped his father on the farm. This was the only work he did in Bangladesh. He lived with his parents who sometimes gave him pocket money, but he was never paid a wage. He had no savings prior to leaving Bangladesh.
The applicant said that he had left [Country 1] illegally without a genuine passport. He said that a friend had paid [amount] taka (about $1,400 at current exchange rates) to a smuggler or broker so that he could travel to [Country 1]. He planned to stay in [Country 1] and find work but left because he encountered [Ms A]’s brothers and feared that they would harm him. I observed that it appeared that he had arrived with no money and worked briefly at a low paying job and asked how he had paid for his trip to Australia. He said that a friend who he knew from Bangladesh had paid the fee of [amount] ($2,300 at current exchange rates).
I advised the applicant I had some concerns about the claim that he had never held a genuine passport and that he had entered [Country 1] illegally as it was my understanding Bangladeshis were sometimes able to obtain work visas for [Country 1] and it appeared likely that it would have been cheaper for him to obtain a legal passport and a [Country 1] visa than use a people smuggler. He said that he had not have time to make these arrangements.
I noted that the applicant had previously stated that [Ms A]’s family was wealthy and asked for more information about her father and his attitudes. He said that her family was very wealthy and well connected with business interests in many cities in Bangladesh. When asked, he said that her father was a very religious man. However, when I observed that this suggested that he would hold traditional conservative views in relation to matters such as how his daughter should behave, he said that he did not know whether [Ms A]’s father was religious. I observed that he appeared to have changed his evidence and added that it seemed likely that he and [Ms A] would have discussed her family’s views on these matters if they had been in a relationship for two years. He said that they had never discussed her father’s views or attitudes.
I observed that it appeared that [Ms A]’s family was well-known in the local area, which suggested that he would have known who they were. He said that this was correct. I asked why he had told the second delegate that he did not know [Ms A]’s family name and was not aware of her family background until after he proposed. He said that he had been stressed at the time and had forgotten things. Later in the hearing he said that he might not have understood the question or there might have been a problem with the interpreting and added that he had not known [Ms A]’s full name or family background when they were at school or when they first met at the market. Exactly when he learned about her family background remains unclear.
I noted that the applicant had given differing accounts of when and where he and [Ms A] first met and asked for clarification. He said that they first met at school and that they had confirmed their relationship when they met at the market. I asked for more information about their relationship at school. He said that they used to talk and developed a liking for each other. I advised him that based on my understanding of the situation in Bangladesh I had some difficulty accepting that a religious school would permit interactions of that kind between girls and boys. He said that they were in different classrooms, but they used to talk at the end of the school day. I also advised him that I found it somewhat unlikely that the daughter of a wealthy businessman would attend the same school as the son of poor farmers who lived in a village located some distance away. He said that maybe [Ms A] would have attended another school after she left the madrassa.
I observed that it appeared that the applicant had left school in about 2002 and he had not seen [Ms A] again until about 2010 when they met at the market. He said that he was telling me what he could remember and there could be some confusion. I advised him that while I acknowledged the difficulties associated with recalling events in the past, I found it very unlikely that he would not remember whether he left school at the age of [age] or at the age of about [age] and also unlikely that he would not recall whether he first met [Ms A] about a year before their meeting at the market or about seven years before that meeting. The applicant made no comment.
I observed that if the applicant had left school at the age of about [age] as he now appeared to be claiming, this suggested that [Ms A] was about [age] at that time and it appeared that they had not met again until seven or eight years later. I asked how the meeting in the market in 2010 came about. He said that one of his friends had decided it would be a good idea for him and [Ms A] to meet and had contacted a friend of [Ms A]’s to arrange the meeting. I asked why his friend had decided to make these arrangements. He then said that [Ms A] had asked his friend to make the arrangements.
I noted that the applicant had claimed that he and [Ms A] had met numerous times over a two-year period after 2010, but he had given different accounts of where they had met. He initially spoke about meeting in a market or near shops, but in written and oral submissions provided with his second application he spoke about meeting at the house of a friend. He said that he knew [Ms A] at school, then they met in the market. After that they sometimes met at his friend’s house and sometimes in other locations. I asked the applicant why he had not mentioned his friend’s role in arranging his meetings with [Ms A] when he was questioned by the first delegate. He said that after travelling by boat to Australia he forgot everything for a long time. I noted that he had arrived in 2012 and the interview with the first delegate was in 2015. He said that he did not have notes and he could not recall past events.
I asked the applicant what [Ms A] was doing during the time they were in a relationship. He said that she was still attending school. I advised the applicant that it was my understanding that attitudes towards women and girls in Bangladesh meant it was unlikely that she would have had the freedom to meet him on numerous occasions as he claimed and also unlikely that her family would have remained unaware of their meetings for two years. He maintained that his claims were true.
I noted that the applicant’s earlier submissions suggested that he and [Ms A] had met in public places on numerous occasions and observed that it seemed unlikely that nobody had told her family that they had been seen together in the market. He said that she wore a veil so she would not be recognised. I noted that he had previously stated that [Ms A]’s father learned of their relationship after one of his friends saw them at the market, which suggested she was not always veiled. He said that she had briefly removed the veil on one occasion.
I noted that the applicant had previously said that he was saving money so he and [Ms A] could get married and run away, but it appeared that he did not earn any money and could not accumulate savings. He said that he had told [Ms A] he would get a job and save some money.
I asked the applicant if he and [Ms A] had met at any time after her father learned of their relationship. He said that his friend had spoken to her, but he had not had any contact.
I asked the applicant about his interactions with [Ms A]’s family after her father learned of their relationship. He said that about a week after learning of their relationship, [Ms A]’s father came to his house and told him he was a poor man and should forget about her. He went into hiding after this. After [Ms A] committed suicide and about two weeks before he left for [Country 1], her father chased him in the street and threw stones at him, but he escaped. He confirmed that he had not had any other contact with [Ms A]’s father or his associates before he left Bangladesh. He said that [Ms A]’s father had lodged a complaint with the police who came to his house when he was not there.
I noted that the applicant appeared to have given differing accounts of his interactions with [Ms A]’s family after they discovered he and [Ms A] were in a relationship. He said that he would not have left Bangladesh if he had not been experiencing problems.
I advised the applicant that while I had not yet reached a conclusion, I had considerable doubts about his claims regarding his relationship with [Ms A] and asked if he wished to comment or add anything. He said that he had nothing to add.
I noted that according to the applicant’s evidence during the second delegate’s interview, he had attended some BNP rallies because he was paid to do so. He confirmed that this was correct and that he did not have any other involvement in politics. I observed that this suggested that he had no real interest in politics and was only interested in the money. He said that this was correct. I observed that it appeared unlikely that he would have any involvement with the BNP if he returned to Bangladesh. He said that his family supported the BNP, but the main problem was that [Ms A]’s father was an important member of the Awami League, which was currently in power. I advised him that I was aware that some members of the BNP faced problems in Bangladesh, but I was not aware of any evidence which suggested someone who had limited involvement in the past would face problems. He said that his family followed the BNP while [Ms A]’s family supported the Awami League and this would cause problems.
I noted that the applicant’s former representative had claimed that he would be at risk of harm if he returned to Bangladesh because he had left the country illegally and would be returning as a failed asylum seeker who had lived in a western country. I asked who he believed would harm him for these reasons. He said that he feared [Ms A]’s family. I asked if anyone in Bangladesh would be concerned about the fact that he had lived in Australia and applied for protection. He said that only [Ms A]’s father would try to harm him. I observed that this accorded with information from DFAT, which in essence said that Bangladeshis were not at risk of harm on return because they had left illegally or sought protection in Australia. He said that he only feared [Ms A]’s father.
I noted that the submission provided by the applicant’s former representative claimed that he would be denied the capacity to achieve a basic level of subsistence if he returned to Bangladesh and asked why he would be prevented from achieving a basic level of subsistence. He said that he did not have any property or resources and he would have difficulty earning a living.
FINDINGS OF FACT
For the following reasons I found much of the applicant’s evidence to lack credibility.
Relationship with [Ms A]
In the first place, the applicant has given differing accounts of when and where he and [Ms A] first met. In submissions provided in support of his first application he said that they met in mid-2010 at a market. During his interview with the second delegate and in later submissions, he claimed that they met prior to 2010 while at school. He claims that this inconsistency arose because he did not always understand the questions he was asked. I do not accept this explanation. As noted above, he had professional guidance and the assistance of an interpreter when he prepared his initial statement and he confirmed that it was correct after it was read to him in his own language. He also had the assistance of an interpreter during his interview with the delegate. I do not believe that he would have stated several times that his relationship with [Ms A] began when they met in a market in 2010 if they had met at school in 2009 or earlier. I believe he changed his evidence when speaking to the second delegate because he could not recall his previous claims or because he was seeking to provide a more plausible explanation for the commencement of his relationship with [Ms A] than a chance encounter in a public market.
Secondly, even if I accept that the applicant and [Ms A] met at school in 2009 or earlier (which I do not), his evidence regarding how he and [Ms A] arranged to meet at the [a] market in 2010 was inconsistent and lacks credibility. In the statement dated August 2021, he said he contacted [Ms A] through a friend about two months after he left school in 2009, after which they passed messages until they arranged to meet at the [a] market in 2010. At the hearing he said that one of his friends had decided it would be a good idea for him and [Ms A] to meet and had contacted one of [Ms A]’s friends to arrange a meeting, but then said that [Ms A] had asked his friend to make the arrangements.
Thirdly, I do not accept that the applicant was at school in 2009. During his entry interview he stated that he left school in 2003. He later provided a certificate which states that he left school in 2002. In his protection visa applications, he claimed that he left school in 2009 and in the statement provided in August 2021 he said that the information recorded in his entry interview was incorrect as he did not leave school until 2009. At the hearing he initially stated that he left school in 2009, but then stated that the attendance certificate was genuine and that he may not have remained at school until 2009.
While some confusion about past events is common, I do not accept that that applicant would be unable to recall whether he completed his education in about 2002 at the age of about [age] or seven years later at the age of about [age]. I accept his evidence that the attendance certificate is genuine and that it accurately states that he left school in 2002. This means that he left school some eight years before he claims to have met [Ms A] at the market in 2010 and commenced a serious relationship and that his evidence regarding their relationship at school and the arrangements to meet in 2010 lack credibility.
In reaching this conclusion, I have noted that the applicant first stated that he remained at school until 2009 in the application lodged in 2015, before he claimed that he and [Ms A] were at school together. I have no idea why he provided this information in that application, but in light of the other evidence before me and the applicant’s responses when asked about his attendance at school during the hearing, I believe to be incorrect.
Fourthly, the applicant’s evidence regarding his relationship with [Ms A] after 2010 was confused and unpersuasive. He told the first delegate that they met in different locations including parks and near shops for an hour or two twice a week, that people who saw them in public would have been aware of their relationship and that they avoided problems by meeting in different places. During his interview with the second delegate, he claimed for the first time that he and [Ms A] sometimes met at the home of a friend or friends and that [Ms A] concealed her identity by wearing a veil. In the statement dated August 2021 he said that he and [Ms A] met two or three times a month, mostly at the home of a friend and usually for about 10 or 15 minutes. At the hearing he said that [Ms A] was veiled but was recognised by a friend of her father when she briefly removed her veil on one occasion.

