1907521 (Refugee)

[2023] AATA 1726

1907521 (Refugee) [2023] AATA 1726 (13 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jyoti N Bharati (MARN: 0501219)

CASE NUMBERS:  1907521 and 2112485

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Penelope Hunter

DATE:13 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa in;

application 1907521, application for a Temporary Protection visa (Subclass 785) filed March 2016; and i.    

application 2112485, for a Safe-Haven Enterprise visa Subclass 790) filed 26 October 2020.ii.    

.

Statement made on 13 March 2023 at 1:07pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member of Bangladesh National Party (BNP) – particular social group – failed asylum seeker – threats of harm by Awami League supporters – friends killed – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 48A, 65, 91K, 411, 424A, 427, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of two decisions made by a delegate of the Minister for Immigration and Border Protection (Minister). The first is a decision made by the Minister on 12 May 2017 to refuse to grant the applicant a Temporary Protection (Subclass 785) visa (TPV) under s 65 of the Migration Act 1958 (Cth) (the Act). The second is a decision by the Minister to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV) made on 6 December 2021.

2. The applications have been considered jointly as the claims and evidence of the applicant are the same in each. The background to the applications is explained below.

   BACKGROUND

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] November 2012. He was initially considered an unauthorised maritime arrival as defined in s 5AA of the Act due the method of his arrival to Australia. The applicant was taken to Wickham Point Detention Centre where he was interviewed by a Departmental officer.

4. The applicant was previously granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act, as the applicant was thought to be an unauthorised maritime arrival. On 21 December 2015, the then Minister for Immigration lifted the bar pursuant to s 46A of the Act, and wrote to the applicant and invited him to apply for either a TPV or a SHEV.

5. In March 2016, the Department accepted an application for a TPV. On 12 May 2017, a delegate of the Minister refused the application, and the applicant was notified of the decision.

6. On 12 May 2017, the applicant applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 15 December 2017, the IAA affirmed the decision under review.

7. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an unauthorised maritime arrival due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1) of the Act) and the subsequent decision to refuse to grant the applicant a Temporary Protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

8. On 23 March 2019, the Department renotified the applicant of the delegate’s decision to refuse the first TPV application and consequently his review right to the Tribunal. On 28 March 2019, the applicant made an application for review to the Tribunal of that decision.

9. On 23 October 2020, the Department advised the applicant that his first TPV was invalid due to the effect of s 91K of the Act. The applicant was also notified that the Minister had lifted the 91K bar to allow him an opportunity to again apply for a TPV. The Department also lifted the s 48A bar against the making of a further protection visa application onshore following a protection visa refusal or cancellation.

10. On 26 October 2020, the applicant made an application for a SHEV. On 6 September 2021, a delegate of the Minister refused the SHEV application. A valid application for review of this decision was made to the Tribunal on 23 September 2021.

11. Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Accordingly, the applicant’s first TPV application was not subject to a bar under s 91K of the Act and was also a valid application. It follows that the applicant had also made a valid application for review of the delegate’s decision to refuse his SHEV of 12 May 2017.

12. In view of the above circumstances which have resulted in the applicant having two valid applications for review of two separate decisions made by delegates of the Minister, the Tribunal determined to combine the two reviews pursuant to s 427(2) of the Act.

    CLAIMS AND EVIDENCE

13. The applicant is a [age]-year-old male, born in [year], and claims to be a citizen of Bangladesh. He was born in [Village 1], [District 1], in Bangladesh’s Chittagong Division. He claims to be of the Muslim religion and an ethnic Bengali.

    Entry Interview

14. After arriving in Australia, the applicant participated in an entry interview with the Department [in] November 2012.

15. The applicant told the Department that he left Bangladesh for [Country 1] in 2010, and remained in [Country 1] from 2010 to October 2012.

16. In response to the question, ‘why did you leave your country of nationality?’ the applicant stated (in summary):

    i.In his village there are two parties who always fight with each other. The BNP and Awami League.

    ii.He supports the BNP and when they were in power it wasn’t that bad. But when Awami League came into power they started killing supporters and leaders of BNP. He was a member of the BNP.

    iii.His family members told him to run away to save his life.

    iv.His neighbour, [Mr A] was killed by Awami League supporters but he does not remember the date this occurred. He knows it was the Awami League who killed him because every time when something happens between the two parties Awami supporters kill and BNP supporters kill Awami League supporters.

    v.He left Bangladesh to save his life.

17. The applicant claimed that he left [Country 1] because where he used to stay there were Burmese Rohingya staying in the same apartment block. Some of these Rohingyas told him that if he went to Australia he would be able to earn more. He didn’t have a work permit in [Country 1] and he heard that the Australian government are nice and they will help him get a permit to live here.

18. The applicant declared he was not involved in any activities or protests against the government in Bangladesh.

    The TPV application

19. In his TPV application received in March 2016, the applicant claimed to have studied at primary school at the [Village 1] Primary School between January [year] and December [year] before commencing high school at [High School 1] in January [year]. He later withdrew from high school in December 2004. Whilst he was in [Country 1], the applicant advised he was working in [an industry] with [Employer 1]. In Australia, he has worked for [Employer 2] since August 2015. He claimed to have lived in Bangladesh until March 2010, and then in [Country 1] until October 2012. In the application form he also made the following claims (in summary):

    i.He left Bangladesh because the Awami league party killed two of his close friends and they created havoc in his area and they threatened him and his family continuously. He hid from them for a few days with high risk. If they had found him they would have killed him. The main reason they threatened him was because he was in opposition to them and seriously involved with the BNP. He left Bangladesh because of their constant threat and there was a high risk to his life to live in Bangladesh.

    ii.He left [Country 1] because he never had any legal documents to live there. The [Country 1] police used to harass him regularly. It was very difficult for him to live and do his job for survival without a visa in [Country 1].

    iii.He thought that if he returned to Bangladesh the situation would be worse nowadays. The current ruling party, the Awami League, were torturing, killing and murdering opposition party workers on a daily basis. As he was actively involved in the BNP party he is one of the most wanted persons for them in his area for torture and killing. It is highly dangerous for his life if he goes back to the country.

    iv.The applicant claimed that he had experienced physical harm several times in Bangladesh from the opposition group. He had left his local area before he departed the country as they continuously threatened that they would destroy his peaceful life. They tortured him mentally, he could not sleep, eat, study, or work because of his fear of their threats. His life was like a prison.

    v.He did not try to seek help or protection within Bangladesh. The police were also trying to harass him. He does not believe that the Bangladeshi authorities could assist him.

    vi.He did not try to move to another location within Bangladesh because the ruling party workers were all over the country. The situation did not change in another part of the country and his family asked him to leave as soon as possible.

    vii.If he returns to Bangladesh the Awami League will torture and try to kill him. He is one of the most wanted persons to them due to his opposing political activities. In his country currently thousands of BNP workers are in jail, tortured, injured by the police and government party workers. He used to protest against the government’s many unethical issues for the people. The BNP tried to establish a democracy and care taker government in his country but the current government do not allow any kind of freedom, like newspapers or voting. As a local leader he always used to gather people against government injustice. If he returns to his country, it would be a high risk to his life.

20. The applicant provided with his application the following documents to which the Tribunal has had regard:

    i.A copy of his Bangladeshi Character/Nationality Certificate dated [2016].

    ii.A copy his Bangladeshi Birth Certificate issued [November] 2012, and registered [January] 2008. The applicant’s date of birth is listed as [Birthdate 1].

    iii.A copy of his Nationality Certificate issued [2012].

    iv.An affidavit from the applicant’s parents dated 8 December 2012.

    v.A copy of the applicant’s NSW Photo ID.

    vi.A copy of the applicant’s immigration card.

    vii.A copy of the applicant’s interim Medicare card.

    viii.A copy of the applicant’s [Employer 2] work ID card.

    ix.Letter from [Mr B], President of the Bangladesh Nationalist Party, [Upazila 1] dated [December] 2012. 

    x.Pamphlet regarding a protest on 11 May 2013, Genocide in Bangladesh, organised by 18 Parties Alliance.

21. The applicant attended an interview with a delegate of the Minister on 16 March 2017. The interview was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant has provided to the Tribunal a copy of the decision record of the delegate. The Tribunal has reviewed the recording of the interview and is satisfied that the delegate accurately recorded the information presented by the applicant. In refusing the visa the delegate made adverse credibility findings in relation to the applicant, finding that he had embellished his claims to invoke Australia’s protection obligations as he was unable to provide a convincing narrative or answers to questions to substantiate his claims. The delegate also set out in their decision record the applicant’s following additional claims:

    i.At the age of [age] he had been selected by senior leaders of the BNP to be the local leader and secretary for the BNP in his village. He held this position for approximately 18 months and they had a local membership of about [number] people.

    ii.In his role the applicant would give speeches in small gatherings about maintaining their safety from Awami League supporters and other criminal elements in Bangladesh.

    iii.He would use the funds provided by local businessmen for the BNP to the hire venues and arrange transportation for meetings and demonstrations.

    iv.He protested against the Awami League on many unethical issues. In 2000/2001 he claimed that he was tortured and injured by the Awami League. He had a scar on his elbow which was the result of an incident with an Awami League supporter. He was specifically targeted because he was the local BNP leader. 

    v.Two of his friends were killed by the Awami League and a bomb exploded outside his home.

    vi.In 2001 after a violent demonstration near his village he was injured. He went into hiding for a few months and then travelled to [Country 1]. In 2001 he travelled to Chittagong and took a boat to [Country 2] and lived there for nine years. He stayed with friends and worked on a farm. He did not return to Bangladesh and arranged for a [Country 2] passport to be issued to him, then he travelled to [Country 1] in 2010.

    vii.He did not previously mention his stay in [Country 2] as he was warned not to say anything about it. His friend who took him to [Country 2] told him not to tell the authorities that he lived in [Country 2], as Muslims are frowned upon in [Country 2].

    viii.Since leaving Bangladesh his younger [brother] was questioned and beaten by the Awami League as to the applicant’s whereabouts. His brother was then threatened that if the applicant was seen then his whole family would be harmed. This was because of the applicant’s involvement in a 2001 demonstration.

22. On 17 December 2017, the IAA reviewed the decision to refuse the applicant’s TPV application. The applicant did not provide any additional submissions or material to the IAA. The IAA decision record is on the Department file, however the Tribunal has not had regard to the findings or reasons in that decision. In his submissions of 30 September 2022, the representative of the applicant objected to the IAA process. The Tribunal acknowledges that as per DBB16 v MIBP (2018) 260 FCR 447, the applicant is not a fast tracked applicant and the decision of the IAA is not a legally valid decision.

    The applicant’s SHEV application

23. In the Part C Personal Particulars form lodged on 27 October 2020, the applicant relevantly set out that he had family in Bangladesh in the form of his mother, father and younger [brother]. He claimed to have been living in [Village 1] until March 2010. From there he went to [Country 1] where he lived until November 2012. When asked if he had travelled to any other countries in the last 30 years, the applicant set out that he had been in [Country 1] between [March] 2010 and [October] 2012, and the reason for his visit was for safety.

24. In the visa application the applicant made the following claims:

    i.His parents had a small farm on which they grow [crop]. After completing the secondary school certificate he did not continue study because firstly there was no male member to assist his father with agriculture farming. Another reason was because he became active in local politics and joined and supported the BNP.

    ii.He inherited a political culture from his father. His whole family was and is supportive of the BNP from the early stage of the formation of the party.

    iii.When admitted to [High School 1] in [year], he started to participate in the political activities of the student wing of the BNP. Between 2000 and 2004, he met several local and state leaders of the BNP. Because of his presentation and boldness, the local BNP leader of the area of [District 1] chose him to work as the secretary of the local BNP Branch. The BNP gave him responsibilities to organise meetings of party workers and manage the party office. He was a student leader and he was also assigned to the BNP party office to organise cultural functions to raise funds for the BNP. 

    iv.Due to his effective social and political activities among the local community of [Village 1] and surrounding villages he became popular. In his meetings the majority of village people started to take part. For this reason the supporters, leaders and workers of the Awami League party of [Union 1], [Village 1] and [Upazila 1] made him a target. Many times they attacked the meeting place. They attempted to assault, torture and humiliate him and other BNP members. They attempted to kill him several times.

    v.He did not remember the exact date, but in September 2007, they attacked him and his fellow BNP workers when they were returning from party meetings at [Upazila 1], at about 8 pm at night. They reported the matter to the police but the police did not accept his petition for an FIR (First Instance Report) against the Awami League workers. He was asked to provide a witness and nobody would be a witness against the Awami League supporters. The police also asked for money to file an FIR.

    vi.In 2008, a group of Awami League supporters attacked his house by throwing a bomb. His house was damaged. The police did not give any genuine or reasonable protection. They did not accept his FIR against Awami League workers.

    vii.Before the December 2008 general election, the Awami League created an environment of fear everywhere in Bangladesh. They killed and tortured many BNP workers in his district. Everywhere there were protest marches against the autocratic policies of the Awami League, many BNP workers who participated in protest marches were killed and tortured.

    viii.He knows that two of his friends were killed. After the killing of his friends and the continuous threats on his life he escaped to [Country 2] and lived for a few months illegally. He did not remember the date but it was in 2009. He did not feel safe in [Country 2] and returned to Bangladesh at the end of 2009.

    ix.The political situation deteriorated in Bangladesh in 2009. The situation became violent and before he left in March 2010, hundreds of BNP workers were sentenced to jail. Many leaders were implicated in false criminal cases.

    x.He experienced harm in Bangladesh because he was one of the very popular workers in his area. Between 2004 and 2009 several times the Awami League supporters attempted to kill him. They tortured him because he opposed their policies and organised people to oppose them. He encouraged people to join the BNP Party. Once the Awami League local leader approached him to join their party, he declined to join the Awami League and because of that they were angry. He experienced harm several times, they threw a bomb and damaged his house. They always threaten his family members. Once they tried to kill his younger brother. They killed his two close friends.

    xi.If he were to return to Bangladesh, the Awami League Party would torture and kill him. The Awami League had formed an autocratic government. If he returns the authorities will implicate him in false criminal cases. They know he has been in Australia since 2012 and he will be a failed asylum seeker. The police will kill him in a cross fire as it is reported that hundreds of party workers of the BNP and the Jamaat-e-Islami were killed in cross fire. The Bangladesh authorities have an eye on any opposition groups leaders and workers in the country or overseas through the internet. If they find any Bangladeshi person acting against the Awami League or involved in any media or propaganda against it they can easily find them and prepare to arrest them at the airport.

    xii.They can detain him now because they think that he is more harmful for the party. They have their own workers who keep an eye on the activities of BNP workers in every town in Australia. He is an active political worker of the BNP in Australia.

    xiii.He did not seek any help from any authorities in his country as the Awami League had formed the government and the authorities would follow their directions. The police and local authorities only hear the voice of the leaders and supporters of the Awami League. No one would witness a report. The police are so corrupt that they do not accept any FIR without bribes and they always arrest the BNP supporters first at the advice of the Awami League leaders.

1. With his visa application the applicant submitted the following additional documents:

   i.Letter from [Mr C], [Position 1] of the Bangladesh Nationalist Party Australia Inc, dated [April] 2018.

   ii.Letter of employment from [Employer 2] dated 5 September 2017.

   iii.A copy of his NSW driver’s licence.

   iv.Media articles Human Rights Violation in Bangladesh (2008–2013) published by Justice Concern; Bangladesh: Violet Repression of Opposition, Human Rights Watch 17 January 2019; Spate of Bangladesh ‘Crossfire’ Killings of Rohingya, Human Rights Watch 18 September 2019; Bangladesh Events of 2019, Human Rights Watch.

2. The applicant attended an interview with the Department via video on 25 August 2021. The interview was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the application and his representative did not attend the interview. The applicant has provided to the Tribunal a copy of the decision record of the delegate. The Tribunal has reviewed the recording of the interview and is satisfied that the delegate accurately recorded the information presented by the applicant. In refusing the visa the delegate made adverse credibility findings in relation to the applicant finding that his evidence was confusing and inconsistent. The delegate also set out in their decision record the following additional information provided by the applicant:

   i.He was [a teenager] when he commenced the role of secretary of the BNP Branch in [District 1]. It was the general wing not the student wing.

   ii.He was only in the role for one year before he began to have issues with the Awami League and several months later he left Bangladesh.

   iii.He left Bangladesh because he and some other members were involved in a clash with the Awami League members/supporters and one of the Awami League was killed by the BNP. He and his friends fled as the Awami League was seeking revenge against them. Two of his friends involved in this incident also fled to [Country 1]. His two friends who he claimed in his visa application died, did not actually die but fled to [Country 1].

   iv.When asked if anything else had happened to him or he had been attacked the applicant said that he had not. He later corrected that he had been attacked but did not mention it because he had not sustained injury.

   v.It was not the case that he went to [Country 2] for a few months in 2009. He actually left Bangladesh for [Country 2] where he lived for a few months, before moving to [Country 1] where he lived for approximately four to six years before transiting through [another country] and arriving in Australia.

   The Tribunal review

3. The Tribunal determined to combine the two reviews pursuant to s 427(2) of the Act. It was also noted that the applicant had engaged the same representative in relation to both applications. On 29 August 2022, the Tribunal wrote to the applicant in respect of both of his review applications and invited him to attend a combined hearing, on 5 October 2022.

4. On 2 September 2022, the Tribunal received a response from the representative for the applicant in which it was claimed that the applicant wished to appear at the hearing by telephone. The Tribunal offered the applicant a hearing by video which was refused. The applicant provided no reasons for a telephone hearing. The Tribunal requested that the applicant appear in person, given the nature of the claims raised and complexity of the combined matters and to allow for the applicant to be present with his representative and the interpreter and for breaks to be provided if appropriate.

5. On 30 September 2022, the Tribunal received submissions from the representative for the applicant, which were also signed by the applicant. The submissions discussed both applications and set out the following information (in summary):

   i.The applicant claimed that from his arrival in November 2012, he had not been getting a reasonable opportunity to expand his arguments and correct information.

   ii.When he arrived in Australia the situation of the detention centre was unknown and he did not know English.

   iii.The applicant did not understand many of the issues related with his claims, or how important his interview was during his first interview with the delegate. During the first interview the applicant claimed that the Bengali interpreter did not tell the whole thing in English to the delegate. Misinterpretation developed and he failed to present relevant facts.

   iv.The applicant now wants to clarify his membership of the BNP. He did not carry any formal membership card since he arrived in Australia. When evidence of membership was required he requested that his parents send some reference letters. His parents organised a reference letter from the local BNP leader which was sent to Australia. The applicant agreed that it is common practice in Bangladesh to make a bogus letter but he refutes the allegation that he intentionally provided a bogus letter about his association with the BNP.

   v.He was associated with the BNP and took part in political activities such as protest marches, rallies and meetings organised by local leaders. He was actively involved. At that time there was a mass protest against the Awami League atrocities in Bangladesh, he was very young.

   vi.He fled to save his life, in around 2007 he was threatened by the local AL workers of [Union 1], [Village 1] and [Upazila 1].

   vii.When the atrocities of the Awami League workers and government increased to the level of danger point he went to [Country 2] where he lived for a few years before leaving for [Country 1]. He does not remember the exact year and months of living in [Country 2].

   viii.His brother was approached, beaten or threatened by the Awami League supporters. It is a fact that the Awami League supporters attacked the applicant’s house by throwing bombs and his house was damaged.

   ix.The details in his SHEV application are correct and whatever he told them during the interview was correct.

6. The applicant appeared before the Tribunal in a joint hearing on 6 October 2022 where he gave evidence and presented arguments about the issues that arise in both cases. The applicant was advised that the hearings for both cases would be combined in the hearing invitation. Neither the applicant nor his representative raised any issue with this approach. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The representative of the applicant was present for the hearing and provided submissions to the Tribunal. At the hearing the applicant produced a copy of his marriage certificate, date of marriage [October] 2021 to [Ms D], evidence of the Australian citizenship of [Ms D] and photographs from their wedding.

7. On 19 October 2022, the Tribunal wrote to the applicant and invited him to comment on certain information arising from both applications and his evidence at hearing, pursuant to the provisions of s 424A of the Act. On 31 October 2022, the Tribunal received a response. Where relevant the information sent for comment and the response of the applicant is set out below.

8. On 21 December 2022, the Tribunal wrote to the applicant and provided a copy of the updated DFAT Country Information Report: Bangladesh, 30 November 2022. The Tribunal drew to the attention of the applicant several paragraphs of the report for comment as set out below:

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

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

9. On 20 January 2023, the representative for the applicant provided two submissions which set out the following information (in summary):

   i.The applicant believes that low profile workers who are participating in demonstrations and rallies suffer more harm than high profile leaders. The proportionality of harm may vary.

   ii.It is a fact that the applicant is not a high profile leader. He never claimed to be a top leader of the BNP. There was a mass movement against the atrocities of the Awami League in Bangladesh, he participated in the protests. He left the country because of fear of persecution, now he is hiding in another country (Australia) due to genuine chance of persecution. He believes the fear from possible consequence justifies a claim for complementary protection.

   iii.The assessment by DFAT is prepared by information collected by the Department. It cannot be said that it is made on full or sufficient information about the political activities or culture of Bangladesh. The applicant does not agree with the assessment of DFAT that the BNP has lost support and reference was made to media reports that would be submitted to the Tribunal.

   iv.There is a general election in January 2024. It is not easy for the BNP to re-establish the same political front like in 2014 and rise again with full capacity.

10. On 20 January 2023, the applicant also submitted extracts of the following articles:

    i.Freedom in the World 2022, Bangladesh, Freedom House.

    ii.14 killed in Bangladesh Election Violence, 31 December 2018.

    iii.Extract of The State of Bangladesh 2019, unidentified author.

    iv.Awami League should look at itself in the mirror, Sahrab Hassan, Prothom Alo (undated).

    v.Election Commission dismissive of TIB report on polls, Senior correspondent bdnew24.com published 16 January 2019.

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.

15. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

16. 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.

    CONSIDERATION OF Claims and evidence

    Nationality

17. The applicant arrived in Australia by boat without any identity documents. The applicant has produced to the Department a copy of his Bangladeshi Nationality Certificate, copy of his Character/Nationality Certificate, his birth certificate and an affidavit of his parents. The Tribunal notes several discrepancies in these identity documents. Particularly, his birth certificate identifies him only as [applicant first name], at his Maritime Interview [in] November 2012 he claimed that his name was [applicant first name variant] born on [Birthdate 2], in his Character/Nationality Certificate he is known as [applicant full name]. The applicant has consistently claimed in his TPV application, his SHEV application and before the Tribunal that he identifies himself as [applicant full name], born on [Birthdate 1]. The Tribunal has also had regard to country information and considered the advice of DFT that it is not uncommon for documents relating to the same person to have different details recorded, and that this can be caused by poor record-keeping or poor clerical practices.[1] Therefore, despite these minor discrepancies, on the basis of the documents submitted and his oral evidence, it is accepted that the applicant is a national of Bangladesh. The Tribunal will assess his claims on that basis. The Tribunal further accepts that he does not have the right to reside in any country other than Bangladesh. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Bangladesh is the receiving country for the applicant for the purposes of s 36(2)(aa).

    [1] DFAT Country Information Report – Bangladesh, 30 November 2022, at 5.28

    Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

18. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

19. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

20. The Tribunal has had regard to the totality of the applicant’s evidence in both matters and the reasons he claims to have departed Bangladesh and why he alleges he cannot return, and the Tribunal is not satisfied that his claims are made out. The Tribunal found the applicant’s evidence in this matter unreliable, substantially inconsistent and illogical. Where the Tribunal discusses writing to the applicant about its concerns, this was done pursuant to the provisions of s 424A of the Act. Overall, the difficulties of the Tribunal with the evidence of the applicant are considerable and numerous as detailed below.

21. Firstly the applicant has provided inconsistent evidence about his family history. Firstly the applicant said at his Irregular Maritime interview [in] November 2012, that he supported his mother as she had no work and his father worked on other people’s farms and he earned minimal money. He claimed that with the money from the sale of their land he travelled to Australia. Then in his SHEV application lodged on 26 October 2020, he claimed that his parents had a small farm on which they grew [crop], and that he was unable to continue further study because there was no other male member who could assist his father in agriculture farming. When asked about his family at his Tribunal hearing on 6 October 2022, he said that his father had worked in the Middle East in [Country 3] for over 20 years.  The Tribunal had concerns that this information was not consistent with earlier written claims and when discussed at the hearing, the applicant said that his father would return home once each year. The Tribunal did not consider that the applicant’s response addressed the Tribunal’s concern and in order to provide the applicant with a further opportunity to comment the information from different sources was put to the applicant in writing in the Tribunal correspondence of 19 October 2022. In response the applicant appeared to adjust his evidence and claimed that all three circumstances were correct. He claimed that the family had pieces of farmland which were not enough to support the family, that some of this was sold to meet the expenses of travelling and also that his father had worked in [Country 3] for 20 years. His father was not living there permanently but was coming and going every year. The Tribunal is not persuaded by this explanation, it considers the claim that his father worked on other people’s farms for minimal money and the requirement of the applicant to support his mother, inconsistent with the information that his father worked each year for 20 years in [Country 3]. Further the inconsistent nature of the evidence demonstrates to the Tribunal that the applicant is not a reliable witness and will embellish even basic personal circumstances to achieve a positive visa outcome.

1. Secondly, it is considered that the applicant has provided inconsistent information regarding the political profile of his family. In his SHEV application lodged on 26 October 2020, he claimed that he inherited his political culture from his father, and that his whole family remained supporters of the BNP from an early stage since their formation in Bangladesh. When asked if his father or brother supported the BNP at his Tribunal hearing on 6 October 2022, the applicant told the Tribunal that they did not and that they did not get involved. Again, when the Tribunal wrote to the applicant on 19 October 2022 and invited comment on what the Tribunal considered to be inconsistent information, the applicant wrote in his reply r 31 October 2022that the correct response was that he inherited his political culture from his father and his family. He claimed that his father and family members have been supporting BNP party programs and policies since the beginning. He claimed that he was misunderstood by the Tribunal at the hearing and what he meant was that his father and brother did not get involved in party politics as leaders of the BNP. The Tribunal does not accept this adjustment of the applicant as to the nature of his response. The applicant was not asked by the Tribunal if his family were leaders of the BNP at the hearing, and at this time the Tribunal took time to later clarify his response. Again this inconsistency demonstrates to the Tribunal the unreliability of the applicant as a witness.

2. Thirdly, the applicant has provided inconsistent information about his manner of departure from Bangladesh, particularly whether he held a passport and was able to depart legally and whether it was legally with the use of a passport. At the hearing the Tribunal was unable to obtain clear information from the applicant about his previous use of a passport. He claimed that he had previously held one but disposed of it on the advice of an agent and that he could not remember when this happened. The Tribunal had difficulty reconciling this evidence with previous claims of the applicant and put information from those claims to him for comment following the hearing via letter on 19 October 2022. Particularly, it was noted that at his Irregular Maritime Arrival Interview [in] November 2012, the applicant claimed that he had travelled to [Country 1] on a passport with a valid tourist visa, and that he had thrown his passport away in [Country 1] once the visa expired. In his TPV application filed in March 2016, he claimed that he had left  Bangladesh illegally and that he had never had or used a passport. At his TPV interview with the delegate on 16 March 2017, he told the delegate that he got a [Country 2] passport in [Country 2] to travel to [Country 1] on a tourist visa via an agent. Then in his SHEV application lodged on 26 October 2020, he said that his passport was taken by the agent who organised his departure from Bangladesh, he had lived in [Village 1] until March 2010, from there he went to [Country 1]. In his comment in response dated 31 October 2022, the applicant said he had made it clear that he had a passport when he went to [Country 2] and he threw his Bangladeshi passport away when the agent told him it would be of no use when he went to [Country 1] by boat. The response provided by the applicant does not make things clear for the Tribunal, it offers again a different explanation for the use of the passport. The applicant now appears to be maintaining that he departed Bangladesh legally on a passport but entered [Country 1] without a passport or visa. This shifting explanation about his past methods of travel and the possession of a passport further illustrate the unreliability of the applicant as a witness and the lack of veracity of his claims.

3. Fourthly, the Tribunal was unable to reconcile the various claims of the applicant as to his role and membership of the BNP. At his Tribunal hearing on 6 October 2022, the applicant made several claims about his role and membership of the BNP, he stated that he had never taken out formal membership of the BNP although he had a role to recruit others to join up. When the Tribunal asked about the nature of his support for the BNP the applicant gave what the Tribunal considered to be conflicting descriptions initially stating that in his district there were a couple of ‘big brothers’ and he would follow them because he liked the party. The applicant later claimed that as a teenager he was the leader and he was ‘king’ in his area for the BNP and he was involved in everything. When the Tribunal discussed with the applicant its concerns that he could be a leader, yet at the same time be following ‘big brothers’ or other senior members, the applicant shifted his evidence and said that everyone in his village thought he was the leader because they did not know or see him following the senior members. The Tribunal found this response illogical. Further, the Tribunal put to the applicant at the hearing its concern that he claimed to be recruiting people, fundraising, giving speeches and organising a meeting for a party that he was not even a member of himself. The applicant responded that people in Bangladesh did not use forms, and that all the top people in the party knew him. The Tribunal was unable to accept this response as factual. The applicant’s claims arise from his association with a political party, it has documented leaders, representatives and districts. The BNP at period during which the applicant alleges his claims arose was one of the dominant political parties in Bangladesh. DFAT notes that political power in Bangladesh alternated between the BNP and the Awami League between 1991 and 2006.[2] It was not a small grassroots organisation with no structure or record keeping.

   [2] DFAT Country Information Report – Bangladesh, 30 November 2022, at para 2.3

4. Fifthly, the applicant also had difficulty reconciling the evidence presented by the applicant at hearing with the information he had previously provided to the Department, and also provided in two visa applications. The applicant was invited following the hearing to comment on this information in writing, and further address the Tribunal’s concerns about the conflicting information regarding his role and membership of the BNP. Particularly, it was noted that initially at his Irregular Maritime Arrival Interview [in] November 2012, the applicant claimed that he was a member of the BNP in Bangladesh. Then at his TPV interview with the delegate on 16 March 2017, he made claims that he was selected by the senior leaders of the BNP to be the local leader for the BNP in his village in [District 1] when he was [a teenager]. In his SHEV interview with the delegate on 25 August 2021, he had claimed that he was approximately [a teenager] when he was elected secretary of the local BNP Branch. The letter of support that the applicant has produced in both visa applications from the Bangladesh National Party, [Upazila 1] Thana Branch, dated [December] 2012, which claims he was a supporter, not a member, secretary leader or king. In his response dated 31 October 2022, the applicant said that he started to support BNP programs when he was very young. He also claimed that he joined the party [as a teenager] but he did not get any formal membership card, and he followed fellow young brothers who were strong supporters. It is not considered that the applicant has reconciled these various responses. It is not considered he has explained why he has at times claimed he was a member of the party and at others said he was not. The claim about the applicant about a lack of forms or membership card is not accepted. It is considered that if he was a member it would be documented whether or not he received a card and the various letters of support that the applicant has produced from the BNP in Australia could corroborate this. The fluctuating nature of the applicant’s role from following strong young brothers to being the king, leader and secretary is also not explained by the applicant. It is considered that the applicant has provided inconsistent information regarding his profile and his role, if any, within the BNP and the Tribunal is not satisfied that his claims are factual.

