1907568 (Refugee)

1907568 (Refugee) [2022] AATA 4146 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907568
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Gabrielle Cullen
DATE:5 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2022 at 4:06pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – child applicant born in Australia after refusal of parents and sister’s protection visa application – refusal affirmed on review – father’s political opinion – party supporter, member and leader – party previously in power, now in opposition – general insecurity and violence – returnees imputed to be wealthy – health conditions and unfamiliarity with culture – father’s credibility – inconsistent claims and evidence – political activity in home country and Australia – delay in applying for protection after change of government – country information – family’s long residence – sister now an Australian citizen and applicant close to meeting residence requirement – sister and applicant thriving academically, emotionally and socially – referred for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 195A, 417, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chen Shi Hai v MIMA (2000) 201 CLR 293
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 REASONS6
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 January 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Bangladesh, applied for the visa on 13 May 2015. He was born in Australia on [date] to parents who are Bangladeshi citizens.
His parents, [Mr A] and [Ms B], and his sister, [Miss C], previously applied for protection visas on 30 October 2012. The Department refused to grant them protection visas on 23 July 2013 and the Tribunal affirmed the Department’s decision on 28 November 2014[1]. As the applicant was born after the refusal of his parents’ protection visa applications by the Department, he was not included in that application. His sister, [Miss C], who was born in Australia on [date] has since been granted Australian citizenship.
[1] Information outlined in the Department decision indicates they applied for protection on 30 October 2012 in relation to the applicant’s father’s support for the BNP, with the application being refused by the Department on 23 July 2013 and this refusal being upheld by the Refugee Review Tribunal on 28 November 2014. The applicant’s father acknowledged at the Department interview this decision. The applicant also submitted with this application the representative’s submission for his parent’s application for protection.
The applicant claims to fear return as he is the son of a BNP leader and supporter, due to the general insecurity situation, as his family would be identified as wealthy due to having lived in Australia or the west, as he would not understand the culture and society of Bangladesh and as he has food intolerances and eczema.
On 18 November 2015 the applicant’s father was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 22 January 2016 on the basis that he did not accept that the applicant’s father is a BNP leader, that the applicant’s father intends to actively support the BNP if he returns to Bangladesh and that the applicant will be identified as a wealthy returnee upon return to Bangladesh. The delegate was not satisfied that the applicant’s fears relating to food intolerances and eczema meet the threshold for significant harm. The delegate was also not satisfied that the applicant has established that as a toddler, he would not be able to return to Bangladesh because he does not understand the society or culture and did not consider that a lack of understanding of society or culture meets the threshold for significant harm.
The applicant applied for review of the Department decision on 3 February 2016 and attached the decision of the Department.
On 20 August 2018 the Tribunal (differently constituted) wrote to the applicant via email advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 October 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal confirmed that the hearing invitation was sent to applicant at the most recently advised email address.
The applicant or one of his parents did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
The Tribunal (differently constituted) on 10 October 2018 affirmed the decision of the Department on the basis that it was unable to be satisfied on the evidence before it that the applicant has a well-founded fear of persecution or real risk of significant harm vis a visa Bangladesh
On 26 March 2019 the Federal Circuit Court ordered that this matter be reconsidered on the basis that the Tribunal (differently constituted) had not considered further claims raised at the Department interview including the applicant feared harm because he would be targeted as his family would be identified as wealthy due to having lived in Australia; he would not understand the culture and society of Bangladesh and he has food intolerances and eczema.
The applicant’s father appeared before the Tribunal on 12 September 2022 to give evidence and present arguments on behalf of the applicant. His mother gave evidence via the telephone.
The Tribunal accepts that at [age] years of age the applicant is unable to articulate fear. Therefore, as allowed for in Chen Shi Hai v MIMA, the Tribunal finds that the fear of his father and/or mother on his behalf is sufficient for the purposes of the refugee and complementary protection provisions.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
Criteria for a protection visa
The relevant criteria are outlined in Attachment A at the end of this decision.
CONSIDERATION OF Claims and evidence
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application of 13 May 2015, his Bangladeshi passport and Australian birth certificate.
·Statement by the applicant’s father on behalf of the applicant dated 13 May 2015 outlining his claims.
·Oral evidence from the applicant’s father provided at the Department interview held on 18 November 2015 and both his father and mother at the Tribunal hearing held on 12 September 2022.
·Submission dated 29 Janaury 2013 from the applicant’s father’s representative to the Department in relation to the applicant’s father’s claims for protection including country information.
·Letter from the Department to the applicant refusing his request for Ministerial Intervention under sections 417 & 195A of the Migration Act 1958 (the Act) dated 29 July 2019 for the applicant.
·Letter from the Department to the applicant’s father refusing his request for Ministerial Intervention under sections 417 & 195A of the Migration Act 1958 (the Act) dated 29 July 2019 for him and the applicant’s mother.
·The applicant’s school merit awards and school reports from 2021 to 2022 from [School 1].
·NSW Birth Certificate for [Miss C] (the applicant’s sister) born on [date]
·[Miss C]’s [School 2] reports 2022.
·Certificate dated 19 July 2004 from [University 1] to certify that the applicant’s father, [Mr A], has fulfilled the conditions prescribed by the University and had been admitted to the degree of Bachelor of [Subject 1].
·Certificate dated 9 October 2006 from [College 1] certifying that the applicant’s father, [Mr A] has fulfilled the requirements for a Certificate III in [Subject 2].
·Department of Foreign Affairs and Trade (DFAT), Country Information Report Bangladesh 22 August 2019.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicants’ claims
The applicant makes the following claims in the statement made on the applicant’s behalf by his father, attached to their protection visa applications dated 13 May 2015:
My name is [the applicant] and father name is [Mr A] and mother name [Ms B]. I was born in Australia on [date].
2. I have been living at: [Address 1] since I born. My father is political leader of BNP {Bangladesh Nationalist Party) in Bangladesh.
3. Present Prime Minister of Bangladesh Hasina Wajed is the leader of BAL {Bangladesh Awami league) alias AL. She is not an elected Prime Minister of Bangladesh but forcefully holding the power.
4. In 5th January 2014, a national election held for making a valid government for the country where AL only got 5% of the electoral vote.
5. As all the valid political parties did not take part on that day election due to fear of vote rigging by the Hasina and her part goons.
6. Hasina without taking mandate to role the country from Bangladeshi people is now in power. She has been sent many leaders in the detention from BNP and killing low profile BNP leaders and activists by her secret police and rapid action battalion.
7. Hasina and AL goons will kill me if I go back to Bangladesh as my father political background and association with BNP (Bangladesh Nationalist Party).
8. Hasina is now a new dictator in the Indian subcontinent who ruling Bangladesh without giving any basic freedom of her opponents. She doesn't care any political dialogue with the opposition parties, advised by the UN, USA, UK, EU and Australia.
9. My uncle and grandfather all are BNP supporters in Bangladesh and trouble from AL goons. If I go back to Bangladesh the AL Goons will harm as a son of BNP leader.
10. I have real fear of persecution in Bangladesh. If I go back to Bangladesh, present AL Government and it goons will harm me.
At the Department interview held on 18 November 2015 the applicant’s father reiterated the applicant’s claim to fear return for his son on account of his, the applicant’s father’s past political activity being a supporter of the BNP. He also referred to his son fearing return on the basis of being a wealthy returnee from the west having lived in Australia, he also said as the applicant had grown up in Australia, he would not understand the culture and society of Bangladesh and he has food intolerances as well as eczema. He also referred to the general insecurity in Bangladesh.
The applicant’s father said that because of his BNP politics if they could not find him, members of the current government and Awami League will harm and /or kidnap his children, including the applicant. He said the current Awami League government wants to attack leaders and grassroot members of the BNP and as a result family members of BNP supporters and activists can face harm. He also said as people think he is a wealthy person as they know he has been living in Australia or the west for a long time they will want to kill him and kidnap his son.
He said his uncle and father were BNP Supporters and his uncle died in [year] and his father was also dead.
The applicant’s father said he came to Australia to study in 1998 but also as there were many political problems. He said he returned to Bangladesh in 2001 and 2006. He said he and his son, the applicant, would be targeted as he was Joint Secretary of the BNP youth organisation in [District 1]. He said everyone in his village and Dhaka knows him because of his past BNP work. He said he held this BNP leadership position in [year] and [year].
As to hs future involvement he said he would have to be involved although he did not want to become involved. He said he did not want to be but would eventually have to be involved as everyday people would knock at his door and pressure him to be involved. He repeated that he did not want to be involved in BNP politics on return but because everyone knows him as a political leader he will be made to join and will have to return to meetings and protests. As to what would happen if he refused to join on return as he is saying he does not want to, he said because people would request day and night and because of this pressure from friends, neighbours and the community in the end he would have to join and become involved.
As to his involvement in the BNP in Australia, he said he goes to meetings about twice a year. He said the last time he attended was in [Suburb 1], two years before the interview. He said he does not go all the time as he has family and work commitments.
The delegate raised a number of concerns as to the credibility of the applicant’s father’s evidence and referred to the findings of the previous RRT decision as to the claim the applicant will face a real chance of serious harm or real chance of significant harm on return to Bangladesh .
At the Tribunal hearing held on 12 September 2022 the applicant’s father reiterated the claim that the applicant fears return as result of his political support and association with the BNP. He said he fears his son will be kidnapped or harmed on return due to his, the applicant’s father’s, past political activities in Bangladesh and as he will resume his political activities with the BNP on return. He said if he sent his son, the applicant, to school, he would be kidnapped and killed.
He said his son had never been to Bangladesh and does not know the culture or food and culturally would not fit into society there. He said he is not used to the food and referred to the applicant’s eczema.
He said he departed Bangladesh for [Country 1] in 1996 and travelled direct from [Country 1] to Australia in 1998. He said his father was a wealthy businessman and since his father died, he has inherited a house, shops and two aces of land. He confirmed if he returns to Bangladesh he would have a number of assets.
He advised that his daughter has since been granted Australian citizenship as she was born in Australia in [year]. He said they applied to the Minister for his intervention but as outlined in the letters submitted this was refused as there was an ongoing application.
As to his political activities in Bangladesh he said he joined the BNP while he was in college in 1990/1 and then said 1992 and was Joint Secretary of the Youth Wing of the BNP in his local District of [District 1] from 1994 to 1996 until he travelled to [Country 1]. He also said he held this role from 1992 to 1995/6 for about 3 years. He said he had no political problems with his political activities while living in Bangladesh prior to travelling to [Country 1] in 1996 and was not involved while in [Country 1].
When asked why he travelled to Australia from [Country 1] in 1998; he said to study and said he only came to Australia to study and that there was no other reason.
He confirmed he returned to Bangladesh on 2 occasions in 2001 and 2006 and that he did not face any difficulties. He said at that time the BNP was in power.
He said he has been a member of the BNP in Australia since 2006. He said and confirmed that since 2006 he has attended about 3 to 4 BNP meetings each year but has not attended other activities because he has had to support his family and work. He said other than meetings he has attended he has been to one protest when the Bangladeshi PM, who is head of the Awami League visited Australia, in or around 2018. As to what he does at the meetings he attends he said they discuss the political situation in Bangladesh and vote for committee members. He said the meetings are held in [Suburb 2] library and or hall and are held indoor. He said they are closed meetings. He answered in the affirmative as to whether he would be harmed because of his political activities in Australia.
As to whether he would be involved in politics on return to Bangladesh; he answered in the affirmative and said it is because he is addicted to politics and has been since school. He said he cannot help being involved and the motivation comes from him. He confirmed he would be involved because of his own commitment and then said also because of his friends wanting him to be involved.
The applicant’s wife answered in the negative when asked if her son has any medical condition or skin issues. She said her children cannot return and they start crying when it is discussed, and particularly referred to her daughter. She said they will have no friends, know nothing about the culture as it is a different environment, the schooling is not as good and it is totally different and they would not be used to it. She said the environment is not good and referred to the quality of the water which will upset their stomachs.
The Tribunal questioned whether the applicant’s father, appearing on behalf of the applicant, is a credible witness generally and as to his political activities as well as his son suffering eczema and outlined a number of concerns and inconsistencies in his evidence, some via the process outlined in s.424AA. Where relevant, these have been outlined below.
It raised with him independent information as to returnees from the West and Australia and questioned whether this and his other claims meet the protection and complementary protection criteria.
Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act, or does he meet the protection obligations under the complementary protection provisions of the Act?
Having sighted a copy of the applicant’s identity document the Tribunal accepts that the applicant is a national of Bangladesh for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Bangladesh is the receiving country.
Harm as a consequence of the applicant’s father’s and family’s political support and activities for the BNP, and its youth organisation in Bangladesh and Australia.
Central to the applicant’s claim as to why he fears return is his father’s and family’s political involvement in Bangladesh and Australia. However, for the reasons that follow, including inconsistencies in his father’s evidence, given on the applicant’s behalf, the Tribunal does not accept he is a credible witness as to any of the political claims. It follows it does not accept the applicant’s father was ever involved in the BNP or its associated youth organisation as a member, supporter, joint secretary or in any manner claimed, or continues to be involved after coming to Australia by attending meetings and protests or that his family was or continues to be involved. It follows it does not accept the applicant will be threatened, kidnapped or face harm for any reasons associated with his father’s or family’s claimed political activities including as a family member of a BNP leader, supporter or activist.

Firstly, the applicant’s father has claimed that the applicant will face harm on return to Bangladesh as if he returns, he, the applicant’s father will be involved in BNP politics. However, the applicant’s father has provided inconsistent evidence between the Department and Tribunal as to why he will be involved in BNP politics on return to Bangladesh. At the Tribunal hearing he indicated that he will be involved because of his own personal commitment, as he is addicted to BNP politics, and this has been since school. However, at the Department interview for this application, he said and repeated that he personally did not want to be involved in BNP politics on return but would eventually have to be involved as everyday people would knock at his door and pressure him to be involved. He said because everyone knows him as a political leader he will be made to join and will have to return to meetings and protests. Similar to the evidence he gave at the Department interview, at the Tribunal interview held on 2 May 2014[2] following the applicant’s father’s application for the protection visa he indicated that he did not want to be involved in politics on return to Bangladesh but would be pressured to be involved by others because of his past political activities. When the inconsistency was raised with the applicant’s father via s.424AA at the recent Tribunal hearing, he chose to respond or comment orally at hearing. He said he would eventually have to be involved as he is addicted, and his friends would pursue him to be involved so he would automatically be involved on return. The Tribunal does not consider that the applicant’s father’s response explains the inconsistency and why at the recent hearing he indicated he will be involved because of a personal commitment whereas he has said something different previously on 2 occasions. This adds to the finding he is not a credible witness.
[2] Case number 131125 with the applicant’s parents and sister as applicants.
Secondly, the applicant’s father has provided inconsistent evidence as to whether he departed as a result of difficulties faced due to his political activity in Bangladesh and when he was Joint Secretary of the BNP Youth Organisation in [District 1]. At the recent Tribunal hearing the applicant’s father indicated he was Joint Secretary of the BNP youth organization from approximately 1992 to 1995, and then said 1993/4 to 1996, for 3 years until he departed Bangladesh for [Country 1] in 1996. He said he then travelled directly from [Country 1] to Australia in 1998 to study and did not return home after travelling to [Country 1]. He said he did not face difficulties as a result of his political activity in Bangladesh prior to his departure for [Country 1] as the BNP was in power at the time. However, in contrast at the Department interview he said he faced many problems as the Joint Secretary of the BNP Youth Organisation in [District 1] prior to his departure for Australia in 1998 and his parents advised him to travel overseas. He said he held the position in 1997 and 1998. When the concern was raised via s.424Aa the applicant said he cannot remember and referred to the problems his children will face fitting in as considered below. The Tribunal does not consider that the applicant’s father’s response explains the inconsistency. While it accepts it was a long time ago, it is of the view, notwithstanding that he would be able provide consistent evidence as to whether he faced difficulties before departing Bangladesh due to his political involvement. This adds to the finding he is not a credible witness.
Thirdly, the applicant’s father has provided inconsistent evidence as to how he was and is involved with the BNP in Australia as follows.
·At the recent Tribunal hearing he indicated that he joined as a member of the BNP Australia in 2006; however as raised with him via s.424AA at the Tribunal hearing in regard to his application for the visa held on 2 May 2014 he indicated he was not a member.
·At the recent Tribunal hearing he said and confirmed that since 2006 he has attended about 3 to 4 Australian BNP meetings each year but has not attended other activities because he has to support his family and work. He said the meetings are held in [Suburb 2] library or hall and are held indoor. He said they are closed meetings. He said other than these closed meetings he attended one protest when the Bangladeshi PM, who is head of the Awami League visited Australia, in or around 2018. He answered in the affirmative as to whether he would be harmed because of his political activities in Australia.
In contrast, he said:
oAt the Department interview, that he goes to meetings about twice a year and the last time he attended was in [Suburb 1], two years before the interview
oAt the Tribunal hearing for his application held on 2 May 2014; he said he does not go to the small meetings but the big meetings held once or twice a year and these are the meetings out in the open where he is invited on stage when Bangladeshi leaders come to Australia and they know him.
When the concerns were raised with the applicant’s father via s.424AA he referred to the deteriorating situation in Bangladesh for BNP members. The Tribunal does not consider that the applicant’s father’s response explains the inconsistency. This adds to the finding he is not a credible witness.
Further, the Tribunal views the applicant’s father’s delay in applying for protection visa undermines the claim he was involved in BNP politics and that both he and the applicant would face harm on return. As raised via the process outlined in s.424AA the applicant’s father arrived in Australia [in] November 1998 but did not apply for protection until 30 October 2012, almost 14 years after his arrival in Australia and 4 years since the Awami League came to power. The Tribunal is of the view if the applicant’s father was involved in BNP politics as a leader and his fear of return is or was genuine and he is credible as to his claims and those made on behalf of the applicant, he would have applied sooner than in 2012, particularly around the time the Awami League came to power in or around 2008. In response the applicant noted, which the Tribunal accepts, that as the BNP were in power until 2008, he did not fear return. He also said that the Awami League were not that bad straight away. The Tribunal does not accept that it took the applicant 4 yeas since the Awami League came to power to apply for protection. His claim that the Awami League was not that bad contrasts with information he submitted with his application and the current application as to difficulties faced by BNP supporters at the hands of the Awami League and government. The applicant’s father’s delay in applying for protection after 2008 adds to the finding he is not a credible witness.
Therefore, for all the above reasons, considered cumulatively, the Tribunal does not accept the applicant’s father is a credible witness as to the difficulties the applicant will face on return on account of the applicant’s father’s or his family’s political activities in Bangladesh. The Tribunal is of the view that the claims have been fabricated and evidence concocted to achieve an immigration outcome.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It is also sensitive to the length of the process and that frustrations can arise in this regard. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicants’ father on behalf of the applicant is not a reliable witness as to these claims.
In making the finding the Tribunal has considered the independent information submitted and referred to as to the difficulties faced by those supporting the BNP and its affiliated organisations and those perceived to be in opposition to the current government and Awami League, particularly as outlined in the submission dated 29 Janaury 2013.[3] However, based on the Tribunal finding that the applicant’s father and therefore the applicant lacks credibility, including with regard to the applicant’s father’s involvement in the BNP and the difficulties faced, the Tribunal does not accept these articles explain or excuse the concerns which, cumulatively, have led it to find that the applicant’s father was not a reliable witness.
[3] Submitted with regard to the applicant’s father’s previous application and again with regard to the current application.
Based on the lack of credibility, the Tribunal therefore does not accept the applicant’s claims or that of his father as to his father ever being involved in the BNP, as a member, leader or activist, attending protests and meetings including as Joint Secretary of the BNP Youth Organisation in [District 1] District, being involved in the BNP Australia by being a member, attending meetings, open or closed or any protests or meetings in [Suburb 1] or [Suburb 2] or at any time. It follows it does not accept the applicant’s father ever faced any difficulties in Bangladesh because of any political belief or was of any interest to anyone due to his political activities at the time of his departure in 1996 or 1998. It follows it does not accept that were the applicant’s father to return o Bangladesh he would be compelled to be involved in BNP politics as he is addicted, or because he would be pressured by friends and neighbours due to his past activity and would be involved at all.
As the Tribunal does not accept that the applicant’s father is a credible witness as to these claims, and that either his father or his family have been or would be in the future involved it follows it does not accept the applicant would be killed, kidnapped, threatened or face any of the difficulties claimed at the hands of the Awami League, Government or anyone else as a result of his father’s or family’s past, present and future political activity or that he would suffer harm as his father would be harmed or face difficulties as a result of any past or future involvement in the BNP or its associated organisations.
Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Bangladesh on account of his father’s or any family member’s past political activities including any support, membership, leadership, involvement with the BNP or any of its associated organisation in Bangladesh and in Australia or any claimed past or future political activities, support, membership, leadership and involvement with the BNP or any of its associated organisation
The Tribunal also does not accept that there is a real chance that the applicant will suffer serious harm if he returns to Bangladesh on account of being a member of the same family unit as his father including being imputed with any political opinion.
Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that they will suffer significant harm on their return to Bangladesh on account of his father’s or any family members past political activities including any support, membership, leadership, involvement with the BNP or any of its associated organisation in Bangladesh and Australia or any claimed past or future political activities, support, membership, leadership and involvement with the BNP or any of its associated organisation
The Tribunal also does not accept that there is a real risk that he will suffer serious or significant harm if he returns to Bangladesh on account of being members of the same family unit as his father including being imputed with any political opinion.
Returnee from Australia and the West
The Tribunal accepts that the applicant, together with his parents will return to Bangladesh from Australia or the West having spent a lengthy time in Australia. The applicant’s father claims the applicant will be harmed as he, together with his family will be viewed as wealthy as he and they will be returning from Australia, a western country. At the Department interview the applicant’s father referred to the applicant being kidnapped on return as he will be imputed as belonging to a wealthy family due to their lengthy time in Australia.
As raised with the applicant’s father appearing on behalf of the applicant, independent information from DFAT’s country report notes[4] that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. Information indicates that it is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Further, the Tribunal notes the evidence of the applicant’s father that he returned in 2001 and 2006 from Australia, the latter after 8 years living in Australia and faced no difficulties.
[4] DFAT Country Information Report, Bangladesh, 22 August 2019
On the basis of the evidence before it, the Tribunal therefore does not accept that if the applicant were to return to Bangladesh in the reasonably foreseeable future he will face a real chance of persecution involving serious harm as he or his family will be perceived as wealthy as they are returning from Australia or the west and as they have spent a lengthy amount of time in Australia or the west.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Bangladesh as he or his family will be perceived as wealthy as they are returning from Australia or the west and as they have spent a lengthy amount of time in Australia or the west.
Lack of understanding of the culture and society, poor schooling, environmental and water concerns, food intolerance and eczema
The applicant’s father and mother claim on behalf of the applicant that he will have difficulty adjusting to returning to live in Bangladesh as he has been living in Australia since his birth. They refer to the poor quality of the schooling, that he will have no friends, as he would not understand the culture and society and not like the food of Bangladesh.
The Tribunal accepts that the applicant has spent all his life living in Australia and return will require adjustment. It accepts that the level of schooling in Bangladesh is not as good as in Australia,
However, on the basis of the evidence before it, including that the applicant is only [age] years of age and will return to live with his parents, the Tribunal does not accept the difficulties the applicant will face returning and living in Bangladesh, including adjustment difficulties, poor education, difficulty adjusting culturally and not understand society, or liking the food amount to serious harm in s.5J(4)(b) or is analogous to the examples outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Bangladesh as he has lived all his life in Australia, adjustment will be difficult, the education in Bangladesh is poor, he will have no friends, he will not understand the culture and society and not like the food of Bangladesh. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) as he has lived all his life in Australia, adjustment will be difficult, the education in Bangladesh is poor, he will have no friends, he would not understand the culture and society and not like the food of Bangladesh
The applicant’s mother additionally referred to the poor water quality and environment in Bangladesh. While the Tribunal accepts that the water quality and environment is not as good as in Australia the Tribunal does not accept that any such harm the applicant would face as a result would be for an essential and significant reason as required by s.5J(1) and s.5J(4)(a). The Tribunal therefore finds that the applicant does not face a real chance of persecution if he returns to Bangladesh due to the poor water quality and environment in Bangladesh.
Further, the Tribunal considers that the poor water quality and environment he will face does not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Bangladesh generally and is not faced by the applicant personally. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act on account of the poor water quality and environment.
The applicant’s father claimed he also had food intolerances and eczema although as raised with him via s.424AA the applicant’s mother answered in the negative when asked if the applicant had skin issues or any medical condition. In response the applicant’s father said his son saw a doctor for his eczema about 3 or 4 years ago and is still applying the lotion and has an inhaler. The Tribunal is of the view if the applicant’s skin condition or other medical issues from food intolerances and eczema were an issue or a significant issue his mother would have confirmed this at hearing. It is also of the view that while medical care in Bangladesh is of a poor quality, there are private clinics that are of better quality albeit beyond the means of ordinary Bangladeshis[5]. As the applicant only requires lotion and an inhaler on a limited basis the Tribunal is of the view the applicant’s family would have the means to purchase this in Bangladesh as they have assets.
[5] DFAT Country Information Report Bangladesh, 22 August 2019 at 2.15
Therefore, on the basis of the evidence before it, including that the applicant is only [age] years of age and will return to live with his parents, the Tribunal does not accept the difficulties the applicant will face returning and living in Bangladesh, including food intolerance and eczema amounts to serious harm in s.5J(4)(b) or is analogous to the examples outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Bangladesh as he has food intolerance and eczema . The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) as he has food intolerance and eczema.
Generalised Violence
The Tribunal accepts that the security situation in Bangladesh can be volatile and deteriorate quickly.[6]
[6] DFAT Country Information Report Bangladesh, 22 August 2019 at 2.33
DFAT in its 2019 Country Information Report, indicates that:
Security threats include politically motivated violence, particularly ahead of elections; terrorist attacks committed by Islamist extremist groups; criminal violence; and sporadic clashes in the CHT between indigenous groups and Bengali settlers over land ownership and usage (see Chittagong Hill Tracts (CHT) indigenous people). Authorities have expressed concern that the large-scale influx of Rohingya from Rakhine State, Myanmar (see People who identify as Rohingya (Rohingya)) into Bangladesh in 2017 may lead to additional security threats in the Cox’s Bazar district, including communal violence, people smuggling, drug and human trafficking, and possible radicalisation.[7]
[7] DFAT Country Information Report Bangladesh, 22 August 2019 at 2.33

Information indicates that in November 2019, the government gave a national Antiterrorism Unit ‘operational authority’ to combat terrorism.[8] Bangladeshi authorities have routinely conducted extensive counter-terrorism operations that have reduced the capability of militant groups[9] and professed a zero tolerance policy toward terrorism but the judicial system has been slow and structurally weak in convicting alleged terrorists.[10] Bangladesh experienced a decrease in terrorist activity in 2020, accompanied by an increase in terrorism-related investigations and arrests.[11]
[8] Country Reports on Terrorism 2019: Bangladesh’, United States Department of State, 24 June 2020, pp.152-153, 20200626091313
[9] DFAT Country Information Report Bangladesh, 22 August 2019 at 2.15
[10] ‘Country Reports on Terrorism 2019: Bangladesh’, United States Department of State, 24 June 2020, pp.1, 20200626091313
[11] 'Country Reports on Terrorism 2020', United States Department of State, 16 December 2021, p.151, 20211220094048
The Tribunal has found above that the applicant and his parents and family were not and are not of any adverse interest to anyone in Bangladesh. The information indicates that the applicant and his family are not from the Chittagong Hill Tracts or the Cox’s Bazaar areas but from in or around Dhaka.
The Tribunal therefore does not accept that any such harm the applicant or his parents or family would face as a result of generalised violence in this regard would be for an essential and significant reason as required by s.5J(1) and s.5J(4)(a). The Tribunal therefore finds that the applicant does not face a real chance of persecution if he returns to Bangladesh on account of the generalised violence.
Based on the country information as to the situation in Bangladesh and the Tribunal’s finding that the applicant and his parents and family are not of adverse interest to anyone, and they are not from the Chittagong Hill Tracts or the Cox’s Bazaar areas the Tribunal considers that the situation he will face on account of generalised violence does not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Bangladesh generally and is not faced by the applicant personally.
Conclusions regarding the Refugee Criteria
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant or his father on his behalf would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
Based on all the evidence before it, including the applicant’s father’s claimed past circumstances and present circumstances in relation to his claimed political activities, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Bangladesh in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Conclusions regarding Complementary protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant or his father on his behalf would together create a real risk of him being subjected to significant harm on return to Bangladesh. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.
Ministerial Intervention
The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.
The Minister’s Guidelines indicate the matters that should be brought to his attention[12]. In particular it refers to
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[13]
[12] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)
[13] Ibid
Information before the Tribunal indicates that the applicant is the biological brother of an Australian citizen who is [age] years old. It notes he has been in Australia since his birth in [year] and will soon meet the 10 year residence requirement to be granted citizenship after being born in Australia. It notes his father has been in Australia since [year].
The Tribunal refers to the evidence provided by the applicant’s mother as to her daughter not wanting to depart Australia, having lived in Australia for 14 years and thriving academically, emotionally and socially. It notes they have no other family in Australia.
Having regard to the applicant’s circumstances outlined above and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
CONCLUSION
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

ATTACHMENT A - Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in Attachment B.
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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Attachment B - 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.
…

[2022] AATA 4146

5 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction