1907790 (Refugee)

[2023] AATA 3634

1907790 (Refugee) [2023] AATA 3634 (31 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  1907790

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Penelope Hunter

DATE:31 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2023 at 12:30pm

CATCHWORDS

REFUGEE – protection Visa– Bangladesh – religion – Muslim – Race – ethnic Bengali – political opinion – supporters of the BNP –– claimed fears of the Awami League – inconsistent information as to whether he was ever harmed in the past – Tribunal does not accept that applicant has been politically active in Bangladesh in the past – fears of persecution are not well-founded –a failed asylum seeker –applicant was not a credible witness – fabricated claims – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AA, 5H, 5J, 46A, 48A, 65, 91K, 91R, 411, 424A, 427, 499

Migration Regulations 1994, Schedule 2

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 a decision made by a delegate of the Minister for Immigration and Border Protection on 30 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Bangladesh.

   BACKGROUND

3. The applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] January 2013, according to Departmental records. He was initially considered an unauthorised maritime arrival (UMA) as defined in s 5AA of the Act due to the method of his arrival to Australia, and was subject to s 46A of the Act.

4. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a safe haven enterprise visa (SHEV) is a Part 7‑reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

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

6. The applicant applied for a SHEV on 16 March 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 30 June 2017.

7. On 5 July 2017, the Department referred the matter to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 26 March 2018, the IAA affirmed the decision under review.

8. The applicant sought a further review before the Federal Court. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not considered a UMA due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a SHEV is not a ‘fast track decision’ (as defined in s 5(1) of the Act). Instead, it is a Part 7‑reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411. On 23 January 2019, the Minister withdrew the opposition to the Federal Court proceedings.

9. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on s 5H(2), 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a SHEV (the second visa application) on 17 September 2020.

10. The second visa application was refused by a delegate on 25 March 2019. An application for review of that decision was made to the Tribunal on 26 August 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application was invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application, matter 210278, and substitute it with a decision that the second visa application is invalid. A decision in that matter has been made accordingly.

11. The decision under review, the applicant’s first visa application, remains a valid visa application and the issues that arise on review are whether the applicant is owed Australia’s protection under the refugee or complementary protection criteria contained within the Act.

    CLAIMS AND EVIDENCE

12. The applicant claimed to be a citizen of Bangladesh born in [year]. He was born in [Village 1], Comilla District, Bangladesh. He claims to be of the Muslim religion and an ethnic Bengali. He is married and has one daughter born in [year]. His wife, daughter, parents and siblings continued to reside in Bangladesh.

    Entry interview

13. Following his arrival in Australia, the applicant participated in an irregular maritime arrival entry interview with an officer of the Department on 1 December 2012.

14. The applicant set out that he had been educated in Bangladesh to [year level]. He had worked in [industry] in 2004, then from 2005 to 2012 he helped his father on his farm and with housework. They grew crops and would sell some things. He was married and had a daughter born in [year]. His wife, daughter, parents, three brothers and sister all lived in [Village 1] village, Bangladesh. He left his village of [Village 1] on [date] October 2012 and travelled by bus for seven or eight hours to get on a fishing trawler and then he went directly to [Country 1]. On [date] October 2012, he departed [Country 1] by boat for [Country 2] where he stayed for [number] days before coming to Australia.

15. When asked why he left his country of nationality, the applicant told the officer that he had left Bangladesh due to poor living on a daily basis, and they were struggling for a long time. He was the eldest and his brothers have to pursue their studies, and he cannot pay. His father sold some land and borrowed money to send him to Australia to see if he could do something better and help the family. His father was not in good health and maybe with money he could help with treatment. When asked if there was any danger to him in Bangladesh, the applicant responded no. The applicant responded that he had not been associated or involved with any political group or organisation. He identified that there were political groups in his area, the Awami League and the Bangladesh Nationalist Party (BNP). When asked if they impacted on his daily life, the applicant responded that if there was too much of a problem they do not go out and do any shopping at the market or bazar and they just stay home. If he returned to Bangladesh he told the officer that it was going to be a very tough life. They will not be able to eat three meals, and his brothers will not get an education. They had sold property so it would be very hard.

    Department file note

16. In a file note dated 26 April 2013, it is recorded that the applicant added extra information to support his case:

    i.He and his father owned a shop in [Bazar 1].

    ii.The Awami League every 15 days has been harassing them for money, a forced donation.

    iii.Due to this they were angry and there was a verbal and physical fight, with the applicant and his family members trying to negotiate payment with the Awami League.

    iv.This resulted in the Awami League killing his cousin. This occurred one and a half months before he left.

    v.Since the incident they sold all items in the shop and moved away. He fears to go back.

    First visa application

17. In his SHEV application, lodged on 16 March 2016, the applicant provided a copy of his birth certificate and a character/nationality certificate. In the application form he again set out that his wife, daughter, three brothers and parents resided in Bangladesh. He claimed that for one year in 2004 he worked as a [Occupation 1] in [Bazar 1], and he could not remember his boss. From 2005 to 2012 he helped his father. The applicant claimed they grew crops and sowed the seeds and then would sell some things. The applicant also indicated he was not aware of any criminal investigation, or any criminal charges pending against him. The application also set out the following information in relation to his protection claims:

    i.In Bangladesh he was involved with the BNP. He was a victim of political harassment and received a death threat from a local Awami League worker/supporter (Awami League is government). They tried to kill him several times. He left his country for fear of persecution.

    ii.From his past experience, if he goes back to Bangladesh he will be harmed and mistreated by the Awami league politicians, workers and its supporters. He had bitter experiences in the past as with the illegal support from the police, the government party members harass the opposition party members.

    iii.Once they beat him mercilessly on the way to his home from a party meeting. Another time they attacked him at a peaceful party rally and they beat him and left him on the road.

    iv.He and his family went to the local police station to lodge a GD against the Awami worker. But the police officer refused to take the general diary (GD) and said that he cannot accept any complaint against a government party worker or supporter.

    v.He did not move or try to move to another part of Bangladesh because wherever he will go he will have the same problem. The Awami League government has the strong network all over the country and they will find him. He tried to live in hiding in Bangladesh but they found him when he returned home.

    vi.There is no authority that would protect him if he returned to Bangladesh as the authorities support the Awami League party. The Bangladesh authorities cannot protect him if he goes back to Bangladesh. As his party is not in power, he will not get effective protection from the government.

18. On 5 January 2017, the applicant instructed new representatives who provided submissions and filed updated details about his family composition, as well as an amended statement in support of the applicant’s visa application. In summary, the applicant set out the following additional claims:

    i.The applicant’s father was running a [business] at [Bazar 1], where the applicant worked after completing the Higher Secondary School Certificate in 2003. The business was the main source of support for his family.

    ii.The applicant and his family are supporters of the BNP. In December 2008, the Awami League came to power and after that a local Awami League activist started to ask them for money, with different excuses each time, asking for a donation or a contribution. They were raising money for their own benefit.

    iii.On several occasions they paid them money to avoid any incidents but they were facing a monetary problem. Eventually they found out that the Awami League had made a policy that they would collect money once or twice a month from people supporting the BNP. They could not afford to pay.

    iv.In September 2012, the applicant’s father refused to pay the money. He was threatened that if no money was paid, they would have to quit the business or the Awami League would burn the business. A verbal argument turned into a physical assault and the applicant’s father was publicly assaulted in front of others in the bazar and a fight broke out. Even though his father was assaulted and beaten they tried to negotiate the payment of a smaller amount each month knowing that they could not fight them back as they were the ruling party and everyone locally was terrified of them.

    v.On 15 September 2012, a few days later, the applicant’s cousin, [Mr A], was murdered after returning home from running his business in [Bazar 1]. His uncle filed a first information report (FIR) at the local police station accusing some of the Awami League of previously collecting donations and referring to the assault of his father. The police did not take much action, there were no eye witnesses and the local Awami League parliament member influenced the police.

    vi.The case is pending and members of his family were threatened every now and then that they would end up like [Mr A]. His father closed his business and relocated the applicant’s family, including his wife and child, to [an area], on the outskirts of Comilla city. The applicant’s brothers [Mr B] and [Mr C] escaped to [Country 3] and [Country 4] respectively.

    vii.The applicant went to Chittagong to make arrangements to leave Bangladesh for the safety of his life.

19. The applicant also filed with the Department updated visa forms including a Part B and Part C dated January 2017 and a Form 80 Personal Particulars dated December 2016. In these forms the applicant detailed that his brother [Mr B] was living in [Country 4] and his brother [Mr C] was in [Country 3]. He listed his occupation as a [Occupation 1] and claimed that he had previously worked in the family [shop] in [Bazar 1] from 2003 until he departed Bangladesh.

    Department decision

20. The applicant was invited to attend an interview before the delegate of the Minister on 12 April 2017. The interview was conducted with the assistance of an interpreter in the Bengali and English languages. Where relevant, the applicant’s oral evidence to the delegate in the course of that interview is referred to further below. In their decision record, the delegate accepted as plausible that the applicant was involved with the BNP as a low level supporter, that his family may have been targeted by the Awami League and extorted for money, and that his cousin may have been murdered by an unidentified person. However, the delegate did not accept that the applicant was ever personally targeted by the Awami League because of his association with the BNP, or that his cousin was murdered by the Awami League, or that the primary reason his family closed the shop in September 2012 was to protect the applicant.

    IAA review

21. On 11 December 2017, the IAA reviewed the decision to refuse the applicant’s SHEV application. 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 received on 3 October 2022, and again at the Tribunal hearing, 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.

22. The Tribunal does not have before it any documents or submissions provided by the applicant to the IAA. At the hearing on 27 April 2023, the Tribunal drew this to the attention of the applicant and his representative and they were directed to file before the Tribunal any material provided to the IAA that they wished to rely upon. No material that the Tribunal can identify as having been provided to the IAA was received from the applicant.

    Second visa application

23. On 17 September 2020, the applicant lodged the second visa application. He again disclosed that his family, including his parents, wife, daughter, three brothers and a sister, is living in Bangladesh. The application was accompanied by a statement identical to that provided to the Department in respect of the first SHEV application on 5 January 2017 and contained the claims as set out at paragraph 18.

24. On 10 March 2021, the applicant provided the Department with:

    i.A letter from [Mr D], [position] of the BNP in Comilla, dated [in] October 2020, stating that he had known the applicant since 2004, when the applicant became a member of the BNP. He further specified that the applicant is known to him because of the applicant’s political activities for the BNP in the Comilla District.

    ii.A letter from [Mr E], [Position 1] of BNP Australia, dated 27 October 2020, stating that he has known the applicant since 2017, when the applicant joined the BNP Australia party.

25. The applicant attended a further Department interview on 19 March 2021 in relation to his second visa application. Where relevant, the applicant’s oral evidence to the delegate in the course of that interview is referred to further below.

    Tribunal application

26. After the applicant was renotified of the delegate’s decision in relation to the first visa application on 25 March 2019, the Tribunal received an application for review from the applicant on 1 April 2019.

27. Pursuant to s 427(2) of the Act, the Tribunal determined to combine the hearing with the review of matter 2111250. The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The Tribunal again discussed with the applicant at hearing the decision to combine the review applications. The applicant did not raise any objections and confirmed his consent to a joint hearing of his claims.

28. On 22 May 2023, the applicant submitted a further statutory declaration sworn on 5 May 2023. In this the applicant made further claims, including the following:

    i.His father was an active member of the BNP and held a post with the local BNP. His father introduced him to the BNP and its ideologies. As a child he grew up in the political environment where BNP ideologies were practised and talked about.

    ii.On or about 2003 he joined the BNP as a general member but was not issued any membership until 2004. He was influenced by his father and because he noticed that anyone involved in politics gets social recognition. As a member he actively participated in BNP politics and upheld the ideologies of the late leader President Ziaur Rahman.

29. On 29 June 2023, the applicant was again invited to appear before the Tribunal via MS Teams video. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages. The representative of the applicant also appeared at the hearing. The Tribunal discussed with the applicant at the hearing the validity of his second visa application and invited any relevant submissions.

30. On 5 July 2023, the Tribunal wrote to the applicant pursuant to the provisions of s 424A of the Act. The Tribunal invited comment on information arising from the first and second visa application that it considered may be the reason or a part of the reason for affirming the decision under review.

31. On 23 July 2023, the representative for the applicant provided a submission in response to the Tribunal’s letter of 5 July 2023.

    CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

6. 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.

   CONSIDERATION OF CLAIMS AND REASONS

7. 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 and a copy of his Bangladeshi birth certificate. The Tribunal notes a small discrepancy in these identity documents and information presented by the applicant to the Department. In particular, in his birth certificate and nationality certificate, he is recorded as [name], born [date]. To the Department in the first visa application, the applicant has provided the name [applicant’s name], and the second visa application was brought in the name of [Alias 1]. The Tribunal has also had regard to country information and considered the advice of the Department of Foreign Affairs and Trade (DFAT) 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 recordkeeping 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?

8. 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.

9. 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.

10. 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. With this in mind, the Tribunal has had regard to the totality of the applicant’s evidence, 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 applicant’s evidence in many instances was found to be unreliable and substantially inconsistent. It is considered that the applicant considerably embellished and exaggerated his claims as he progressed further through the review process. The Tribunal acknowledges that the process of review has been lengthy and subject to change in policy and judicial interpretation. However, overall, the Tribunal finds that the applicant has varied and changed his claims several times since his arrival and this indicates that the reasons he claims to invoke Australia’s protection obligations are not based on real experiences. This finding is based on several considerations as detailed below.

11. Firstly, as noted by the delegate in their decision record, the applicant had not declared the extortion perpetrated by the Awami League or the murder of his cousin in his arrival interview. At the Tribunal hearing when asked to comment on this matter, the applicant said that he was under a lot of stress following the sea journey to Australia. He claimed that the incident that happened in [Bazar 1] was true and that he had lied because he thought that the Australian authorities would put him in jail. On 5 July 2023, the Tribunal set out further to the applicant the details provided in his entry interview, as set out in paragraph 15 of this decision, and invited the applicant to comment on the Tribunal’s concerns that at his first opportunity to present reasons why he had departed his home country he had not raised any claims of membership of the BNP, a fear of harm, or mentioned the death of his cousin. In the response received on 23 July 2023, it was argued that the Tribunal lacked the power to go beyond the delegate’s decision record. The Tribunal does not accept this submission; the relevant information was considered by the delegate and also put to the applicant in writing. The applicant further claimed that he understood the entry interview was not for him to raise protection claims but an informal session where he was invited to respond to a set of questions. He again claimed that he was fearful if he disclosed his identity and details he would run the risk of being deported or detained in prison. The Tribunal has considered the applicant’s explanations and they do not satisfactorily address the Tribunal’s concerns. The applicant did disclose his identity, he was also asked directly about political parties, and there is nothing in his subsequently claimed political activity that could reasonably be considered to render him liable to imprisonment. Even though the arrival interview was not a process for determining the protection claims of the applicant in full, the applicant was advised at the beginning of the interview to tell the truth, that the information was being recorded and it was aimed at screening those who had arrived and claimed to engage Australia’s protection obligations. This purpose was explained to the applicant. The Tribunal acknowledges the claim of the applicant that he was stressed due to his sea journey to Australia, although it is also not satisfied that this can explain the omission.

12. It is accepted that the applicant subsequently advised a case office in April 2013 of information that became part of the applicant’s claims. It is also his evidence that after he was advised that the information he provided about his economic situation did not engage Australia’s protection obligation. The applicant told the Tribunal at the hearing that he was told he would not be released, would be transferred elsewhere and not get his freedom. After this he said to the Tribunal he told a case officer his true story. The Tribunal considers, as put to the applicant at hearing, that the reverse is more probably correct. That the applicant truly departed Bangladesh for economic reasons as he originally claims, but when informed that would not result in a positive migration outcome, he fabricated those he now relies upon.

13. Secondly, at various opportunities, it is considered that the applicant has given inconsistent evidence about whether he was ever harmed in the past in Bangladesh. The Tribunal has noted that at his entry interview on 20 January 2013, when asked whether there was any danger to him in Bangladesh, the applicant replied no. In the statement that accompanied the first visa application, he claimed to have received death threats from the Awami League, that they tried to kill him several times, that once they beat him mercilessly on the way home from the party meeting and another time they attacked him at a peaceful rally and beat him and left him on the road. Then when interviewed by the delegate in April 2017, in relation to the first visa application, he said that after his father refused to pay money at the bazar to the Awami League, that evening together with his cousins armed with sticks he was involved in a fight with the Awami League members who had knives. As a consequence of this incident, the applicant told the delegate that he was injured on both legs and had marks on both legs. However, when interviewed by the delegate in relation to his second visa application on 19 March 2021, the applicant asserted that he was never physically harmed by the Awami League in the past in Bangladesh, although he was under mental pressure. Finally, at the hearing before the Tribunal on 27 April 2023, the applicant told the Tribunal that he was involved in many fights after 2008 with members of the Awami League and that he sustained at one time an injury to his head which required stitches. When invited to comment on this information by letter dated 5 July 2023, the applicant again repeated that he was fearful that if he disclosed his identity and details at his entry interview, he may run the risk of being deported or detained in prison. Otherwise, the applicant claimed that he had been consistent in responding to questions as they were asked of him. The applicant asked the Tribunal to consider that he was interviewed by several interviewers over 10 years and he raised that although his interpreters spoke Bengali, he considered from their dialect that they were of a different nationality. The Tribunal has considered the response provided by the applicant. It does not accept the claim that he has given consistent responses, as there are clear inconsistencies as set out above, from attempts made to kill him several times to not fearing harm, merely mental pressure. He was either attacked at a rally, on the way home from a meeting or at the bazar. He was either left in a ditch, attacked with knives on his legs or hit in the head requiring stitches. The applicant has not previously raised interpreting concerns, and he confirmed to the Tribunal that he did not have concerns about the interpreting at the hearing. It does not accept that the inconsistencies can arise due to differences in dialect. The Tribunal finds that the applicant has given inconsistent information as to whether he was ever harmed in the past. It further demonstrates that the applicant is an unreliable witness and that the reasons that he fears harm in Bangladesh are not credible.

14. Thirdly, not only the above inconsistencies on relation to the actual previous harm to the applicant troubled the Tribunal, but the Tribunal has wrestled with a new claim by the applicant provided at the hearing in April 2023. This was that after the 2008 election, the BNP members such including the applicant and his father were involved in regular fights with the Awami League. The applicant told the Tribunal at the hearing that the Awami League was fighting him about every two weeks for at least a year after the 2008 election. He claimed that his father was injured one time and this was also where he obtained injuries to head requiring stitches. At the Tribunal hearing was the first time the applicant had raised a claim relating of consistent targeting and violence from the Awami League in 2008 and 2009. The Tribunal draws and adverse inference from this late claim and considers it demonstrates the propensity of the applicant to embellish and fabricate elements of experiences in the past in Bangladesh.

15. Fourthly, when considering the alleged political profile of the applicant, it is considered that he has given inconsistent information regarding his participation in elections. The Tribunal noted particularly that during an identity interview conducted by the Department on 6 March 2013, the applicant disclosed to the Department that he did not vote in Bangladesh and that he did not have a voter card as the application process was too long. Then when he underwent his interview with the delegate on 17 March 2019, in relation to his first visa application, the applicant made claims that he had voted in the 2008 Bangladesh election and he claimed that at this time he was controlling the public and bringing people in when they needed to vote so that could queue up at [a] School. Further, when interviewed before the delegate in relation to his second visa application on 19 March 2021, the applicant said that he joined the BNP in 2004, but that he did not vote in 2008 because the police would not let the BNP supporters go into the vote centre, it was not safe and they would have been killed. Finally, at his hearing on 27 April 2023, the applicant returned to his claim that he had voted in the 2008 election, and said at this time he helped people line up and handed out brochures. In response to the invitation by the Tribunal on 5 July 2023 to comment on this information in writing, the applicant submitted that he did not recall undergoing an identity interview in 2013, and he further maintained that he had assisted people to vote and had voted in the 2008 election. He maintained that he had joined the BNP in 2003 but his membership was not issued until the following year. It is considered that the applicant’s response does not address the inconsistency, particularly his evidence to the delegate at interview in relation to the second visa application that he did not vote. As advised to the applicant, the Tribunal considered this information important as it appeared he had given conflicting accounts of his participation in elections in Bangladesh and his involvement. This impacts on the Tribunal’s assessment of his political profile and when relied upon it is considered that these inconsistencies undermine the credibility of his claims to be a BNP member and supporter.

16. Fifthly, additionally impacting on the Tribunal’s assessment of the political profile of the applicant and his claim to be a BNP supporter is the Tribunal’s concern over his different accounts of his actual membership of the BNP. Again, at his first arrival interview on 20 January 2013 when asked about his involvement with political groups in his local area, he did not claim to have any involvement. Then when interviewed by the delegate in relation to the first visa application, he claimed that he became a member of the BNP in 2008. Yet in a later interview with a delegate in relation to his second visa application on 19 March 2021, he claimed that he had joined the BNP in 2004 and had a membership certificate. To the Tribunal on 27 April 2023, he claimed to have joined the main party of the BNP in 2003, and that at that time he was issued with a membership card which he believes was lost. The Tribunal further raised with the applicant that he may have adjusted his evidence at the Tribunal hearing to address an adverse finding of the delegate in relation to the second visa application. In his response to the Tribunal’s invitation to comment of 5 July 2023, the applicant set out that he had advised his case officer on 23 April 2023 that he feared harm by the ruling Awami League and he asserted the claim in his statutory declaration of 5 May 2023 that he became a member of the BNP in 2003 but confirmation of membership was not issued until 2004. It is considered that the applicant’s response does not acknowledge or address the inconsistencies. This conflicting information relating his actual membership is considered to go to the core of the applicant’s political profile. These inconsistencies further demonstrate to the Tribunal the lack of credibility of the applicant’s claims regarding his involvement in politics in Bangladesh in the past.

17. Sixthly, in addition to the inconsistencies found by the Tribunal as to when or if he actually joined the BNP, the applicant has provided different information as to the financial process of joining. When the applicant was interviewed in relation to the second visa application by the delegate and asked about the process of joining the BNP in March 2021, the applicant had claimed that he had paid a 100 taka joining fee and then an ongoing annual membership. The applicant had previously claimed that on an annual basis he had to pay around 250 takas. The applicant had changed his evidence at the hearing on 27 April 2023 and claimed when he joined the BNP in 2003 he paid a 5 taka fee and no further annual fee. In correspondence sent to the applicant on 5 July 2023, the Tribunal invited the applicant to comment on whether he had changed his evidence to address adverse findings made in the decision record of the delegate in respect of the second visa application dated 13 August 2021. Particularly, the comments regarding his 100 taka joining fee were not supported by available country information.[2] In his response of 23 July 2023, the applicant adjusted his evidence and offered that he paid a 5 taka fee on joining and he may have paid additional funds over the years, such as 100 taka and 250 taka, but these were on a different occasion to his membership. The Tribunal notes that the applicant did not engage with his evidence in relation to the second visa application, and it has concerns that he is now tailoring his evidence to address perceived deficiencies. The Tribunal remains unsatisfied that the applicant’s evidence on this issue is reliable.

    [2] BGD105262.E Bangladesh: Bangladesh Nationalist Party (BNP), including its structure, leaders, membership and membership documents, factions, associated organizations and activities”, Canada: Immigration and Refugee Board of Canada (IRB), 31 August 2015, OGFDFC61A40 and "Bangladesh Nationalist Party‑BNP Constitution", Bangladesh Nationalist Party (BNP), 01 January 2016, CX6A26A6E12236

1. Seventhly, as the applicant has undergone various stages of review, the Tribunal also takes note of the fact that his claims regarding the involvement of his family in the BNP have undergone an evolution. As noted by the delegate in his decision record on his first visa application, the applicant denied any involvement by himself and his family with political parties at his entry interview. He went from being involved, as set out in the first visa application, to a claim made at the Tribunal hearing on 27 April 2023 that his father had held a post within the BNP of either [Position 1] or [Position 2] in his local branch, and that he had held this role from 2004 to the elections in 2008. While also a party member, the applicant would announce information about meetings and rallies, and the applicant said he would participate in these events, including leading the meetings and giving out slogans at the rallies. The Tribunal put to the applicant at the hearing concerns that he had not previously mentioned that his father held a position within the BNP and the late introduction of this claim may give rise to credibility concerns. In reply the applicant agreed that he had not previously spoken about the role of his father within the BNP; by way of explanation he offered that he had only recently spoken to his father about politics in the months leading up to the Tribunal hearing and his father had told him about his position, and the applicant claimed that this was not something that they had ever previously discussed. The Tribunal did not find this explanation to be persuasive, and the applicant’s profile within the BNP goes to the basis on which he is claiming protection. The Tribunal also could not reconcile this with his post hearing statutory declaration of 5 May 2023 in which he claimed that his father had introduced him to the BNP and its ideologies. On the one hand he has alleged that as a child he grew up in the political environment where BNP ideologies were practised and talked about and yet he offered to the Tribunal that he had only talked to his father about politics and his role in the months before the Tribunal hearing. It was also put to the applicant at hearing that if this claim is true he would have documentary evidence to support it, and the applicant countered that it was hard to find evidence because his father was only a third level MP and it was not possible to reach an upper level MP to obtain a document about his post. Again, the Tribunal did not accept this explanation. It is not considered that the applicant has provided a reasonable explanation for this late claim, given the previous assessments and opportunities to present claims that he has undergone, and his explanations and lack of corroborative evidence further undermine his credibility.

2. In the assessment of the applicant’s involvement with the BNP, the Tribunal has also considered a letter submitted by the applicant from [Mr D], [position] of the BNP in Comilla, dated 15 October 2020, stating that he had known the applicant since 2004, when the applicant became a member of the BNP. The Tribunal is aware that the writer claimed only to know the applicant from a membership date in 2004, not 2003 as maintained to the Tribunal by the applicant. The Tribunal also takes note of the fact that the writer provides no comment about the applicant’s father also holding a position in the local BNP and the writer’s knowledge of the applicant through his involvement through his father. The applicant also told the Tribunal at the hearing that his father continues to support the BNP, campaigns and continues to attend meetings. The correspondence is not reflective of this family connection even with the applicant’s explanation that his father’s age has made his less strong. The Tribunal had also had regard to country information stating that the use of fraudulently obtained genuine documents remains widespread in Bangladesh,[3] and it is not satisfied that the writer is reliable or that any weight can be placed upon it to support the applicant’s claims.

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

3. Eighthly, the applicant’s evidence at the hearing before the Tribunal on 27 April 2023 regarding a fight that broke out because his father had refused to pay the Awami League members was in the assessment of the Tribunal fundamentally different to the events as described in his written claims. He told the Tribunal that a fight had broken out the evening that his cousin was killed. The applicant claimed that his cousin had an argument with the Awami League members demanding money, not his father. His cousin had a shop adjacent to his [father]. This was not a mere lapse in memory as the applicant provided further details when questioned. He said he was at his father’s store with his father when the fight started. He also told the Tribunal that he heard what started the fight and that his cousin had said to the men seeking money, ‘we will not be able to give you the money that you are demanding if you come every week and demand that amount of money. How are we going to maintain our expenses’? The applicant gave evidence of the response of the Awami League members and that there was a big fight, he was involved but not injured and it calmed down when the police came. He said his cousin was later killed that night after he had left the store at around 9 pm. In this retelling of his claims, the applicant places his cousin as the family member that had gotten into a fight with the Awami League and not his father. Further, the police were claimed to be in attendance and the event occurs on the night that his cousin was killed, not several days before. When the Tribunal drew these differences to the attention of the applicant at the hearing and invited comment, he offered that what he told the Tribunal at the hearing was the truth. The Tribunal is not satisfied as to the truth of either claim that his cousin or father was in a fight with the Awami League at [Bazar 1] in September 2011, and the fact of the applicant being unable to maintain consistency in this claim demonstrates that he is not describing events that actually occurred.

4. Ninthly, the Tribunal also considers that the applicant has given conflicting accounts of the events relating to the alleged murder of his cousin. Particularly, the Tribunal notes that in his statement initially filed on 5 January 2017, the applicant set out that on 15 September 2012 his cousin was murdered while returning home at night from [Bazar 1] after finishing his daily business. Later, when interviewed by the delegate in April 2017 in relation to the first visa application, he told the delegate that his cousin was hacked to death by the Awami League who had weapons like a bent knife with a handle, and that he had, along with other family members, gone to the police to report the matter. The applicant then made claims when interviewed by the delegate in relation to his second visa application on 19 March 2021 that together with his father, they were the first to come across his cousin’s body on the ground with stab wounds while walking the same route home as his cousin would have. The applicant also claimed that he and his father called the police to attend the scene. When providing evidence in relation to this event at the Tribunal hearing on 27 April 2023, the applicant said that he had been warned to take a different street home and once home he was later called and told to take his unconscious cousin to the hospital. He had an injury to his head and internal bleeding. His cousin later died and the next day the applicant went to the police station. When asked to comment on these matters, the applicant has submitted in his response of 23 July 2023 that his evidence was consistent. While the Tribunal accepts that the applicant has made a claim since April 2013 that he had a cousin who was murdered, the Tribunal does not accept his accounts of this event have been consistent. The Tribunal considers that the applicant has given different accounts as to the injuries suffered by his cousin causing his death, whether he died at the scene or later, whether he happened upon the body on the same route home or was informed by others. It is expected if this event had occurred in any of the manners described by the applicant, his recollection of the events would have been memorable and consistent. The various changes in the applicant’s evidence on this matter, together with his failure to mention the incident on arrival in Australia or when he filed the first visa application, demonstrate to the Tribunal that the applicant’s claims arising from this event are not reliable.

5. Tenthly, in addition to the above concerns as to the manner of his cousin’s death and the way in which he was informed, the Tribunal did not consider his evidence or claims of the reporting of this matter to the police to be reliable. It is noted that during an identity interview conducted on 6 March 2013, the applicant is recorded as informing the interviewing officer that he had never been to the police station in his local [area]. Then in the first visa application, he claimed that his family went to the police station to lodge a report against an Awami worker but the police would not accept his complaint. In his statement of 5 January 2017, he claimed that his uncle had attended the police to report the applicant’s cousin’s death. Later, when interviewed by the delegate in relation to the second visa application, the applicant claimed that he went to the police station with his father and uncle to file a report about his cousin’s death. He told the Tribunal at the hearing on 27 April 2023 that it was the day after his cousin’s death that he had attended the police station together with his father and other elders to file a complaint. In response to the Tribunal’s concerns, the applicant claimed that he had always given consistent evidence, and that the situation was that he had attended, together with his father and (elderly) uncle. In assessing the totality of the evidence, the Tribunal is not persuaded that the accounts were consistent, and the purpose of the Tribunal’s invitation was to provide the applicant with an opportunity to address the Tribunal’s concerns. He has not done this and the Tribunal has no confidence that the applicant’s evidence on this matter is reliable.

6. Eleventh, in addition to the variations and inconsistencies described above, the applicant introduced a further element to his claim about the murder of his cousin by the Awami League before he departed Bangladesh at the Tribunal hearing. He said that his cousin had left his shop at [Bazar 1] around 9 pm and he had waited with his father at the bazaar for another hour. Before they departed he said that they received a phone call warning them to go a different way home because they were in danger. They took a different route and later when they returned home were told about his cousin. The applicant maintained that on that night the Awami League was also waiting for him and his father, and had they taken the same route home he would also have been killed. This is first time the applicant had made a claim that the Awami League also wanted to kill him after the incident at the bazar. When the Tribunal put to him that he had provided a different version of events, the applicant offered that what he had told the Tribunal was true. However, the Tribunal is not persuaded that it is true, and it demonstrates to the Tribunal his propensity to fabricate and embellish his claims as the review process has progressed.

7. Twelfth, when interviewed by the delegate in relation to his second visa application on 19 March 2021, the applicant made claims that he was the main person in a court case filed by the opponent from the Awami League who killed his cousin. The applicant said that this individual was alleging that the applicant had committed violence against him and that the case was still running in Bangladesh. The applicant had maintained that the case was still running and that his wife and brother were also listed as a part of the case. He told the delegate that his parents had to attend court in relation to this case once a month. This was the first time the applicant had mentioned any claims in relation to being named in proceedings in his home country. The applicant alluded to ongoing proceedings at the Tribunal hearing and said that one of the reasons that he could not return to Bangladesh was because his case was ongoing. The Tribunal sought clarification from him on this issue because he was also maintaining the police would not accept the matter when attempts were made to file a case about the death of his cousin, so on one version of his evidence there was no ongoing case. The applicant adjusted his evidence and claimed what he meant was that the person who killed his cousin was still there. Earlier the applicant had told the Tribunal that those responsible for the death of his cousin had left the district. Once more the applicant adjusted his evidence and claimed that what he meant was that they had left and then came back after a couple of months. However, later in his evidence the applicant again continued to make reference to his outstanding case. In the Tribunal’s invitation to comment dated 5 July 2023, the applicant was invited to address the claim provided to the delegate in his second visa application that he was the main person in a court case. The applicant offered in his response received on 23 July 2023, that he could confirm that his family not attending court these days. The applicant did not confirm whether he was still maintaining that he had been named in a court case in Bangladesh or engage with the Tribunal’s concern regarding the reliability of the claim. Consequently, the Tribunal does not accept that the applicant was ever named in a court case. Furthermore, the unsatisfactory nature of the applicant’s evidence on this matter further satisfies the Tribunal that the applicant’s claims about his experiences in Bangladesh lack credibility.  

8. Thirteenth, it is also of concern for the Tribunal that the applicant is considered not to have provided consistent detail about his employment in Bangladesh. In the first visa application, the applicant initially claimed that he had worked for one year as a [Occupation 1] in 2004, and thereafter he had worked in his father’s business until he departed Bangladesh. Yet the applicant told the delegate at his interview in April 2017 that he had only ever worked in his father’s [store] in [Bazar 1]. Again, during his interview before the delegate in relation to his second visa application on 19 March 2021, he claimed that he had only ever worked in his father’s shop in [Bazar 1]. Yet in his evidence to the Tribunal at the hearing on 27 April 2023, he claimed to have worked as a [Occupation 1] for a business in [Bazar 1] for five or six years before he had departed Bangladesh. The evidence that his previous employment was outside his father’s business was notable for the Tribunal because it distances him from events which occurred at his father’s shop that give rise to his claim for protection. The applicant appeared to correct his evidence at the hearing and suggest that he worked part-time for both businesses. When further asked to comment on this matter post hearing following the Tribunal’s correspondence of 5 July 2023, the applicant offered that he worked as a [Occupation 1] in 2004, and he confirmed that he had assisted his father in the operation of his shop in [Bazar 1] between 2005 and 2012. This response was inconsistent with his evidence at hearing that he was still working as a [Occupation 1] up until he departed Bangladesh. This was not a minor reference in the applicant’s evidence at hearing. The Tribunal explored it further and sought details of his days of work, the identity of his employer, the political persuasion of his employer and whether they were also subject to claimed extortion attempts. The Tribunal is not satisfied that the applicant has given consistent evidence about his employment before he departed Bangladesh, and arising from this the Tribunal is not satisfied that his claims regarding incidents that occurred while working at his father’s store are factual or reliable.

9. Fourteenth, the Tribunal is not satisfied that the claim of relocation of the applicant’s family following the incident at [Bazar 1] is made out. It is noted that in his first and second visa application the applicant has set out that his parents continue to reside in the family home. As set out above, the applicant told the Tribunal at the hearing that nothing had immediately happened to his family following the death of his cousin as the perpetrators had left the area and he shortly departed the country. He also introduced a claim at hearing that the Awami League had immediately closed his father’s business and his father could not return to it. When questioned further the applicant said that the Awami League had actually done this at the time to all BNP related businesses. It was claimed to have affected about 30 businesses. When the Tribunal raised with the applicant at the hearing the reliability of this claim considering his written statement provided to the Department in January 2017 and with his second visa application in September 2020 where he stated that his father closed his business and relocated the applicant’s family, including his wife and child to [an area] on the outskirts of Comilla City. The applicant again adjusted his evidence and said that his father would go for a while whenever they were under pressure and stay with the applicant’s wife. Having regard to these additions and the numerous concerns of the Tribunal as discussed, it is not accepted that the applicant’s father closed his business due to fear of the Awami League or that the Awami League closed it for him. It also does not accept that the applicant’s family was forced to relocate either indefinitely for a limited period. The Tribunal considers these adjustments and additions to his claims are a further sign that the applicant’s account of his experiences in Bangladesh which he claims give rise to protection obligations are not factual.

10. Fifteenth, the Tribunal is troubled by the changes that have developed in the applicant’s evidence regarding whether two of his brothers remain in Bangladesh. Particularly, the Tribunal notes that during his entry interview on 20 January 2013, the applicant claimed that all of his brothers were residing in Bangladesh and at this time he spoke to the officer about his brothers pursuing their studies and the difficulty of the payment of these fees. Then during an identity interview conducted on 6 March 2013, the applicant is recorded as informing the interviewing officer that all his brothers were residing in Bangladesh. When he filed the first visa application on 16 March 2016, he set out that his brothers were residing in Bangladesh. Then in his interview with the delegate in relation to his first visa application in April 2017, he claimed to have one brother living in [Country 4] and another living in [Country 3]. However, when he filed his second visa application in September 2020, the applicant again set out that all his brothers were resident in Bangladesh. He told the delegate during his interview in relation to his second visa application that his brother has departed for [Country 4] in 2014. Yet his evidence at hearing before the Tribunal on 27 April 2023 was that he had brothers in [Country 4] and [Country 3], and that one had departed Bangladesh in late 2012 and the other in early 2013. These differences were important to the Tribunal because it raised further doubt for the Tribunal that the applicant’s claimed fears of the Awami League due to events that he claimed had occurred in Bangladesh were factual or reliable. The applicant in reply to the Tribunal’s concerns, dated 23 July 2023, offered that at the entry interview and until March 2013, his brothers were in Bangladesh and then travelled to [Country 3] and [Country 4] after this period. This does not address the discrepancies in his first and second visa application forms or the interview with the delegate in March 2021. The Tribunal also found the evidence of the applicant regarding his brothers’ visa statuses overseas, and whether his brother in [Country 4] had made protection claims, to be evasive. The applicant alleged that they did not discuss such things. Overall, the Tribunal is not satisfied with the applicant’s responses, and it considers that the unsatisfactory nature of the evidence demonstrates that they also did not have to depart Bangladesh urgently for fear of the Awami League as claimed.

1. The Tribunal has also considered the evidence of the applicant at hearing that his parents are pressured by the Awami League. The applicant’s evidence as to the nature of this pressures was either pressure for donations or to do with his cousin’s case, or the case against the applicant. As set out above, the Tribunal was not satisfied that there was a case against the applicant, it is not satisfied that his cousin was murdered by the Awami League in the manner he has claimed and due to the overall concerns about the credibility of the applicant it is not satisfied that his family are generally harassed or under pressure from the Awami League because they are BNP supporters. The Tribunal found the applicant’s evidence on this matter to be vague, lacking in detail and speculative. It is not satisfied that his family are being pressured as claimed or there is a real risk that he will face serious harm if returned to Bangladesh for this reason.

2. In assessing the totality of the evidence and claims of the applicant, the Tribunal does not accept that his father was a [Position 2]/[Position 1] or number three MP of the BNP in his local area, that he was actively engaged with the BNP or that he was a member of the BNP in the past. It is not accepted that he was ever involved in organising meetings, presenting speeches or organising rallies 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 or active during election times. 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 beaten on the way home from a rally or on the way home from meeting. It is not accepted that the Awami League targeted his family in their business, or that his cousin was killed by the Awami League or that the Awami League placed a false case on the applicant. 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.

3. The Tribunal accepts that the applicant may have worked in a shop as a [Occupation 1] in [Bazar 1]. It is accepted that his father may also have operated a shop in the same bazar. The Tribunal has had regard to country information and accepts that corruption is widespread in Bangladesh,[4] and that his employer and his father as shop owners may have at times been asked for protection money by local racketeers and this would have impacted the business’s profitability. Tribunal is not persuaded that the applicant’s family or his employer were specifically targeted because of their support for the BNP, or that those demanding money did so on the basis of being members of the Awami League. The applicant himself was not a shop owner. Tribunal is not satisfied that the applicant was ever harmed by this conduct in the past or that he would be subjected to serious harm for this reason in the future. Furthermore, the Tribunal finds that the reason for the extortion is economic and not for a reason within the definition of s 5(J) of the Act. In addition, the Tribunal also finds on the evidence of the applicant that his former employer has closed his shop in the bazar and that his father and other family members no longer operate businesses in the bazar. His wife and child have left his village and are living in Comilla city. The Tribunal is therefore not satisfied that there is real chance that the applicant would be in a situation where he would be subject to extortion attempts from racketeers in the [Bazar 1] were he to return to Bangladesh in the reasonably foreseeable future.

   [4] DFAT Country Information Report, Bangladesh, 30 November 2022 at paragraph 2.14.

4. The Tribunal accepts that the applicant has joined the BNP in Australia, and it has considered whether such conduct has been engaged with purely to assist his claims for protection and his membership is to be excluded from consideration pursuant to s 91R of the Act. In this regard is noted that although the applicant had been living, according to his visa application in [specified] area since 2014, these claims did not arise until his second visa application lodged in 2020. The applicant claimed that he heard about the organisation in his local area by word of mouth. It is noted that the letters he has submitted to the Department with his second visa application and to the Tribunal at the hearing, from [Mr E] claim that he is known to the writer since 2017. However, overall it accepts that contact with the Bangladeshi diaspora in Australia would genuinely hold an attraction for the applicant. It is also accepted that he may have engaged in the conduct he told the Tribunal and attended some programs or social activities and listened to discussions from leaders. This low level activity is not considered consistent with his claims of regular meetings, campaigning, rallies and speeches he would have the Tribunal accept he engaged in while in Bangladesh and further highlights to the Tribunal that such activity in his home country was not factual. Nevertheless from the applicant’s own evidence of his activity in Australia, 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.

5. 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 notes that Bangladesh is approaching another election in January 2024 and political discourse is likely to increase in the relatively near future. 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 makes this finding noting the applicant has attended some programs or social activities for the BNP in Australia. 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.[5] The Tribunal finds that he does not face 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.

   [5]

6. The Tribunal then turned to consider the claims of the applicant as a failed asylum seeker. Although the applicant did not specifically identify this claim in his written submissions or oral evidence to the Tribunal, it is accepted that if his application for 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.[6] Given the findings above as to the applicant’s lack of profile in the past in Bangladesh, the inconsequential nature of his activities in Australia 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.

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

7. 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.

8. 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?

9. 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).

10. The Tribunal is not satisfied that the applicant would be subjected to serious harm because he is a member or supporter of the BNP as claimed, or that his father is a member and an officeholder or the BNP, or that he has attended BNP programs and social activities in Australia, or due to his political profile or that he is a failed asylum seeker. It does not accept that his father or former employer were targeted for extortion by the Awami League or that his cousin was killed by the Awami League, or that he was ever harmed by the Awami League or the subject of a false case brought by the Awami League as claimed. It accepts that he may have worked for businesses that we subject to extortion in the past, however it is not satisfied that the applicant was ever targeted or personally harmed for this reason. It is not satisfied that the applicant would return to work [Bazar 1] for the reasons set out above and finds that there is not a real risk that he would be subject to significant harm were he to be removed from Australia to Bangladesh for this reason. 

11. 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.

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

13. 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

14. The Tribunal affirms the decision not to grant the applicant a protection visa.

    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.

    …