5. Sixthly, the various information which the applicant provided about the level at which he joined the BNP is unable to be reconciled by the Tribunal. At his hearing, the applicant initially gave evidence that he joined he party not the student wing. When questioned further and concerns were identified in his earlier claims the applicant adjusted his evidence to suggest that he was a student who was a leader for the party. The Tribunal wrote to the applicant following the hearing to allow him to provide further comment on these inconsistencies. It was identified to the applicant that when asked by the delegate during his TPV interview on 16 March 2017, if meetings he claimed he arranged for the BNP were student meetings the applicant said that they were not. Then in his SHEV application lodged on 26 October 2020, he made claims that on admission to secondary school he started to participate in the political activities of the student wing of the BNP and that he was a student leader. The response provided by the applicant on 31 October 2022 contradicted his evidence at hearing and said that he joined the student union which was associated with the BNP. He claimed that he would encourage other students to support the BNP associated student union. The Tribunal has difficulty reconciling the various claims of the applicant about whether or not he was involved at the student level. Again the supporting documents provided by the applicant from the Bangladesh National Party, [Upazila 1] Thana Branch, dated [December] 2012, do not corroborate that he was a student member of the BNP. It follows that the Tribunal is not satisfied as to the reliability of this claim or the reliability of his claims about his involvement with the BNP.

6. Seventhly, the Tribunal takes note that the information presented in the various claims made by the applicant varies as to the length of time he was involved with the BNP. There were inconsistencies in his evidence provided at the hearing on 6 October 2022. For example the applicant said that he had started following the BNP at the age of [age range], and that later that he left Bangladesh around [age range]. When later asked by the Tribunal what year he left Bangladesh he claimed that it was in 2007 or 2008 he could not remember. The Tribunal notes that in 2007 or 2008, the applicant would have been [an older age range]. Further inconsistencies arose in the information contained in the information he had presented to the Department in both his SHEV and TPV application. For example, during his TPV interview with the delegate on 16 March 2017, the applicant claimed that from the age of [a teenager] he held the position of leader in his village in [District 1] for about a year and a half before he departed Bangladesh. In his SHEV application lodged on 26 October 2020, the applicant set out claims that between 2004 and 2009, several times the Awami League attempted to kill him and also claimed that he was involved in incidents in 2007 and 2008. Yet, in his SHEV interview with the delegate on 25 August 2021, he is recorded as stating that he was only involved with the BNP for one year before he started to have issues with the Awami League, and several months later he left Bangladesh. When asked to comment on these matters in writing, in his statement of 31 October 2022, the applicant said that he could not remember the exact time of leaving [Country 2] and Bangladesh, that he was very active and he could not count whether it was one year or one-and-a-half years. It is considerably difficult for the Tribunal to accept that the applicant cannot remember when he departed his home country. The reliability of many of his claims regarding his involvement with the BNP are considerably undermined by the fact that the applicant may have left the country at the age of [a teenager], around 2000. If this is factual then clearly incidents he is claiming at the time of his SHEV application could not have occurred. Further, if the applicant was only active with the BNP as a child for one year, or even a year and a half, it is difficult for the Tribunal to accept that he would have any political profile. Once more the irreconcilable inconsistencies demonstrate for the Tribunal that the applicant is not a reliable witness and these claims about his involvement in the BNP and regarding his experiences in Bangladesh are not accepted as truthful.

7. Eighthly, when asked about his speeches at his Tribunal hearing on 6 October 2022, the applicant said that he would also give speeches about fundraising. He also said that he would raise money to support people’s families. When asked to provide an example the applicant told the Tribunal that he would collect small donations each month from around 100 people. The Tribunal discussed with the applicant at the hearing its concern that he had not previously raised charity fundraising as part of his BNP activities. The applicant claimed that he was not previously asked. Following the hearing the Tribunal wrote to the applicant and invited him to comment on what it considered to be inconsistent information about his involvement in financial matters for the BNP, it was acknowledged that in his SHEV application lodged on 26 October 2020, he wrote claims stating that he was assigned to raise party funds for the BNP. However, during his TPV interview with the delegate on 16 March 2017, when asked about financial contributions for the BNP the applicant had claimed that he did not, and ordinary people did not, pay money but the local businessmen would provide financial assistance to the BNP. In his response of 31 October 2022, the applicant claimed that he was assigned by his local leader to organise the donation of funds to the BNP and he collected some funds to hand over to them. The applicant’s final explanation does not reconcile the claim of whether the applicant was raising funds for the party or for charity work to support local people’s families. It also does not address the claim that ordinary people did not donate which was considered inconstant with his evidence that he had to fundraise via speeches for the party. The applicant also now claims to be assigned by his local leader when he made claims at the Tribunal hearing he was the local leader. For the Tribunal the irreconcilable nature of this evidence and the role of the applicant demonstrates that he had little actual knowledge of what a party supporter or member would undertake. The inconsistency further undermines for the Tribunal the reliability of his claimed experiences in Bangladesh.

8. Ninthly, when the Tribunal asked the applicant whether he had ever been harmed in the past in Bangladesh, his response was that he had been beaten on the shoulder at protests a couple of times but it did not bleed. The applicant was questioned as to this evidence was consistent with his multiple claims of harm, or particularly an attack he described in his SHEV application filed 25 October 2020. The applicant adjusted his evidence and said that he had been attacked six or seven time and that sometimes he went to hospital and also to the pharmacy. Also, when the Tribunal asked him about an injury to his left arm around the elbow the applicant said that he had sustained the injury on the boat to Australia and that he had surgery in 2017 at [a] Hospital which left him with the scar. The Tribunal asked the applicant about previous claims that this may have been related to injuries from Bangladesh and the applicant adjusted his evidence and so that the problem may have been related to his shoulder. The Tribunal wrote to the applicant on 19 October 2022 and invited him to comment further on particular inconsistencies in the information he had presented. Particularly it was identified that in his TPV application filed in March 2016, the applicant had made claims that he was tortured and injured several times by Awami League members. Then at his TPV interview with the delegate on 16 March 2017, he showed the delegate a scar on his left arm around the elbow and claimed that this was caused by an injury from the Awami League members in Bangladesh. In his SHEV application lodged on 26 October 2020, the applicant claimed that he was tortured by the Awami League and they attempted to kill him several times, and they attacked him and his friends while they were returning from a party meeting in [Upazila 1] in 2007. Aside from the fact that on some versions of his claims the applicant had departed Bangladesh prior to 2007, these experiences were difficult to reconcile with the evidence of the applicant at hearing on 6 October 2022. In response to the Tribunal’s concerns about the applicant’s descriptions of his claimed experiences of harm and the manner in which harm was sustained, the applicant offered in his statement in response that what he told the Tribunal at hearing was correct. Then again without any specifics as to a particular incident or manner of harm he offered that he was tortured and attacked by the Awami League and they attempted to kill him. In assessing the totality of the evidence it appears to the Tribunal that the applicant was untruthful about claims of injury to his left arm in Bangladesh, and he is further prepared to create and embellish past harms in an effort to assist his claims. Consequently the Tribunal does not accept his claims about past harm in Bangladesh.

9. Tenthly, the applicant has made various claims about the Awami League killing his friends and that Tribunal was unable to reconcile the details of any actual incident from the various claims and evidence he has presented. Initially at his Irregular Maritime Arrival Interview [in] November 2012, the applicant had said that in his neighbouring house a boy named [Mr A] was killed by Awami League supporters. In March 2016 when he filed his TPV application the applicant set out that the Awami League killed two of his friends. He repeated this claim in his SHEV application lodged on 26 October 2020, and again claimed that his two friends lost their lives and because of the Awami League. However, in his subsequent interview before the delegate in relation to his SHEV application, the applicant said that his friends were not actually killed and that they had fled to [Country 1]. In the letter produced in relation to both visa applications form the Bangladesh National Party, [Upazila 1] Thana Branch, dated [December] 2012, it is stated that two supporters, the applicant’s bosom friends, [Mr E] and [Mr F] were killed by cadres of the Awami League. Then none of the above information was consistent with the evidence provided by the applicant at the hearing on 6 October 2022, when the applicant said that a senior member in a neighbouring village called [Mr G] had been killed by the Awami League. [Mr G] was later identified by the applicant as the person in the letter of [December] 2012. The Tribunal was uncertain that the applicant was speaking of the same person and when the Tribunal asked for further details the applicant could not remember when or how he was killed. The Tribunal invited the applicant post hearing in its letter of 19 October to comment on the concern of the Tribunal that he had provided inconsistent information about his friends, their names or identity and their related experiences of harm from the Awami League in Bangladesh. In his response of 31 October 2022, it is not considered that the applicant addressed the Tribunal’s concern. The applicant offered only an incomplete response identifying the letter he produced of [December] 2012, and that he had heard that his friends [Mr E] and [Mr F] were killed by cadres of the Awami League. In this response the applicant has not identified his alleged friends correctly as per the letter and appears to set out that these are now three people. The inability of the applicant to address the concerns of the Tribunal and provide consistent evidence of his claimed experiences once more demonstrates to the Tribunal that they are not factual.

1. Eleventh, the Tribunal found the evidence of the applicant problematic as to the catalyst that led him to depart from Bangladesh and his role in those events. This is because the applicant said during his TPV interview with the delegate on 16 March 2017, that the decision to depart Bangladesh was associated with his participation in a protest march that he had been involved in around 2001. Then in his SHEV application lodged on 26 October 2020, the applicant set out that he was still in Bangladesh in September 2007 and he referred to incidents occurring in August and December 2008. In the following interview with the delegate in relation to his SHEV application on 25 August 2021 the applicant made claims that his decision to depart Bangladesh was related to him and other BNP members being involved in a clash with the Awami League supporters, and because one of the Awami League supporters was killed by a member of the BNP, the Awami League was seeking revenge against the applicant and his friends. At the hearing on 6 October 2022, the applicant when asked about the incident that led him to depart Bangladesh said a couple of people on his side in the BNP were already killed and that the Awami League was coming and harassing his family to give him up. In the Tribunal’s invitation to comment dated 19 October 2022, the Tribunal set out this various information and invited further comment on these inconsistencies. In the response dated 31 October 2022, applicant identified that what he told the Tribunal was correct and that the Awami League still came to his house to threaten his family and he referred to unidentified media reports of the Awami League harassing family members. This explanation does not address the Tribunal’s concerns which were specifically explained to the applicant as being related to the catalyst for his departure. In assessing the particular evidence of the applicant as to the incident or events that led to his departure from Bangladesh the Tribunal is confounded by what it considers the changing nature of his explanations. The inability of the applicant to maintain consistent details as to the timing of events, whether members of his party or the Awami League were killed or if it related to incidents of family harassment, again demonstrate the lack of reliability of the applicant and that his claims about his past experiences in Bangladesh may not be factual.

2. Twelfth, the Tribunal is also not satisfied that the applicant has provided consistent information about the experience of members of his family in Bangladesh and when relevant events are said to have occurred. At the hearing the applicant said his family was attacked prior to his departure. He later said that his family had not been harmed in the past. When this inconsistency was put to him the applicant adjusted his evidence and claimed that by attacks he meant things thrown at the house. There was also evidence that the things thrown at the house were rocks on the roof, and when the Tribunal tried to clarify this with previous claims, the applicant then adjusted it and the items thrown were sticks that looked like bombs and were smoking. When it was put to the applicant that there was a difference between a rock and a smoking bomb or stick, the applicant further adjusted his evidence and claimed not to be present when this occurred, he said he was away from the home. The applicant had to be reminded of his claim at the hearing that his brother had been abducted. In its letter of 19 October 2022, the Tribunal invited the applicant to comment on further information that he had presented regarding the treatment of his brother. That during his TPV interview with the delegate on 16 March 2017, the applicant had made claims that the Awami League had kidnapped his brother and subsequently released him in 2016. Then in his SHEV interview with the delegate the applicant instead claimed that his brother was not harmed and that the Awami League had tried to kill his younger brother while he was still in Bangladesh. In his response on 31 October 2022, the applicant did not address the Tribunal’s concerns regarding the nature of the events described and their timing. Instead he made an assertion that his brother was once abducted and introduced a further claim that he was beaten badly before he was later released. Due to the lack of the consistency the Tribunal is unable to accept any of the applicant’s claims regarding the threats or harm to his family at the hands of the Awami League are credible.

3. Thirteenth, the Tribunal also found the evidence of the applicant problematic as to whether he had sought the assistance of the authorities. His evidence at hearing was considered inconsistent as when the applicant was asked whether he had ever sought the assistance of the police, his reply to the Tribunal was that he would see the police coming to his village and he would ask them for help but that they did not do anything and they would only say to him that he could leave the village. He also suggested when further questioned that he might not have mentioned seeking police assistance earlier in his applications as it was his father that had approached the police. Following the hearing the Tribunal wrote the applicant on 19 October 2022, and invited him to comment specifically on what the Tribunal considered as inconsistencies in his past information. For example in his TPV application filed in March 2016, the applicant set out that he did not seek help or protection from the authorities within his home country as the police were also trying to harass him. In his SHEV application lodged on 26 October 2020, the applicant claimed that he had tried to lodge an FIR with police in September 2007, and after a bombing of his house in 2008 but the police would not accept his petition against the Awami League. In his response of 31 October 2022, the applicant did not address the inconsistencies but provided a further version of the claim that he did not have confidence in the police or the local authorities and that they did not care or hear anything from the supporters of the BNP. The applicant has not resolved for the Tribunal whether he had or had not sought assistance in the past in Bangladesh, or whether he was harassed by the police. The Tribunal also had difficulty with the fact, as was discussed with the applicant at hearing that at some of the time he claimed that the police would not act due to political influence the BNP were the ruling party in Bangladesh. Although the applicant conceded to the Tribunal that this may have been the case he adjusted his evidence to assert his village was full of Awami League. The inability of the applicant to address his involvement with the police and the discrepancies in his claims further demonstrates for the Tribunal that he is not a reliable witness and consequently his claims about his experiences in Bangladesh and whether he sought assistance from the authorities, or that they would harass him, were not factual.

4. Fourteenth, the Tribunal found inconsistencies in the evidence and claims of the applicant as to whether he had attempted to relocate to another part of his home country to seek safety. When questioned about relocating or moving to avoid harm at his tribunal hearing on 6 October 2022, the applicant said that he had tried to relocate and had gone to Chittagong and then after two or three weeks he went to Dhaka. The Tribunal wrote to the applicant on 19 October 2022, and invited the applicant to comment further on this response and his earlier evidence. Particularly it was note that the applicant set out in his TPV application file in March 2016, that he had not attempted to move to another part of the country to seek safety.  Then when questioned by the delegate in relation to these claims at interview on 16 March 2017, he told the delegate that he moved to Chittagong some time in 2001. In his later SHEV application lodged on 26 October 2020, in response to the questions in the application form he did not claim that he had moved, or tried to move to another part of his country for safety. His response of 31 October 2022, did not address what the Tribunal had identified as an inconsistency in this information. Instead the applicant claimed that when he tried to relocate he failed, he moved to Chittagong and then Dhaka, and then finally for his own safety he left the country. The Tribunal considers if the applicant had actual experiences of attempts at relocation he would be able to provide consistent evidence of his attempts and also details of what happened during these experiences.

5. Fifteenth, it is of fundamental concern for the Tribunal that the applicant has not provided consistent details of when he departed Bangladesh. As discussed above, at the Tribunal hearing on 6 October 2022, when asked how old he was when he got to [Country 2], the applicant said that he was about [a teenager]. At the hearing the applicant claimed that he was only there for a month. He further stated that he could not remember the year that he departed Bangladesh, maybe 2007 or 2008, and the agent told him not to say he had been to [Country 2] when he arrived in Australia as he would be sent back. The Tribunal invited the applicant to comment on what it considered inconsistent regarding his date of departure in its letter of 19 October 2022. It was noted that during his Irregular Maritime Arrival Interview [in] November 2012, he did not disclose any past travel to [Country 2]. The travel to [Country 2] was not disclosed in his TPV application filed in March 2016. It was then in his interview with the delegate in March 2017 he claimed that he left Bangladesh for [Country 2] in 2001 and he stayed there for a long time, nine years working on farms until he travelled to [Country 1] in 2010. Then in his SHEV application lodged on 26 October 2020, the applicant claimed that he had departed Bangladesh for [Country 2] in 2009 however he returned to Bangladesh in 2010. In the following SHEV application interview with the delegate on 25 August 2021, the delegate records that the applicant said that when he left Bangladesh he went to [Country 2] where he lived for a few months before moving to [Country 1] and living there for approximately four to six years. In the submissions received by the Tribunal on 30 September 2022, it is claimed that the applicant lived in [Country 2] for a few years before leaving for [Country 1], but that he did not remember the exact years and months when living in [Country 2]. In his response of 31 October 2022 that he had travelled from Bangladesh to [Country 2] and then [Country 1]. The applicant had been informed that the inconsistency in the information was important because the Tribunal may consider that he had not given consistent information as to his whereabouts prior to his arrival in Australia. The Tribunal’s concerns on this issue go to the very core of the applicant’s claims. If the applicant left the country when he was [a teenager] he would not have been present in the country for any of the events he claims happened after this date. On another version of his claims he would have been in the country between 2001 and 2006 when the BNP was the ruling party not the Awami League as he claimed. The Tribunal can accept that the applicant may not be able to recall with precision the date he departed but for there to be such discrepancy as to the number of years he was out of Bangladesh and his whereabouts during that period demonstrates to the Tribunal the lack of reliability of his claims.

6. Sixteenth, following on from the above concerns not only can the applicant not provide consistent information about when he departed Bangladesh the Tribunal is without certainty as to his whereabouts following his departure. It is noted that during his Irregular Maritime Arrival Interview [in] November 2012, the applicant claimed to have lived in [Country 1] between 2010 and October 2012. In both his TPV application filed in March 2016, and the SHEV application lodged on 26 October 2020, the applicant set out that he had departed Bangladesh in March 2010 and lived in [Country 1] until October 2012. When interviewed in relation to these applications by a delegate the applicant has provided different information. As set out above, he told the delegate in March 2017 that he was in [Country 2] for nine years before travelling to [Country 1]. In his SHEV Interview on 25 August 2021, the delegate records that the applicant said that after [Country 2] he moved to [Country 1] and was living there for approximately four to six years. When the Tribunal attempted to clarify this information at the hearing the applicant gave evidence that he had lived in [Country 1] for four or five years prior to his departure to Australia. Upon being given a further opportunity to provide comment in writing following the hearing, in his response of 31 October 2022 the applicant provided a new timeframe and stated that he had lived in [Country 2] for nearly two months, and in [Country 1] for more than three years but that he did not remember the correct date of departure from either country. The Tribunal accepts that the applicant may not be able to remember the correct date of departure. It is not accepted that the applicant cannot correctly remember whether he spent two months or nine years in [Country 2], or that he cannot remember whether he spent two years or six years in [Country 1]. The inability of the applicant to consistently account for his whereabouts prior to his arrival in Australia further illustrates to the Tribunal the unreliability of the applicant and his claims.   

7. Seventeenth, at his Tribunal hearing the applicant consistently raised claims regarding experiences of his cousin [Mr H], who he claimed had to return to Bangladesh from Australia following an unsuccessful claim for refugee status. The applicant maintained this cousin was involved in everything in his local area involving the BNP at the same time as him. The applicant said his cousin could not remain in Bangladesh due to harassment and recently had to leave again. The applicant also introduced the claim that the return of his cousin had created further interest from the Awami League in the applicant and his family, increasing the danger if he were to return. The Tribunal was concerned by the introduction of a claim by the applicant that he had a cousin in Australia, and in particular someone who shared his experiences and raised this with him at the hearing. Following the hearing the Tribunal invited the applicant specifically to comment on the absence of any reference to his cousin in the applicant’s previous claims in either application. The Tribunal identified the information provided during his Irregular Maritime Arrival Interview [in] November 2012 in which he claimed that he did not know anyone in Australia. Additionally, his cousin, [Mr H], was not listed as a friend, acquaintance or family member in Australia in either his TPV application or his SHEV application. In his response of 31 October 2022, the applicant set out that [Mr H] was his best friend and that when he went back to Bangladesh he was threatened by Awami League cadres. The applicant also provided a copy of the NSW driver’s licence of [Mr H name variant] born [date]. While the Tribunal may accept that the applicant had a friend in Australia by the name of [Mr H], who was also from Bangladesh and arrived in Australia by similar means. It does not accept that this individual was his cousin, or that [Mr H] lived in the applicant’s town and shared his experiences. Consequently, given this concern and the late introduction by the applicant of claims arising from this cousin, and the overall concerns of the Tribunal about the credibility of the applicant, the Tribunal places no reliance on the claim by the applicant that his family has recently faced increased harassment from the Awami League due to the return of [Mr H] or the applicant’s assertions that he would be harassed and harmed like his cousin were he to return to Bangladesh.

8. Eighteenth, the Tribunal is also not satisfied that the applicant’s claims about his involvement with the BNP in Australia are reliable or factual. It is noted that the applicant did not make any claims before the Department at the time of his TPV application that he was actively involved in BNP activities in Australia. It was only at the time of his SHEV application lodged on 26 October 2020, that the applicant claimed that he was an active political worker of the BNP in Australia. When questioned about this during the Tribunal hearing on 6 October 2022, the applicant told the Tribunal that he had not made any claims to be involved in the BNP in his TPV application as he was slowly getting to know everyone, and he had not met the people in [Suburb 1, Australia]. Yet it is noted that in the letter of support from [Mr C], [Position 1] of the BNP Australia, dated [April] 2018, that the applicant provided to the Department at the time of his SHEV application on 26 October 2020, the writer claimed that the applicant had since his arrival in Australia been actively involved in activities of the BNP under his leadership. When provided with a further opportunity to comment in writing on the Tribunal’s concerns about his involvement, in his response of 31 October 2022, the applicant asserted that he was involved in the activities of the BNP in Australia and that he was actively involved in programs and meetings. It is not considered that the response provided by the applicant at hearing or in his subsequent statement of 31 October 2022 addresses the Tribunal’s concerns. Further, when asked at the hearing to discuss the programs and meetings that he was actively involved in, and his association with [Mr C], the applicant could only provide vague and generalised evidence. He referred to a widely reported incident of a protest at the Opera House[3] which he claimed occurred two to three years earlier and that he would produce photos for the Tribunal. No further documents have been presented in his post-hearing submissions. The applicant also asserted that he had protested against the Bangladeshi government every couple of months in Australia and said he could have protested at least 10 times. However, other than his Opera House visit he has not provided to the Tribunal specific details of any other protests. Additionally, when the Tribunal asked the applicant about attendance at meetings he responded that sometimes they would go to the mosque, or a community meeting, they would also meet at Bangladeshi shops or the [Suburb 1] Club. To the Tribunal this is just a casual interaction, not an organised political meeting. The applicant even conceded at the hearing that he would interact with Awami League supporters in Australia the same way. At the hearing the Tribunal asked the applicant who was the [Position 1] of the BNP in Australia and the applicant claimed that there were a couple depending on the area. He claimed that he had received his letter for support that he had presented to the Department from [Mr I], who was a party leader who he would see at Ramadan. This is not the author of the letter the applicant had presented. Its author, [Mr C] who identified himself as the [Position 1] of the BNP Australia. It is accepted that the applicant may meet other members of the Bangladeshi community in Australia, at the mosque, in the shops and at the [Suburb 1] Club. It is also accepted that some of these members of the community may support the BNP to varying levels. This is the extent to which the Tribunal is satisfied of the applicant’s involvement with the BNP in Australia. Considering the inability of the applicant to provide specifics of his active involvement with party or its objectives, the fact that the applicant told the Tribunal that he has not become a member of the BNP Australia Pty Ltd, and the significant concern of the Tribunal regarding the credibility of the applicant, it is not accepted that the applicant regularly attends meetings or protests. It is accepted that a well-meaning friend in the community, [Mr I], may have assisted with the procurement of the letter from [Mr C], yet given the above concerns and that the applicant was not able to demonstrate to the Tribunal any knowledge of the author, the Tribunal places no weight upon it.

   [3] ‘Protest in Sydney against Hasina Wajid’, The News (Pakistan), 30 April 2018, CXBB8A1DA29972

1. Nineteenth, the Tribunal is also not satisfied that it can place reliance on other documentary material produced by the applicant. At his hearing before the Tribunal on 6 October 2022, the applicant was asked about the leaflet he presented to the delegate at his interview on 16 March 2017, about a protest organised by the 18 Parties Alliance (the coalition which was at the time led by the BNP). The applicant told the Tribunal that it related to a protest in his hometown in Bangladesh in 2001. The Tribunal notes that the leaflet contained within the Department file documents that the protest in question was staged, not in Bangladesh, but in Australia, in [Suburb 1], in May 2013. The applicant’s response further demonstrates to the Tribunal that he was not an active political worker of the BNP in Australia. The Tribunal provided the applicant a further opportunity to respond this information in its letter of 19 October 2022. In his statement in response on 31 October 2022, that he was active and relied on the letter of the BNP Australia Pty Ltd. The Tribunal has also considered the letter presented by the applicant in both applications from [Mr B], President of the Bangladesh Nationalist Party, [Upazila 1] dated [December] 2012. It describes attempts to implicate the applicant in a false case, which is not consistent with the claims of the applicant. It also details the killing of his bosom friends, whom the applicant had difficulty recognising in his evidence at hearing together with the manner of any harm that befell them at the hearing. The Tribunal was not satisfied that the applicant was able to identify the authors of the correspondence at the hearing, other than them being people who knew him. He also identified the notary as a BNP leader. This correspondence also makes reference to the applicant’s home being attacked many times. This latter event is not corroborated in the affidavit of support from his parents, and the Tribunal has also set out discrepancies in the applicant’s evidence on this matter. The character/nationality certificates that the applicant has presented assert that he has not taken part in any activities subversive to the state. This is difficult for the Tribunal to reconcile with the applicant’s claims of being the leader in his village, staging and participating in many demonstrations against what he claimed was the illegal Awami League government. While the authors of many of these documents may have been well-meaning, much of the information contained within undermines rather than corroborates the claims of the applicant. The Tribunal is also mindful of the comments of DFAT as discussed with the applicant at his hearing, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread in Bangladesh.[4] When invited to comment on this information at the hearing the applicant elected not to provide a response. It follows that the Tribunal is unable to place weight on the documentary evidence discussed.

   [4] DFAT Country Information Report – Bangladesh, 22 August 2019 at 5.39

2. Twentieth, the applicant demonstrated at the hearing limited knowledge of the BNP, its policies and ideologies. For example the Tribunal asked the applicant at the hearing if he recalled any reasons he attended protests in Bangladesh and he offered the explanation that “we were protesting because they (the Awami League) do not like us. If we do something, they do not like it so we were protesting against that.” In commenting on his liking for the BNP the applicant offered that they did not kill people. He said that the BNP tried to support people and was caring for people. Additionally when asked about his role with the BNP in Australia the applicant described it as “love for the party”. The Tribunal did not consider these comments as reflective of the beliefs of an individual who had risen to a leader and who was an influential person in attracting members to the BNP and arranging protests. His vague and general comments indicated to the Tribunal a lack of any genuine association.

3. As many of the claims of the applicant relate to matters that may have occurred more than a decade ago the Tribunal is careful in the weight that it places on inconsistencies and other unfavourable credibility concerns when making adverse findings. The Tribunal has also considered the submissions of the delegate that the applicant was unable to elaborate on claims at his Irregular Maritime Interview or had interpreting issues at his TPV interview. The Tribunal has listened to a recording of both interviews and is not satisfied that this claim is made out. Further, the information provided by the applicant during his SHEV application remains inconsistent as discussed above with information provided to the Tribunal. In this matter, the Tribunal’s adverse credibility concerns for the applicant are so extensive and numerous, as well as being contradicted by supporting documents and submissions he has relied upon, that when cumulatively considered, the Tribunal is unable to provide the applicant the benefit of the doubt. The Tribunal is not satisfied that he is reliable or that his claims regarding his experiences in Bangladesh are factual.  

4. It follows that the Tribunal does not accept the claims of the applicant that he was a member or supporter or leader or king or secretary or involved or affiliated with the BNP in the past in Bangladesh. It does not accept that he was a student leader or general leader. It is not accepted that he was ever involved in organising meetings, presenting speeches or protests on behalf of the BNP. The Tribunal does not accept that the applicant attended political gatherings, or that he was involved in local campaigns for the BNP. It follows that the Tribunal does not accept that due to his involvement with the BNP that the applicant was ever harmed, or that he was tortured, or that his family was harassed, or that his family home was bombed by the Awami League. The Tribunal is not satisfied that the claims of the applicant arising from his involvement with the BNP in Bangladesh are factual. It is not satisfied that he had any political profile in Bangladesh prior to his departure.

5. The Tribunal is also not satisfied that the applicant is an active political worker for the BNP in Australia or that he has been actively involved in any meetings or protests. The Tribunal does not accept that the applicant has established a profile of any interest in Australia as a BNP supporter or that he would be of any interest to the Awami League, the authorities or anyone else for this reason on his return to Bangladesh.

6. The Tribunal accepts that as a political party the applicant may prefer the BNP over the Awami League if he were to return to Bangladesh. The Tribunal has also considered the various media articles submitted by the applicant, regarding the treatment of the BNP. Upon the following the release of the updated DFAT country information report, the Tribunal sent this report to the applicant for comment, and in particular identified information about low-level members and those engaged in low-level activity. On a thorough review of the information before it, the evidence and claims of the applicant it is not satisfied as set out above that he was ever a low-level member or engaged in low-level activity. It is not satisfied that he has any profile. As the Tribunal does not accept that he has been politically active in Bangladesh in the past, it does not accept that he would actively support the BNP on return. The Tribunal further has regard to the assessment of DFAT that due to the patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. Tribunal finds that he does not have a real chance of serious harm from the Awami League supporters, the authorities in Bangladesh or anyone else because of his past or future support of the BNP on return to Bangladesh in the reasonably foreseeable future. His fears of persecution due to his actual or imputed opinion and being actively involved in the BNP in Bangladesh or Australia are not well founded.

7. The Tribunal then turned to consider the claims of the applicant as a failed asylum seeker. As set out in paragraph 47 above, the applicant has provided inconsistent evidence regarding his manner of departure from Bangladesh. The applicant has claimed on several occasions to have held a Bangladeshi passport in the past and it is not satisfied that any claims he has also made that he departed his country illegally are factual. The Tribunal does not accept that the applicant departed Bangladesh illegally, rather it finds that he used a passport in his own name that he later discarded either when he arrived in [Country 1], after it expired or before travelling to Australia.  

8. It is accepted that if his application or protection is refused he will be considered a failed asylum seeker. The applicant has claimed he would be subject to harm for this reason. The Tribunal has hard regard to the DFAT advice which has remained consistent in both the 2019 and 2022 Country Information Report that most returnees including failed asylum seekers are unlikely to face adverse attention regardless of whether they return voluntarily or involuntarily.[5] When asked to comment on the this information and the risk of harm he believed that being a failed asylum seeker would create at the hearing, the applicant said he had thought of returning but the experiences of his cousin a few years earlier was reflective of and had heightened the attention that he would receive from the Awami League. For the reasons discussed above the Tribunal does not accept that the applicant has a similar profile to his cousin/best friend [Mr H] or that his experiences are reflective of that of the applicant or that any weight can be placed upon them in relation to the applicant. The Tribunal has also considered the DFAT assessment that authorities in Bangladesh may take an interest in high profile individuals.[6] It is not accepted that the applicant would be a high profile individual. It is not accepted that the applicant has been actively involved with the BNP in Bangladesh or Australia in the past. Given these considerations and noting DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention, the Tribunal finds that the chance of the applicant facing serious harm upon return to Bangladesh as a failed asylum seeker is remote. His fear of persecution on this basis is not well-founded.

   [5]  DFAT Country Information Report – Bangladesh, 22 August 2019 at 5.30, and DFAT Country Information Report – Bangladesh, 30 November 2022 at 5.26.

   [6] As above.

9. Having considered the claims of the applicant individually and cumulatively, for the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Bangladesh for the reasons he has claimed in the reasonably foreseeable future and that his fear of persecution is not well-founded.

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

    Is the applicant a person entitled to complementary protection?

11. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

12. Having considered the applicant’s claims singularly and cumulatively, for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk that he would suffer significant harm.

13. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

14. 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 any of the criteria in s 36(2).

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a protection visa in;

    1. application 1907521, application for a Temporary Protection visa (Subclass 785) filed March 2016; and
    2. application 2112485, for a Safe-Haven Enterprise visa Subclass 790) filed 26 October 2020.

    Penelope Hunter
    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.

    …