I am not greatly concerned about the differing accounts of the frequency of the applicant’s meetings with [Ms A]. However, I find it unlikely that he would have told the first delegate that their meetings usually lasted for an hour or two if they only lasted 10 or 15 minutes as he claimed in submissions to the Tribunal. More significantly, I do not accept that he would have failed to mention that many of his meetings with [Ms A] were at the home of a friend or that she wore a veil to conceal her identity until his interview with the second delegate if those claims were true. I believe he provided differing evidence in relation to these matters because he could not recall his previous statements or in order to overcome problems with his earlier evidence. I note that he first claimed that [Ms A] wore a veil after the second delegate observed that it seemed unlikely that her parents would not have learned of their relationship for two years if they had been meeting in public.
Fifthly, the applicant has given differing accounts of the events which occurred after [Ms A]’s father learned of their relationship. In the application form dated 12 August 2015 he said that he had been beaten by [Ms A]’s relatives at some time. This claim was not repeated in his later submissions. In the statement dated 12 August 2015 he said that [Ms A]’s father had threatened him at the market prior to her death and had come to his home after her death and threatened to kill him, but he was not home at the time. During his interview with the first delegate on 16 November 2015 he said that [Ms A]’s father threatened him and warned him to stay away from [Ms A] on two occasions prior to her death, once at the market and once at his home. During his interview with the second delegate on 6 August 2021, he said that he had encountered [Ms A]’s father three times, once at the market before her death, once when he came to his house and finally when he met him in the street sometime later. At the hearing he said that [Ms A]’s father had come to his home about a week after he learned they were in a relationship and that he next saw him in the street about two weeks before he left Bangladesh. On that occasion her father threw stones at him and chased him, but he managed to escape.
I acknowledge that it is now over 10 years since the applicant left Bangladesh and it is not uncommon for honest applicants to provide differing accounts of past events and I would not have rejected the applicant’s claims regarding the problems he faced with [Ms A]’s father for these reasons alone. However, in light of the other significant problems with his credibility raised above, I find his inability to provide a coherent and reasonably consistent account of the problems he faced with [Ms A]’s father a further indication that he has not provided an honest or accurate account of their relationship or his reasons for leaving Bangladesh.
After considering all of the relevant evidence, I do not accept that the applicant was in a relationship with a woman called [Ms A] prior to leaving Bangladesh. While some of the matters raised above are relatively minor and considered in isolation would not have caused me to reject his claims entirely, others are more significant and the overall pattern of his evidence leads me to conclude that he has not provided an honest or accurate of his reasons for leaving Bangladesh. I believe that he concocted the claim that he was at risk of harm because of his relationship with a woman to support his application for protection in Australia. It follows that I do not accept that he was threatened by [Ms A]’s father or that [Ms A]’s father used his influence to have a false case of some kind lodged against him, or that the police came to his house or issued a warrant for his arrest as a result of these charges, or that he left [Country 1] because he was threatened by [Ms A]’s brothers who also resided in [Country 1], or that people associated with [Ms A]’s family continue to visit his family.
Association with the BNP
The applicant claims that he would be at risk of harm on return to Bangladesh because of his support or perceived support for the BNP. His claims relate mostly to the claim that [Ms A]’s father is an influential Awami League member and would use his influence to brand him as an active BNP supporter who was working against the Awami League and the government of the day. As discussed above, I do not accept that the applicant was in a relationship with someone called [Ms A] or threatened by his family for any reason. It follows that I do not accept [Ms A]’s father has used or would use his influence within the Awami League to make allegations against the applicant in regard to his political views or activities. I believe that this claim was also manufactured by the applicant to support his application for protection.
The applicant has consistently claimed that he and his family support the BNP. However, he has given inconsistent evidence regarding his involvement in BNP activities. He told the first delegate that he not been involved in any BNP activities but told the second delegate he had attended BNP rallies because he was paid to do so. For the purposes of this decision, I accept that he participated in some BNP rallies for money. However, it is clear from the evidence he provided at the hearing that he has minimal involvement in political activities and no little or no real interest in politics.
The applicant’s departure from Bangladesh
The applicant claims that he had to leave Bangladesh urgently because he was being threatened by [Ms A]’s father, so he paid a smuggler to obtain a fraudulent passport and arrange for him to leave Bangladesh illegally and travel to [Country 1]. As discussed above, I do not accept that the applicant fled Bangladesh because he feared harm from [Ms A]’s father. There is no evidence before me which suggests he was forced to flee urgently or that he would have been unable to obtain a legal Bangladesh passport for any reason. While it may be that he paid an agent or people smuggler to assist him to enter [Country 1] legally or illegally, I find the claim that he did not apply for a legal passport and instead paid an agent to obtain a fraudulent passport so he could leave the country illegally implausible. I might have been prepared to give him the benefit of the doubt and accept this claim if the remainder of his evidence was credible. However, this is not the case. I do not accept that he departed Bangladesh illegally.
Conclusions
After considering all of the evidence, I do not accept that the applicant was in a relationship with a woman called [Ms A] at any time, or that he experienced problems with anyone at any time as a result of a relationship with a woman in Bangladesh, or that he left Bangladesh illegally in 2012.
Despite some reservations, I accept that the applicant participated in BNP election rallies for payment at some time prior to his departure in 2012.
I do not accept that the applicant departed Bangladesh illegally without a genuine passport.
CONSIDERATION OF CLAIMS
Relationship with [Ms A]
I do not accept that applicant was in a relationship with a woman called [Ms A] before he left Bangladesh. I therefore do not accept that he faces a real chance of experiencing serious or significant harm on return to Bangladesh because he was in a relationship with a woman called [Ms A].
Involvement with the BNP
I accept that the applicant attended some BNP rallies during election time for money at some time before he left Bangladesh. However, there is no suggestion that he faced problems of any kind because of this before he left Bangladesh and, according to DFAT,[1] while current BNP leaders or activists may be at risk of arrest, violence or facing false charges, low-level actors are unlikely to attract the attention of the authorities unless they participate in violent protests. In these circumstances, I do not accept that there is a real chance that the applicant would experience serious or significant harm on return to Bangladesh because of his participation in BNP rallies prior to 2012.
[1] DFAT’s Country Information Report on Bangladesh dated 30 November 2022
The applicant has never claimed that he would become involved in BNP activities if he returned to Bangladesh. Furthermore, there is nothing in the evidence before me which suggests that he would do so. At the hearing he agreed that he had no real interest in politics and only attended rallies because he was paid to do so. I also note that despite the fact that the BNP has an active presence in Australia,[2] there is no suggestion that he has participated in any of their political activities. In these circumstances, I find that he does not face a real chance of experiencing serious or significant harm on return to Bangladesh as a result of involvement with the BNP. Nor is there anything in the evidence which suggests that he would be imputed with pro-BNP or anti-Awami League opinions such that he would face a real chance of suffering serious or significant harm on return to Bangladesh.
Status as an illegal emigrant and failed asylum seeker who has lived in the west
[2] DFAT’s Country Information Report on Bangladesh dated 30 November 2022
Prior to the hearing the applicant claimed that he would be at risk of harm on return to Bangladesh because he left the country illegally and would be returning as a failed asylum seeker who had lived in a western country. However, when asked who would harm him for these reasons at the hearing, he said that he only feared [Ms A]’s father. Nevertheless, I have considered his earlier claims.
As discussed above, I do not accept that the applicant left Bangladesh illegally. It follows that I do not accept that he faces a real chance of suffering serious or significant harm if he returns to Bangladesh for that reason. In any event, even if I accept that the applicant left illegally (which I do not) according to DFAT’s 2022 country information report, while there are isolated examples of high-profile individuals who travelled on fraudulent documents being detained and questioned on return, this does not appear to occur in most cases.
It has been submitted that the Bangladesh authorities would assume that the applicant had applied for protection because of the length of time he has spent in Australia and that he would therefore be at risk of harm if he returned to Bangladesh. In my view the possibility that the authorities would assume that the applicant had sought protection in Australia is speculation at best and I am not satisfied that this would occur. In any event, apart from the assertions submissions provided on behalf of the applicant, the evidence before me does not suggest that those who seek asylum abroad face a real chance of experiencing serious or significant harm at the hands of local authorities or anyone else if they return to Bangladesh. According to DFAT tens of thousands of Bangladeshis exit and enter the country every year and as far as they are aware most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
In considering the situation of failed asylum seekers, I have noted the comments by Sheikh Hasina in 2015. According to the article cited by the applicant’s former representative, the comments referred to people leaving illegally by boat to seek work or asylum abroad, during a time that the number of people leaving in this manner this was particularly high. No evidence has been provided which suggests Sheikh Hasina’s comments have resulted in ordinary Bangladeshi who have sought asylum abroad facing serious harm if they returned or were returned to Bangladesh since that time.

100. I have also noted the report on the failed asylum seeker who was beaten by a group of men when he returned from Australia. It appears that this attack was the result of political or personal problems particular to the person in question. As discussed above, I do not accept that the applicant was under threat for any reason prior to his departure from Bangladesh. And without intending to minimise the plight of the man referred to in the article, the fact that one failed asylum seeker was harmed on return to Bangladesh does not by itself mean that failed asylum seekers in general face a real chance of suffering serious or significant harm.
101. After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serous or significant harm on return to Bangladesh now or in the reasonably foreseeable future because of his status as a failed asylum seeker who has spent time in a western country.
The applicant’s capacity to subsist on return to Bangladesh
102. It has been submitted that the applicant would be denied the capacity to subsist if he returned to Bangladesh. This submission appears to relate to problems caused by the problems he claimed to face because of his relationship with [Ms A], his association with the BNP and his status as a failed asylum seeker who left Bangladesh illegally and sought asylum during the decade or so he has lived in Australia.
103. As discussed above, I do not accept that the applicant was in a relationship with a woman called [Ms A], or that he left Bangladesh illegally, or that he would be actively involved with the BNP if he returned to Bangladesh. It follows that I do not accept that he would be denied the ability to subsist for any reason associated with these claims. Furthermore, there is nothing in the evidence before me which suggests that the applicant would be denied the capacity to subsist because he has lived in Australia for over 10 years or because he sought protection while in Australia. I am not satisfied that the applicant would be denied the capacity to subsist on his return to Bangladesh for any reason.
104. Furthermore, when asked about this claim at the hearing, the applicant did not suggest that he would be denied the capacity to subsist for any of these reasons. He said that he would have difficulty earning a living as he did not have property or resources. Problems of this kind do not give rise to a claim for protection. I also note that according to the applicant, his family owns a farm where he worked prior to leaving Bangladesh, and he also has skills as a [Occupation 1], which suggest that he does have the capacity to earn a livelihood if he returns to Bangladesh.
Corruption and failure of protection
105. The applicant claims that the authorities in Bangladesh would fail to protect him from the harm he fears because they are corrupt. I accept that corruption is a problem in Bangladesh. However, this claim appears to relate mostly to the claim that [Ms A]’s father is a powerful businessman and thus able to manipulate local authorities to act against the applicant. As discussed above I do not accept that the applicant was in a relationship with a woman called [Ms A]. It follows that I do not accept that the authorities would fail to protection him for that reason. There is no credible evidence before me which suggests that the applicant would be unable to access protection Bangladesh such that he would face a real chance of suffering serious or significant harm if he returned.
CONCLUSIONS
106. After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious or significant harm for any reason if he returns to Bangladesh within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons set out in s 5J(1), or that he is a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm.
107. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

110. The Tribunal affirms the decisions not to grant the applicant a protection visa.
Roslyn Smidt
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1014

14 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness