1907885 (Refugee)

1907885 (Refugee) [2024] AATA 2463 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907885

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Peter Papadopoulos
DATE:28 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 March 2024 at 10:48am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party activist – particular social group – failed asylum seeker from a western country – political violence – physical assault – false criminal proceedings – political disappearances – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 5AA, 46, 56, 65, 91, 189, 411, 412, 427, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
DBB16 v MIBP (2018) 260 FCR 447
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old male who claims to be a citizen of Bangladesh.
The applicant as represented in relation to the review.
The issue in this case is whether the applicant meets the refugee criterion set out in s 36(2)(a) of the Act, and if not, whether he is entitled to complementary protection under s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review.
Procedural history
The applicant departed Bangladesh sometime in late 2012, and arrived [in] January 2013 by sea at the Territory of Ashmore and Cartier Islands (Ashmore). He was detained under s 189(3) of the Act and transferred to the [named] Detention Centre [in City 1].
Prior to June 2013, asylum seekers who arrived by boat at Ashmore were considered to be Unauthorised Maritime Arrivals (UMAs) and subject to the bar against UMAs applying for visas under s 46A of the Act. Typically, they were brought onshore and granted bridging visas and Temporary Safe Haven visas (TSHVs). At the time it was considered that the grant of the bridging visa removed the s 46A bar (applicable to UMAs), so the TSHVs were granted to invoke the s 91K bar, with the object being to prevent any boat arrivals from applying for a permanent protection visa in Australia.
As the applicant was initially considered to be a UMA, he was granted a TSHV on 8 May 2013, triggering, as it was thought at that time, the s 91K bar.
First SHEV application (delegate’s decision in this application under review by Tribunal in case number 1907885)
On 16 August 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (Class XE)(Subclass 790) visa (the first SHEV application) and a delegate of the Minister refused the application on 13 April 2018. This is the decision under review.
On 18 April 2018, the applicant applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision on the first SHEV application, as he was thought to be the subject of the ‘fast track’ review process.
However, on 6 August 2018, the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447 found an asylum seeker not to be a UMA through the act of entering Australia by sea at Ashmore. In essence, the Court declared that the Minister had no power to appoint the Western Lagoon of Ashmore Island to be a port. This meant that the appellant had not ‘entered Australia by sea’ as defined, and therefore he was not a UMA as defined under s 5AA of the Act at the time (prior to July 2013).
Accordingly, subject to certain exceptions, a decision to refuse a person who arrived by sea at Ashmore a Temporary Protection Visa (TPV), or a SHEV, is in fact a ‘Part 7 reviewable decision’ under s 411 of the Act and can be reviewed by the Migration and Refugee Division of this Tribunal provided the review application meets the usual requirements under s 412.
On 3 December 2018, the IAA advised the applicant that it would not review the delegate’s decision on the first SHEV application as the applicant was not eligible as a fast track applicant.
On 23 March 2019, the applicant was renotified of the original decision by the Department, and advised of his review rights with this Tribunal.
On 2 April 2019, the applicant lodged an application for a review with this Tribunal of the decision to refuse his first SHEV application. This is the present review application and is known as case number 1907885.
Second SHEV application (delegate’s decision in this application reviewed by the Tribunal in case number 2113375)
On 10 September 2020, the applicant was notified that the Minister had lifted the s 91K bar to allow him an opportunity to apply again for a visa. 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 ss 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, on 24 September 2020, the applicant made a second application for a Safe Haven Enterprise Visa (Class XE)(Subclass 790) visa (the second SHEV application). This application was refused by a delegate of the Minister for Home Affairs on 30 September 2021. The applicant applied to have his second SHEV application refusal reviewed by the Tribunal on 1 October 2021. That review application is known as case number 2113375.
However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, the TSHV grants in the Ashmore affected cases were invalid, the s 91K bar was not applicable and the Tribunal could undertake a substantive review of decisions to refuse these applicants SHEVs or TPVs. Accordingly, the applicant’s first SHEV application was not subject to the s 91K bar. It was a valid visa application and the applicant had made a valid application to the Tribunal for review of that delegate’s decision. As a result, the s 48B determination is not applicable, the s 48A bar was not lifted and the post-bar lift visa applications made following the purported bar lift were invalid. Therefore, the second SHEV application is, and always was, barred under s 48A. Therefore, the second SHEV application was invalid. On this basis, the Tribunal made a decision (in case number 2113375) on 15 June 2023 in which it set aside the delegate’s decision made on 30 September 2021 to refuse the applicant a SHEV and substituted it with a decision that the second SHEV application was not valid.
Combined review applications
In view of the above circumstances, which have resulted in the applicant having two applications for review of two separate decisions made by delegates of the Minister, the Tribunal combined the two reviews pursuant to s 427(2). Despite the second SHEV application being invalid, the Tribunal, with the applicant’s consent, has considered all claims and evidence submitted in relation to both review applications for the purpose of reviewing the delegate’s decision with respect to the first SHEV application.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
CLAIMS AND EVIDENCE PROVIDED TO THE DEPARTMENT
Entry Interview – 21 January 2013
On 21 January 2013, the applicant was interviewed in [City 1] by a Departmental officer with the assistance of an interpreter in the English and Bengali languages. A record of the entry interview details the following transcript in relation to the question ‘Why did you leave your country of nationality?’:
Why did you leave Bangladesh? Yes I left Bangladesh because of a political issue. The political issue is when I was in Dhaka I had a brother who was living previously in Dhaka and he has got friends in [Country 1] and he contacted his friends about me travelling to [Country 1]. For the travelling my brother sold the property. My brother spoke with his friend who is living in [Country 1] and then I came.
You said you left BANGLADESH because of a political issue is that correct? Yes.
What was the political issue? When my father was alive he used to be the [Position 1] in the village. After he deceased all the pressure from the political party came to me. The political party came to my home and they threatened me and they hit to my house. My family told me that we don't need you to be in this country please leave the village and go somewhere. Then I left the village and went to Dhaka with my brothers.
Why did the political party come to your house? We used to support the BNP is a political party which stands for BANGLADESH NATIONAL POLITICAL. Our opposition party is AWAM LEAGUE. So the torture party is AWAM LEAGUE to us.
You say the torture party, why did you say that? The torturing means the AWAM LEAGUE asked us to join them but we didn't join them because my father used to support the BNP. Also I was beaten by the BNP party that is why I mentioned the torture.
When were you beaten? 2009 before I left the country.
You said you left the country in 2012, why did it take you 3 years? I moved place I came to Dhaka.
Did they have any contact with you when you were in DHAKA? Within 3 years in time I have never been back to my village unless it is a special situation like Ramadan or something like that. Nothing happened to me in DHAKA.
Just to confirm, nothing happened with you at DHAKA is that correct? No. No problems while I was in DHAKA.
Why did you leave Bangladesh then if you were safe in Dhaka? So there is no benefits to me to stay in Dhaka because I cannot go back to see my village and I notice that the situation is getting worse and worse divided and in future it might happen that we might be in danger.
What might you be in danger of in the future? Anything will happen in the future means that before when I was in the country, there was protests about the election. Also the corruption is everywhere when the election is coming. There are fights party to party and there are terrible things happening especially when the elections come closer that make me to leave the country.
Are there any other reasons why you left Bangladesh? I have another reason to give you. In Bangladesh I was born from my parents and I was in my mother's womb one day and she gave me the birth and I have seen the world and I have the shameful situation in my country whenever my mother asked me to buy her something I could not buy her. It is a great shame to me as a human and I cannot tolerates that.
A record of that entry interview details the following transcript in relation to the question ‘Have you or any members of your family been associated or involved with any political group or organisation?’:
My father used to be a [Position 1] in [Village 1] which is a very big village in the area. He used to be the [Position 1] for 35 years. His character was fantastic and he was awarded by the president of Bangladesh.
Have any other members of your family been involved with political groups? No.
What political group was your father involved in again? BNP.
The transcript also reveals that the applicant answered ‘No’ to the following questions at the entry interview:
·     Were you or any members of your family involved in any activities or protests against the government?
·     Are you a member of any particular social or religious group? (For example - Sports group, Youth group, or a member of a particular church)
·     Have you served with a police, security, or intelligence organisation?
·     Were you ever arrested or detained by the police or security organisations?
·     Did the police and security or intelligence organisations impact on your day to day life in your home country?
·     Were there any armed groups, political groups, or religious groups operating in the area you lived?
Identity Interview – 3 March 2013
On 3 March 2013, the applicant was interviewed by a Departmental officer with the assistance of an interpreter in the English and Bengali languages. The Tribunal has listened to a recording of that interview and notes the following discussion in relation to the applicant’s awareness of and participation in recent elections in Bangladesh:
When was the last election? I believe 2010, roughly I can say is 2010.
Which party is in power? After that election Sheik Hasina came into power.
What party is she? Awami League.
Are you sure it is 2010? I am not sure.
Did you vote in that election? No.
Why not? Because I had a problem in my area so I didn’t go to my area.
The first SHEV application (delegate’s decision in this application under review by Tribunal in case number 1907885)
On 16 August 2016, the applicant lodged the first SHEV application.
Statement signed on 15 September 2016
In a statement signed by the applicant on 15 September 2016, the applicant raised the following claims:
Problems in Bangladesh
Many members of my family have had significant involvement with the Bangladesh National Party (BNP). My father was the [Position 1] of the BNP in the [District 1] district of Bangladesh for 35 years. Prior to [specified year], my [named Relative A], was the [Leader 1] of the [Agency 1] and then a BNP [Position 2]. Another [relative], [Relative B], was formerly the [Position 1] of [District 1] for 15 years. My [named Relative C], was a Member of Parliament for the BNP until he was kidnapped (see below). Additionally, I also used to support BNP activities.
I did not have a formal position with the BNP however I did get involved in organising
meetings for the BNP and summoning people to join the meeting. I would also be
involved in political rallies.
After my father died in 2003, I was subjected to pressure from others in the Awami
League to join them. This was a period of political unrest. I rejected offers to join the
Awami League and for this reason I fear for my safety. In 2005, the Awami League
also filed a case against my [Relative B] and I. The case alleged that we and others caused unrest by organising a BNP meeting. It was dismissed within two
months of being filed because it was false.
After this, I was subjected to harassment by the police from time to time. When I
asked why, I was told by my family that the Awami League wanted me to join their
party. I think this was because of my family's standing and reputation in the
community and the possibility that the Awami League would gain more votes from
me joining.
In 2008, I was beaten by six or seven people from the Awami League because I was
the son of the BNP [Position 1] and because of my continued involvement with the
BNP. I was in the market and I was hit in the back of my head and my forehead with
a stick. I fell to the ground and was picked up again by local villagers and taken to the
hospital. I required stitches in my head.
I did not report this incident to the police because I feared retaliation from the Awami
League.
Then I left the village of [District 1] and went to live in Dhaka with my cousins.
From 2008 until 2012 I lived in Dhaka. Due to the incidents I have mentioned, I only
returned to [District 1] for special festivals or periods such as Ramadan. This was only
supposed to be a transitional arrangement because my family were very insistent
that I should leave Bangladesh altogether for my own safety.
Ultimately, I left Bangladesh because of another political issue. In 2012, the Awami
League was in power. [In] April of that year, my [Relative C], was 'disappeared' from Dhaka. To this day, he has not been found. At the same time,
the Awami League was sending letters to my family back in [District 1]. My family told
my brother about these letters and he passed their details onto me. Generally
speaking, the letters said that I would be harmed if I was not persuaded to return to
[District 1]. The letters insinuated that I might be kidnapped like [Relative C] was. I was very concerned by these threats.
In mid-2012, my brother in Dhaka had friends in [Country 1] and he contacted his
friends to obtain information about me travelling to [Country 1]. To facilitate my travel
my brother sold property and arranged travel documents. I came to Australia via
[Country 1] and Jakarta, Indonesia.
My fears if I am returned to Bangladesh
I do not think that I would be safe anywhere in Bangladesh if I was to return.
I have already experienced harm in my home village of [District 1]. I understand that the Awami League now have connections in the local police. I have good reasons to
believe that, if I returned to [District 1], the Awami League would bribe the police to
inflict harm against me.
Even if I was to live in another place in Bangladesh, I do not think I will be safe. The
Awami League has a history of threatening me and my other family members. In
particular, I fear that I would be kidnapped in the same manner as my
[Relative C]. Because of my family's high profile, this could happen anywhere in the
country. If Awami League members discover my location, I would probably be targeted in the same ways as before. The only way to remain permanently beyond the reach of the Awami League is to stay outside of Bangladesh.
If I am returned to Bangladesh, I am afraid that I will be subjected to serious harm
from the Awami League including lawsuits, beatings, abduction and possibly death.
I am afraid that I would not be protected by anyone in Bangladesh, including the
authorities, because the police in Bangladesh are susceptible to bribery from the
Awami League.
Documentary evidence provided to the Department

On 6 October 2016, the Department received the following documents:
·     The applicant’s Bangladeshi citizenship certificate, issued by [an official] of [District 1] [in] January 2013;
·     The applicant’s Bangladeshi birth certificate, issued in [District 1] [in] January 2013;
·     An injury certificate issued [in] July 2016 indicating that the applicant attended an emergency room for treatment for a blunt weapon injury to his [head] that he sustained around 11pm on [a day in] February 2008;
·     First Information Report lodged by [Mr A] in which it is alleged that on [a day in] February 2005 the applicant, [Relative B] and a group of 11 others had a political dispute with him and injured him;
·     First Information Report lodged by [Mr B] in which it is alleged that around 6-6.30pm on [the day in] February 2005 the applicant, [Relative B] and a group of 11 others blocked a road outside [a named location] in [District 1] where they gathered illegally and injured others ‘with motive or murder’;
·     First Information Report lodged by [Mr A] in which it is alleged that the applicant and a group of up to 40 others attacked him and other Awami League supporters on [a day in] March 2005 at [a named location];
·     A general letter of support from [Mr C], BNP President [District 1] dated 1 January 2015.
Departmental interview
On 22 March 2018, the applicant was interviewed in Sydney by a Departmental officer with the assistance of an interpreter in the English and Bengali languages. The Tribunal has listened to a recording of that interview and observes that the applicant provided the following testimony at interview:
·     His family is and was heavily involved in the BNP:
o   His [Relative A] was a retired [Leader 1] before he died in 2013 [details deleted]. He did know much about him except that he was a good man, who gave his family some property in [District 1] and lived in the [specified] area of Dhaka before his death.
o   His father, [Father A], was a BNP [Position 1] in [District 1] for 35 years before he died in 2003.
o   His [relatives] were involved with the BNP and his cousins have ‘good BNP positions’. Some were advisers to the BNP [leadership].
o   His brothers were BNP members.
·     He started getting involved in politics in 2003. He was not a member but would visit BNP offices and help out by encouraging people to attend scheduled BNP seminars and meetings.
·     In 2005, Awami League people filed a false case against him, his [relative] and a lot of other villagers in [Village 2], [District 1]. The case was dismissed later in 2005. He avoided jail because his[Relative B] was a BNP [Position 1] who had great influence.
·     He moved from [Village 2], [District 1] to Dhaka in 2005. He lived with family in Dhaka and helped his cousin there by picking up his cousin’s children from school. In return, his cousin gave him pocket money. He would occasionally visit [Village 2], [District 1] after he moved to Dhaka.
·     In 2008, his family told him not to return to [Village 2], [District 1] because of problems there. However, he went back to [Village 2], [District 1] and with the help of 50 or 60 of his boys he encouraged people to attend scheduled BNP seminars and meetings. He was attacked there while he was with his group of 50 or 60 ‘of his boys’. He was [stabbed] and [hit]. He again avoided jail because his[Relative B] was a BNP [Position 1] who had great influence.
·     In 2010 there was a national election but he was unable to recall the BNP’s policies and platform in that election campaign.
·     In 2011, his [Brother A] moved to [Country 2] because of political problems in Bangladesh.
·     In 2012, his [Relative C], a BNP politician was kidnapped. [Relative C] was married to his [Relative D variant]. At this time he did not experience any problems or harassment in Dhaka, however some of his family members in [District 1] were harassed and pressured to join the Awami League. They were mainly being pressured by [name] who was an advisor to Prime Minister Sheikh Hasina. The Awami League was sending letters to his family in [District 1] which stated that he would be harmed and insinuated that he might be kidnapped like [Relative C]. His brother suggested he leave Bangladesh and go to Australia.
·     Since he arrived in Australia, his family members kept being harassed by the lodgment of false cases against them and most of the time they could not stay in their own homes overnight.
Post-interview submissions
On 5 April 2018, the Department received a legal submission from the applicant’s representative along with copies of six Family Register Certificates issued by the [District 1] Municipality Office, [District 1] and a copy of [Relative B’s] Bangladesh National ID Card. The representative argued, among other things, that the applicant was related to the retired [Leader 1], indicating that the retired [Leader 1] was the son of [Relative E], thereby making the retired [Leader 1] the applicant's [specified relative].
The delegate’s decision
On 13 April 2018, the delegate refused to grant the applicant a SHEV.
The delegate found the applicant’s testimony in relation to various claimed family members to be undetailed and vague. The delegate noted that these claimed relationships had not been detailed at the entry interview and, taking into account a range of country information about the ease with which fraudulent documents can be obtained in Bangladesh,[1] found that the various Family Register Certificates issued by the [District 1] Municipality Office, [District 1] were not genuine. The delegate also found that the applicant ‘knew almost nothing of the political situation in Bangladesh’ and that it was implausible that at [a young age] years of age he had a following of about 50 or 60 men that he would mobilise when he was visiting [District 1]. On this basis, the delegate did not accept the following about the applicant:
·     That his family were being targeted by the authorities when the BNP were still in power.
·     That the late [Leader 1] was his [Relative A] and/or a member of his family.
·     That he is related to [Relative C].
·     That he is related to [Relative B].
·     That he is or was a member of the BNP.
·     That he was a BNP activist.
·     That he was hiding in Dhaka to avoid harm from Awami League officials and supporters.
[1] ‘Rohingya refugees in Bangladesh and Thailand’, Danish Immigration Service, 01 January 2011, CISD9559B11859; ‘Country Policy and Information Note Bangladesh - Background information, including actors of protection, and internal relocation’, UK Home Office, 25 January 2018, OG9EF76798; ‘Country Policy and Information Note Bangladesh - Background information, including actors of protection, and internal relocation’, UK Home Office, 25 January 2018, OG9EF76798; D105263.E Bangladesh: Reports of fraudulent documents (2011-2015), OGFDFC61A41; ‘BGD100388.E Bangladesh: Prevalence of fraudulent, forged or fake documents and genuine documents obtained by fraudulent means, including the degree of difficulty involved in obtaining such documents or through such means’, Immigration and Refugee Board of Canada, 08 August 2005, CIS9BE2467788; DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade, 2 February 2018, para 5.24
The delegate did accept the following about the applicant:
·     That he is a non-active supporter of the BNP.
·     That his father was the BNP [Position 1] of [District 1].
·     That if returned to Bangladesh he may be considered a failed asylum seeker from a western country.
The delegate determined that Australia did not owe the applicant protection obligations, relying upon country information which indicated:
· recent returnees to Bangladesh have not been subject to any adverse attention by the authorities or others and provided that most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily.[2]
· lower-level BNP supporters are generally not pursued or harmed by rivals and while relatives of senior BNP leaders had been threatened,[3] the delegate observed that his father was at the lowest level of politics, had died in 2003 and there was little persuasive evidence of his family being targeted since.
IAA referral and re-notification of the delegate’s decision
[2] DFAT Country Information Report Bangladesh - July 2016, Department of Foreign Affairs and Trade, 5 July 2016; Bangladesh - Country Reports on Human Rights Practices 2015, US Department of State, 13 April 2016, OGD95BE926166; Operational Guidance Note Bangladesh, UK Home Office, 16 September 2013, OGC0D145418
[3] ‘Too many enemies: Mobilization, marginalization, and political violence’, Terrorism and Political Violence, Routledge, 22 January 2016, CIS38A8012299; ‘The Distribution of Political Violence in Bangladesh’, Conflict Research Group, 1 January 2015, CISEC96CF1859; Bangladesh: Political Violence involving the Bangladesh Nationalist Party and the Awami League, September 2013, CR801F5B637
On 18 April 2018, the applicant’s matter was referred to the IAA for review.
The following material was provided to the IAA:
·A submission from the representative dated 9 May 2018;
·Statement by [Relative F] dated 4 May 2018;
·Screenshot of a message received from [Relative F];
·Statement by [Relative D] (statement taken in May 2018 via telephone by [Representative A] at [Agency 2]);
·A partial family tree for the applicant;
·A BNP website extract showing [Mr C] as the [Position 3] of the BNP Bangladesh [specified] Committee (downloaded 5 September 2018);
·Copy of two online media articles:
o[source deleted];[4]
o[source deleted].[5]
[4] Accessible at [Source deleted.]
[5] Accessible at [Source deleted.]
On 30 November 2018, the IAA notified the applicant that:
·     his case had been referred to it in error;
·     the delegate’s decision was not a fast-track reviewable decision;
·     it would not be conducting a review of his case; and
·     the Department would contact him in relation to any other review rights he may have.
On 23 March 2019, the Department renotified the applicant of the delegate’s decision and advised that he could seek review of that decision at the Tribunal under Part 7 of the Act.
The applicant sought review of the delegate’s decision which is the subject of the present review application.
The second SHEV application (delegate’s decision in this application reviewed by the Tribunal in case number 2113375)
On 24 September 2020, the applicant purportedly made the second SHEV application.
Statement signed on 17 August 2021
In a statement signed on 17 August 2021, the applicant referred to his statement of 15 September 2016 and indicated that he had mistakenly referred to [Relative C name] as his [specified relationship] in that earlier statement. He corrected this error by indicating that [Relative C] was his [specified relative]. He also raised the following additional claims:
· He had a [relative] named [Mr C] who was the adviser to the BNP [Position 1]. At a peaceful meeting in the [District 2] in Dhaka before the 2018 general election, [Mr C] was arrested by police and then detained for 3-4 months. [Mr C] was assaulted and tortured in detention. [Mr C] was released after the election in December 2018. He spoke to [Mr C] after his release and was told that ‘he was in a bad way’. He later heard that [Mr C] had [medical condition 1] and died in hospital [in] 2020. He believes [Mr C’s] death ‘was caused by his suffering during his time in detention’.
· In 2018, he went to a BNP protest at [location 1] in Sydney protesting against the visit of Prime Minister Sheik Hasina. He chanted ‘[a slogan]’ and held up or stood behind anti-Awami League banners and signs. The protest was covered in the news in Australia and Bangladesh. A friend posted on [social media] a picture of him at the protest and he was tagged in these [posts]. Awami League officials and supporters then contacted his family by phone and on [social media]; [a named official] called his [Brother B]. Awami League cadres broke into his family’s home and threatened them. He and his family believe that [the named official] told the cadres to do this. His family were scared and asked him to stop performing political activities in Australia or posting his political activities on [social media].
Departmental interview
On 19 August 2021, the applicant was interviewed in Sydney by a Departmental officer with the assistance of an interpreter in the English and Bengali languages. The Tribunal has listened to a recording of that interview and observes that the applicant discussed the following claims at interview:
·     His family is and was heavily involved in the BNP:
o   His [Relative A], was a retired [Leader 1] before he died in 2013. He did know much about the retired [Leader 1] but would see him during festivals in [District 1] every 3 or 4 months. His [brother] was closer to the retired [Leader 1]. The Awami League never harmed the retired [Leader 1].
o   [Relative B] is [related to] the retired [Leader 1], and is therefore a relative. [Relative B] had been [an occupation 1 overseas] and had also been a [Position 1] of [District 1] for 15 years. [Relative B] had been harassed by the Awami League through the filing of the false case in which the applicant was also implicated. Otherwise, [Relative B] had not been harmed. [Relative B] is now old and still lives in [District 1].
o   His father, [Father A], was a BNP [Position 1] if his village in [District 1] for 15 years before he died in 2003. There was a mistake in his earlier written statement lodged with the Department when he said his father was a [Position 1] for 35 years. He explained that ‘they wrote it wrong’.
o   His [Relative C], was a Member of Parliament representing [District 3] but he did not know when he became a MP.
o   His [relative], [Mr C], was a [Position 4] of BNP. He was arrested at a meeting in 2018, interrogated ‘badly’ by the police. He hired a lawyer for his court case and was released following ill health in jail. He was released from jail sometime after the election and died in 2020.
o   His [named Relative G], is a BNP Secretary in [District 1].
o   He and his brother [Brother A] had false attempted murder charges filed against them in 2003. [Brother A] escaped Bangladesh by going to [Country 2]. With the retired [Leader 1’s] help, these charges were later dismissed by [Court 1].
·     He became a member of the BNP in 2005. He paid a membership fee of 5 taka per month. He maintained his membership until he left Bangladesh in 2012. He did not hold any roles in the BNP.
·     In 2005, Awami League people filed a false case against him and [Relative B]. There were no other false charges made against him in Bangladesh.
·     He was beaten with a hockey stick and a steel bar in [District 1].
·     He moved from [Village 2], [District 1] to Dhaka in 2005. He lived with family in Dhaka and helped his ‘cousin’s brother’ by driving a car there. He lived in Dhaka until 2012.
·     He had no voter identification in Bangladesh. He did not even know when Bangaldesh started using the voter identification systems. He voted in 2005 under the old system and only used a voter number. After 2005, he voted in district elections but not in the national elections. When asked how he voted without a voter’s identification, he said that the voter’s identification was introduced after he left Bangladesh.
·     In 2012, his family members received threatening letters on three occasions from an Awami League Secretary in [District 1].
·     In 2015 or 2016, the Awami League threatened his sister’s family. They broke the windows and doors of her home. The police came ‘but did nothing because the Awami League was in power’.
·     In 2018, he went to a BNP protest at [location 1] in Sydney protesting against the visit of Prime Minister Sheik Hasina. This is the only political activity he has undertaken in Australia. He held up a picture of his ‘disappeared’ [Relative C]. He showed the delegate a picture of him and a group of people at the rally. He claimed that this picture was posted on [social media] by [a named] protester, and that an Awami League person saw it and threatened his family back in Bangladesh. He did not have a copy of the original [social media] post and stated that he had deleted everything from [social media]. He later stated that he lost his password and could not access the pictures on [this social media] account.
·     He fears he will be killed or harassed if he returns to Bangaldesh, even if he is not involved in politics.
At interview, the delegate requested pursuant to s 56 of the Act that the applicant provide:
·     scanned copies of his identity documents issued in Australia;
·     evidence that his father was a [Position 1] of the BNP;
·     evidence of his BNP involvement;
·     copies of the original five Family Registration Certificates previously lodged along with NAATI translations;
·     evidence of [Court 1’s] dismissal of the attempted murder case;
·     his BNP membership document and the receipt for his payment of any fee;
·     his Bangladeshi voter identification number;
·     a [social media] post depicting his attendance at a BNP protest in Sydney in 2018.
Post-interview submissions and evidence
On 2 and 4 September 2021, the Department received a legal submission from the applicant’s representative along with the following additional supporting documents including, but not limited to:
·     local government election poster (in Bengali with a NAATI accredited translation) in which the applicant's father is referred to as the BNP [Position 1] candidate;
·     BNP [Parishad 1], [Upazila 1], [District 1] Branch Sub-District Convening Committee list dated 13 November 2011 (in Bengali with a NAATI accredited translation) detailing the applicant as a member of the sub-convening committee for the village of [Village 2];
·     BNP newspaper article (in Bengali with a NAATI accredited translation) in which the applicant’s [Relative G] [detail deleted] is referred to as BNP [District 1] Joint Convener;
·     Certificates of Inheritance for [Relative E], [and other specified relatives] issued by the [District 1] Municipality Office, [District 1] [in] August 2021 (in Bengali with NAATI accredited translations) detailing relationships within the applicant’s family.
The delegate’s decision
On 30 September 2021, the delegate refused to grant the applicant a SHEV pursuant to the second SHEV application.
The delegate made the following findings:
·     The applicant originated from [District 1], Bangladesh.
·     The applicant and his family members are not BNP members or supporters.
·     The applicant was not involved in any BNP activities in Bangladesh.
·     The applicant’s father is not a district or village [Position 1] or a BNP [Position 1] or secretary.
·     The applicant has no family relations with [Relative A], [Relative B], [Relative C], [Mr C] and [Relative F].
·     The applicant’s interactions with [Relative A], [Relative B], [Relative C], [Mr C] and [Relative F] would not result to a conclusion that people would associate him as related to them or that he would be imputed of their political opinion and be targeted for that reason.
·     The applicant or his family members have not been harmed by the Awami League or because of their claimed activities or associations with BNP.
·     The applicant attended one protest in Australia but was done solely for the purpose of strengthening his protection claims.
·     No photo of the applicant in the protest in Australia was posted in [social media].
·     The applicant will return to Bangladesh as a failed asylum seeker.

The delegate also found that whilst the applicant had attended a protest in Australia, this was done solely for the purpose of strengthening his protection claims. The delegate found that no photo of the applicant in the protest in Australia was posted on [social media].
Taking into account the above findings and various country information sources, the delegate determined that Australia did not owe the applicant protection obligations, on account of:
·     his claimed BNP membership and political activities; imputed political opinion due to his father’s political profile; imputed political opinion due to his family relations with [Relative A], [Relative B], [Relative C], [Mr C] and [Relative F];
·     his claims pertaining to corruption in Bangladesh and that the lives of the younger generation are under threat;
·     being a failed asylum seeker;
·     his claimed inability to subsist due to unemployment or for reasons of financial difficulties in Bangladesh.
CLAIMS AND EVIDENCE PROVIDED TO THE TRIBUNAL IN RELATION TO THE SECOND SHEV APPLICATION
The Tribunal was not provided with any additional claims or evidence before making its decision on the second SHEV application on 15 June 2023.
CLAIMS AND EVIDENCE PROVIDED TO THE TRIBUNAL IN RELATION TO THE FIRST SHEV APPLICATION
Pre-hearing submissions and evidence
On 11 August 2023, the Tribunal received an email from the representative in which she indicated that two witnesses were prepared to give oral evidence at a hearing scheduled for 16 August 2023, namely:
· [Relative F], who was a relative of the applicant and could verify the applicant’s family links to influential BNP leaders and members in Bangladesh. A typed statement by [Relative F] (taken via telephone by the representative) was also provided;
· [Relative G]. The representative submitted that this witness was the applicant’s [specified relative] and the BNP [Position 5] in [District 1]. The representative maintained that the witness could attest to the applicant’s political activities and family links to influential BNP leaders and members in Bangladesh. The representative indicated that on 10 August 2023 this witness had been taken to hospital unwell, attaching a [social media] post[6] to demonstrate this. The representative further submitted that the witness’ wife, [detail deleted], advised that she hoped the witness would be well enough to participate in the hearing.
[6][Source deleted.]
On 24 August 2023, the Tribunal notified the applicant that the hearing was rescheduled to 8 September 2023.
The hearing: oral evidence and supporting documents
The applicant appeared before the Tribunal on 8 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Relative F], a relative of the applicant in Bangladesh. The representative also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
Taking into account the nature of the claims raised and the potential that the applicant might not be forthcoming in his evidence, the Tribunal assured him during the making of its preliminary remarks that the hearing was confidential and that nothing said in the hearing would lead to him being identified outside the Tribunal.
During the hearing, the applicant furnished the Tribunal with his Australian Government ImmiCard along with four photographs to support his claims that he is related to [Mr C] (BNP [Position 1] of the [Parishad 1] who died from [medical condition 1] at the age of [age] in December 2019)[7] and [Relative D] (the wife of BNP MP [Relative C][8] who disappeared [in] April 2012). The Tribunal made photocopies of these documents and returned them to the applicant.
[7] [Source deleted.]
[8] [Source deleted.]
Where relevant, the oral evidence of the applicant and [Relative F] is discussed in the Tribunal’s analysis, findings and reasons below.
Post-hearing submissions and evidence
On 23 September 2023, the Tribunal received an email from the representative to which the following documents were attached:
·     Letter from the representative dated 22 September 2023;
·     Attachment A – copies of the four photographs shown by the applicant at hearing (with notations detailing the identity of each person in each photograph) along with a fifth photograph depicting the applicant in amiable company with seven other young Bangladeshi men in an outdoor area (with notations detailing the identity of each person in each photograph, one of whom is [Friend A]);
·     Attachment B – Transcript of selected remarks made by the Applicant during his entry interview (transcript prepared by a NAATI accredited professional);
·     Attachments C, D, E, F and G – Certified copies of the court documents (in Bangla) previously provided to the Department along with NAATI accredited translations of those documents;
·     Attachment H – Statement (taken by the representative on 21 September 2023 without the assistance of an interpreter) from [Relative I] [details deleted];
·     Attachment I – List of names referred to in the application addressing spelling and other naming inconsistencies in previous documents;
·     Attachment J – Statement (taken by the representative on 20 September 2023 with the assistance of an interpreter) from [Friend A], who claims to be the applicant’s friend and fellow BNP supporter from [Village 2], [District 1].
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of reference/receiving country
The applicant claims to be a national of Bangladesh. The applicant does not have, and did not arrive with, a passport. He provided various documents to the Department to establish his identity. He participated in an identity interview with the Department in March 2013 which the Tribunal has listened to. The Department officer was satisfied on his responses that the applicant was a national of Bangladesh. The Tribunal is also satisfied on the evidence of the applicant’s responses regarding his place and date of birth, family and background and the identity documents, that he is a national of Bangladesh and considers Bangladesh is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[9] Fox v Percy (2003) 214 CLR 118
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[10] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[10] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which provides useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25]
[12] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[13] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[14] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[15] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[16]
[14] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[16] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[17] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[18] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[17] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[18] Ibid.
In determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[19] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[20]
[19] MIMA v Rajalingam (1999) 93 FCR 220
[20] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[21] As the Tribunal explained to the applicant at the outset of the hearing, s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[22]
[21] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[22] Sun v MIBP [2016] FCAFC 52 at [69]
In the present case, the Tribunal takes into account the applicant’s lack of familiarity with the Tribunal setting and his limited English language proficiency. The Tribunal has also had regard to the AAT Migration and Refugee Division ‘Guidelines on Vulnerable Persons’.[23] With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.
[23] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)
The Tribunal has also taken into account the AAT’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
The Tribunal acknowledges the substantial time that has passed since the applicant arrived in Australia and his claims for protection were made. His original statement, lodged in support of the first SHEV application and referred to by the applicant in the second SHEV application, was made almost eight years ago in August 2016. He has given evidence since his arrival in 2013, over 11 years ago, in numerous interviews, some of which are years apart. His oral evidence has been given through different interpreters and he had no legal representation in the early stages of the process. The Tribunal acknowledges there would be an impact on his memory and recollection caused by the substantial lapse of time, and that his early entry and identity interviews may have also been impacted by his state of mind from the journey to Australia and circumstances of detention. The Tribunal has taken all of this into consideration in assessing the evidence before it now and making the findings on material facts in relation to his claims.
Assessment of the applicant’s claims
At hearing, the applicant gave evidence relating to his family composition, residences in Bangladesh and Australia, his education and work experience, his membership of a political family in Bangladesh and the nature of harm experienced by some of his family members, his involvement with the BNP and political activities in Bangladesh, his adverse experiences in Bangladesh, his political activities in Australia, and his fears in relation to returning to Bangladesh.
The applicant has put forward various claims for protection in his two SHEV applications and in other material before the Tribunal. The Tribunal has reviewed thee claims in their entirety and generally finds that the applicant fears returning to Bangladesh because he would face harm:
·     from Awami League leaders, members and supporters on account of him belonging to a renowned political family connected with the BNP and his political opinion, actual or otherwise imputed to him by way of his association with his political family members;
·     on account of him being considered a failed asylum seeker from a western country;
·     as a result of corruption in Bangladesh where the lives of the younger generation are under threat;
·     because he will be unable to subsist in Bangladesh due to unemployment or for reasons of financial difficulties.
The Tribunal now turns its consideration towards these claims.
Political family members in Bangladesh
The Tribunal spent considerable time during the hearing exploring the history and composition of the applicant’s family in Bangladesh, the nature and degree of applicant’s relationships with various family members in Bangladesh as well as the degree to which those relationships, individually or cumulatively, made him a person of renown in Bangladesh such that he was, or would be, harmed or otherwise targeted by Awami League leaders, members or supporters.
By way of preliminary finding, the Tribunal accepts that various members of the applicant’s family are, or were, involved with the BNP in Bangaldesh. The Tribunal acknowledges the findings made by the delegates in relation to the two SHEV applications but is satisfied, based upon the oral evidence at hearing and some of the material subsequently provided to the Tribunal, that the applicant hails from a family that has ties with the BNP.
However, based upon the applicant’s testimony at hearing and other material, the Tribunal has serious doubts in relation to the degree to which his familial relationships pose a sound basis upon to rest the majority of his claims. This concern is assessed further in the below but is raised at this juncture in order to provide context to the following analysis of the history and composition of the applicant’s family in Bangladesh along with the nature and degree of his relationships with various family members.
The Tribunal accepts that the applicant’s immediate family composition as follows:
·     his father, [Father A], who died in 2003;
·     his mother, [named], who is [age] years old, living with her youngest daughter [named] in [Village 3], [District 1];
·     his [sibling], who died at the age of [age] before the applicant was born;
·     his [Brother B], who is [age] years old and lives in the family home in [Village 2] with his wife and [family];
·     his [Brother A], who is about [age] years old, left Bangladesh [in] 2011 for [Country 2] where he now resides and is married with [a family];
·     his [Brother C], who is about [age] years old and moved to Dhaka around 1996 where he continues to reside with wife and [family];
·     his sister [Sister A], who resides in [District 1] and is married with [a family];
·     his [named sibling], who resides in [a named village] in [District 1] and is married with [a family];
·     his [sibling], who resides in [Village 2] and is married with [a family];
·     his [named relative], who resides in [District 1] and is married with [a family];
·     his [named sibling], who left Bangladesh with [their spouse] in or around 2004 for [Country 2] where [they now reside];
·     his [named sibling], who resides in [District 1] and is married with [a family]; and
·     his [named sister], who resides in [Village 3], [District 1] and is married with [a family].

The Tribunal now turns its consideration to the political activities and profiles of the various family members specifically raised in the applicant’s claims, specifically:
·     [Father A];
·     [Brother A];
·     [Relative G];
·     [Relative F];
·     [Relative B];
·     [Relative A];
·     [Mr C];
·     [Relative D]; and
·     [Relative C].
[Father A] - the applicant’s father who died in 2003
Beginning with the applicant’s immediate family, the applicant told the Tribunal that his father, [Father A], was born in [year] and died in 2003 at the age of [age]. He confirmed that his father was a BNP [Position 1] of a union parishad in [District 1]. The applicant was unable to articulate the name of this union parishad at hearing. In any case, the applicant told the Tribunal that his father had never been harmed in Bangladesh because ‘he helped people and didn’t do anything wrong for people’. He went on to explain that his father would organise BNP rallies, meetings and programs and benefited the local community through his involvement in road construction and ‘local problem solving’.
The Tribunal notes that [Village 2] is located in the [District 1] [Upazila 1], [District 1], Khulna Division of Bangladesh. According to a Bangladeshi Census Bureau Report published in [the] years before the death of the applicant’s father, the [Upazila 1] was divided into [District 1] and [number] union parishads: [named]. The union parishads are further subdivided into [number] mauzas and [villages].[24] The Tribunal notes that union parishads are the smallest rural administrative and local government units in Bangladesh, preceded in ascending order by upazilas, districts, divisions and finally the national government.[25]
[24] [Source deleted.]
[25] See Wikipedia entry for Union Councils – Bangladesh, accessible at
At hearing, the applicant insisted that his father had been elected three times to the position of union parishad [Position 1] for three consecutive terms and therefore held this position for a total period of 12 consecutive years. The Tribunal accepts this evidence but observes that it is inconsistent with earlier accounts relating to the duration of [Father A’s] political term which were variably indicated to be 15 years or 35 years. While the Tribunal accepts that the applicant’s father was a [Position 1] of a union parishad in the [Upazila 1], it is concerned by the applicant’s changing evidence in relation to the duration of his father’s [Position 1 role] which indicates a tendency by the applicant to exaggerate and overstate his claims. The Tribunal has difficulty accepting the applicant’s changing evidence can be attributed to someone who ‘wrote it wrong’ in a previous statement, as was contended at hearing. The applicant’s statements have been prepared with the assistance of professional migration advisors and he gave oral evidence to a delegate at his first SHEV application interview on 22 March 2018 where he stated that the period of [his father being in Position 1] was 35 years and thereby similarly ‘wrong’. While the Tribunal is prepared to accept some margin of error due to poor interpretation and the stress involved for the applicant throughout the refugee status determination process, this error is significant and has been consistently made on at least three separate occasions.
[Brother A] – the applicant’s brother in [Country 2]
As stated above, the Tribunal accepts that the applicant’s brother [Brother A] left Bangladesh [in] 2011 for [Country 2] where he now resides and is married with [a family]. Based upon the applicant’s testimony at hearing, the Tribunal accepts that the applicant and [Brother A] were more involved in politics in his local area of [District 1] than any of their other siblings. Asked to articulate the nature and degree of [Brother A’s] political involvement, the applicant was unable to provide much detail beyond a general indication that his brother would support the BNP, in line with the family’s tradition, and was known in his local area of [District 1] as an organiser of meetings who experienced problems when the Awami League assumed power which eventually required him to leave Bangladesh for [Country 2] in 2011.
The applicant explained that [Brother A] has twice visited their family in [District 1] since moving to [Country 2], during festival periods such as Ramadan, but only stays in [District 1] for short periods of ten to twelve days in order to avoid being harmed. The applicant gave no detailed explanation as to why [Brother A] would be harmed in [Village 2] during his visits, apart from some oblique reference to [Mr D] who was a long time rival from high school days who was now influential in the local area. The applicant also gave no detail in relation to the measures [Brother A] took when visiting his family in Bangaldesh in order to avoid harm. Nevertheless, the Tribunal notes that [Brother A] has had the ability to safely visit his family in [District 1] at various points since leaving Bangladesh [in] 2011 and there is no evidence before the Tribunal indicating any specific difficulties faced by him and his family during such visits or indeed in the enabling of such visits.
On the basis of the above, the Tribunal is prepared to accept that [Brother A] had a profile as a BNP supporter in his local area of [District 1] when he lived there but this profile has significantly diminished since he moved to [Country 2] in 2011.
[Relative G] - in [District 1]
Turning now to the applicant’s extended family, the Tribunal accepts that the [applicant is related] to [Relative G] who is a BNP Secretary of the [District 1]. Notably, the applicant did not present any claims or evidence relating to [Relative G] until after he made his second SHEV application and during his interview with the delegate on 19 August 2021. The applicant also did not make any reference to [Relative G’s] political activities and profile during the hearing. Nevertheless, despite having not been articulated by the applicant at hearing, the Tribunal notes the following evidence made by [Relative G’s] son, [Relative I], in his statement of 21 September 2023 which was provided to the Tribunal after the hearing:
My father is currently [age] years old and is poor health and physically sick due to serious heart problems. The authorities have brought four political cases that are completely false against him even as a sick, old man. For example they are saying that he did something 30 km away and he is too sick to do what they say and was not even there. Like all the false cases they are just lies. Our family has also had property illegally taken and threats made against us.
The Tribunal is unwilling to accept this evidence given its belated presentation after the hearing when concerns were raised about the applicant’s political profile and the lack of documentation to support these claims. The Tribunal also observes that there is no evidence before it relating the nature and degree of contact the applicant has had with [Relative G] either during his time in Bangladesh or Australia. While the Tribunal is prepared to accept the applicant is related to [Relative G], the available evidence does not support a finding that the applicant was in any way involved in [Relative G’s] political activities or would be targeted for reason of his relationship with [Relative G] or [Relative G’s] son. Instead, the evidence from [Relative G’s] son specifically about the applicant merely confirms that when the applicant was young he was given responsibilities and duties by older family members to help ‘political movements and gathering for them’.
[Relative F] - the applicant’s great grandfather’s grandson in Dhaka
Taking into account the partial family tree provided and [Relative F’s] evidence at hearing described below, the Tribunal accepts that [Relative F] is the applicant’s great grandfather’s grandson. The Tribunal accepts that [Relative F] worked for [Relative A] between [specified years] in secretariat roles when [Relative A] was [a Position 2]. The Tribunal also accepts that [Relative F’s] father was the BNP President of the [District 1]. The Tribunal also accepts that [Relative F] has held various leadership positions within the BNP, including BNP [Position 6] of the [District 1] in and around May 2018.
At hearing, [Relative F] gave evidence that he currently lives in Dhaka and is [age] years old. He confirmed that the applicant is the great grandson of his maternal grandfather [named]. After some initial confusion, [Relative F] recalled first meeting the applicant as a boy of five years at one of the [family’s] homes in [District 1]. Asked to articulate any activities the applicant performed which got him into trouble with the Awami League, [Relative F] simply replied that [Village 2] was in an area of Bangladesh which ‘is the main BNP practice’. The Tribunal understood this to mean that the BNP were popular in [Village 2] and the surrounding area of [District 1]. Asked to articulate any trouble the applicant had experienced because of his association with the BNP, either directly or thorough his family members, [Relative F] told the Tribunal that the Awami League had brought, and continues to bring, false criminal cases ‘against those people standing in the front line’. The Tribunal accepts this evidence but observes that it is only general in nature and lends little, if any, corroborative weight to a majority of the applicant’s claimed instances of harm. Moreover, the vague and general nature of [Relative F’s] oral evidence indicates that he did not have a close relationship with the applicant that stemmed from joint political engagement.
[Relative B] – the applicant’s great-great grandfather’s grandson in [District 1]
The Tribunal observes various references having been made to [Relative B] in the material before it where he has been described as the applicant’s ‘[specified relative]’. According to [Relative B’s] identification card, he was born on [date]. This makes him [age] years old.
It is clear from the partial family tree that [Relative B] is not the sibling of either of the applicant’s parents. Based upon the partial family tree, the Tribunal finds that [Relative B] is the applicant’s great-great grandfather’s grandson who played an avuncular role at points during the applicant’s life when the applicant was living in [Village 2].
At hearing, the applicant explained that [Relative B] was a [specified relative] of [Relative A]. He told the Tribunal at hearing that [Relative B] was alive in [District 1] but was now very old and that ‘he cannot even talk properly’. He also told the Tribunal that [Relative B] had been the BNP [Position 1] of [District 1] for 15 years between [specified years] and that the only harm [Relative B] experienced was when he was implicated in ‘one or two minor’ false criminal cases with the applicant in 2005. The Tribunal accepts this evidence as it is generally consistent with the applicant’s oral evidence at his interview with the delegate on 19 August 2021 as part of his second SHEV application.
[Relative A] – [who died in 2013] (the [Leader 1])
The Tribunal accepts that the [Leader 1] was a significant BNP figure in Bangladeshi politics, having served as a [Position 2] at various points between [specified years]. The Tribunal observes various references having been made to the [Leader 1] in the material before it where he has also been described as the applicant’s ‘[specified relative]’.
At hearing, the applicant stated that the [Leader 1] had never been harmed by the Awami League. He then confirmed that the [Leader 1] had died in 2013 from a sickness but was unable to detail that he died from a lung infection. He was also unable to articulate the name of the [Leader 1’s] wife, which is understandable given his evidence that he only met her once when he was about nine years old. He was also unable to articulate the names of the [Leader 1’s] [children], despite having told the Tribunal that he met them when he was about 15 years old. At one point during the hearing, he stated that he last saw the [Leader 1] when he was about [age] years old, when he observed him speaking with [Brother A] about the caretaker government in Bangladesh and adverse media publicity about the [Leader 1]. He later told the Tribunal that he last saw the [Leader 1] when he was [a few years older]. He then told the Tribunal that he had met the [Leader 1] on three occasions and after further questioning stated that he had met the [Leader 1] on five or six occasions. He also could not provide any detail in relation to the [Leader 1’s] [specified relative], Bangladeshi politician [Ms A][26] who had been elected as [a representative] and held office between [specified years]. He said that he had met her several times at his home in [Village 2] and knew that she did not live in [District 1] but had a ‘good position’. After some further discussion, the applicant conceded that [Brother A’s] relationship with the [Leader 1] was ‘closer’.
[26] [Source deleted.]
It is clear from the partial family tree that the [Leader 1] is not the [specified relative] of either of the applicant’s parents. Based upon the partial family tree and the applicant’s own evidence at hearing which displayed his limited knowledge of the [Leader 1’s] family circumstances, the Tribunal finds that the [Leader 1] is the applicant’s [specified relative] who played a minimal role in the applicant’s life other than being an avuncular presence for a short period during the applicant’s youth.
[Mr C] – the applicant’s [specified relative] who died in 2019
Based upon the material before it, the Tribunal accepts that [Mr C’s] [specified relative] who died at the age of [age] in 2019. The Tribunal accepts this evidence noting the significant age gap between the applicant and [Mr C] despite them being of the same family generation. The Tribunal also accepts that [Mr C] was a senior BNP leader who, according to media reports provided by the applicant, had been arrested at a meeting in the [District 2] in Bangaldesh and detained with [number] other BNP leaders and activists. He was later released but died due to ill-health with his death having been reported the Bangladeshi media on [date].
At hearing, the Tribunal explored the applicant’s knowledge of [Mr C’s] arrest and death. While the applicant vaguely recalled that the arrest had occurred in [District 2] in [year], he could not provide any detail of the nature of the BNP meeting where these men had been arrested or how long [Mr C] had been detained. Asked the reason for his arrest, the applicant simply stated: ‘Because the Awami League was in power’. The applicant also mistakenly told the Tribunal that [Mr C] had died in [a later year] instead of [that year].
Having considered the available material and the applicant’s undetailed and somewhat generic oral evidence at hearing, the Tribunal finds that while [Mr C] is the applicant’s [specified relative], there is little persuasive evidence to suggest that the applicant had a close relationship with [Mr C] or that [Mr C] had ever played a role in the applicant’s life apart from being a distant figure.
[Relative D] – the applicant’s [specified relative] in Dhaka (and her husband [Relative C] who disappeared in April 2012)

100. Based upon the material before it, the Tribunal accepts that [Relative D] is the applicant’s [Relative G’s] [specified relative] who resides in Dhaka. The Tribunal also accepts that [Relative C] is her husband who disappeared in April 2012. However, there is little persuasive material indicating any degree of familiarity between the applicant and [Relative D], or her husband, at any point during the applicant’s life. For example, while the applicant has produced photographs of [Relative D] with a number of his family members, there are none with the applicant. Furthermore, at hearing, the applicant demonstrated no knowledge of the fact that following her husband’s disappearance in April 2012 [a significant event occurred].[27] This demonstrates that the applicant has maintained little interest in her life following his departure from Bangladesh in 2012. Finally, at hearing, the applicant stated that he first found out about [Relative C’s] disappearance from newspaper reports instead of through family connections. This suggests that the applicant was not closely connected with [Relative C], despite living in Dhaka at the time of his disappearance. The Tribunal’s view in this regard is underscored by the distinct absence of evidence to demonstrate the applicant maintaining any form of relationship with [Relative D] or [Relative C] during the time they all lived in Dhaka.
[27] [Source deleted.]
101. Having considered the available material, the Tribunal finds that while the applicant is distantly related to [Relative D] and her husband, he did not enjoy a personal relationship with these two political figures and would not be regarded as a closely connected relative of either of them.
Personal involvement with the BNP
Membership
102. The Tribunal notes the evolving nature of the applicant’s claim that he was a member of the BNP in Bangladesh. At his entry interview, the applicant denied being a member of any political party. At his identity interview, the applicant made no mention of his party membership. The Tribunal is prepared to accept that the applicant may have misunderstood the questions put to him during these two initial interviews due to difficulties with the interpreter.
103. However, in his statement of 15 September 2016, the applicant made no mention of his party membership but did state that he ‘did not have a formal position with the party’, a matter which indicates that he may have been precluded from office on account of not being a party member. [Mr C's] letter of support letter of 1 January 2015 also makes no mention of the applicant having ever been a party member. At his interview with the delegate on 22 March 2018, the applicant denied being a party member. However, in a subsequent statement the applicant raised the claim that he had been a member between 2005 and 2012 but did not proffer any corroborative documentary evidence to support that claim, despite having been requested by the delegate to do so.
104. At hearing, the applicant stated that he had never been a member of the BNP either in Bangladesh or Australia. He explained that his brothers [Brother B] and [Brother A] had been members and had encouraged him to join the party when they were in [Village 2] but he thought it was not for him.
105. Having considered the totality of the applicant’s evidence on this issue, the Tribunal finds that the applicant was not a member of the BNP in Bangladesh or Australia.
Political and other support activities in Bangladesh
106. In terms of his political activities in support of the BNP in Bangladesh, the applicant told the Tribunal that he supported [Brother A] and his father in their political pursuits by encouraging locals in [Village 2] to attend various BNP meetings and gatherings, particularly before he moved to Dhaka in 2005. He also told the Tribunal that he attended a large BNP rally in Dhaka when he lived there in 2010, explaining that attendees were rallying ‘against the Awami League government, the caretaker government and the unfair elections’. He then told the Tribunal that after [Relative C] was ‘kidnapped’ in April 2012, he attended a meeting in Dhaka. Asked whether he was required to perform any actions after that meeting in Dhaka, the applicant stated that he did not and that this was because ‘police started arresting people all over Bangladesh’.
107. In terms of his other activities in support of the BNP in Bangladesh, the applicant told the Tribunal that in [year] when he was [age] years old, he and [Brother A] had fought with [Mr E], an influential lawyer and journalist who had a large Awami League following, and [Mr E’s] son [Mr D] who went to high school with [Brother A]. [Mr E] had written a newspaper article containing ‘objectionable comments’ about the [Leader 1] which had upset [Brother A] and the applicant. Incensed by this media, the applicant claimed that he had punched [Mr E] in the face. According to the applicant, [Mr E] was [age] years old at the time of this altercation and was seriously injured such that he required admission to [a named] Hospital in Dhaka for treatment. The Tribunal has difficulty accepting the applicant’s account of this incident and that it indeed occurred as claimed. Firstly, this claim was first raised at hearing and its significantly belated presentation was not explained. Secondly, the Tribunal drew to the applicant’s attention that his evidence appeared to be inconsistent with his oral evidence at interview with the delegate on 19 August 2021 where he made no mention of [Mr E] but stated on two occasions that he had punched a female journalist in the face for writing ‘bad things’ about the [Leader 1] in a local newspaper. The applicant initially denied having made such a statement and then conceded it may have been a mistake. Given the belated and changing nature of the applicant’s evidence in relation to this claim, the Tribunal does not accept it. The Tribunal is of the view that had such a significant altercation with [Mr E] occurred, the applicant would have raised it before the hearing, either with his advisers or as part of his previous SHEV applications.

who does not hold an official position, even if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members
of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is
difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that
charges, particularly related to violence, are genuine – protests in Bangladesh are often very
violent. It is difficult to apply an overall assessment to various circumstances, particularly if a
charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost
support (it has less to of fer members), and thus influence and capacity, to hold mass
demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time but notes that this could change in the lead
up to the national elections (due January 2024). DFAT assesses that allegations of violence
against BNP figures are credible. Reports of violence by BNP activists are also credible. High
profile figures are more likely to be targeted by politically motivated charges; however, DFAT
assesses that any BNP member who actively opposes the government, and especially if they
are involved in violent protests, can be targeted through criminal charges.[29]
[29] Ibid.

131. Regarding political violence generally, other sources considered by the Tribunal indicate political conflict between the Awami League and its opponents peaked around the January 2014 elections – the most violent in Bangladesh’s history – and subsequent opposition-led nationwide hartals (strikes).[30] The evidence indicates high levels of political violence have continued throughout subsequent years, though shifted from inter-party to predominantly intra-Awami League clashes and that intra-party violence has overtaken inter-party violence as the main form of politically motivated violence.[31]
[30] ‘Political Conflict, Extremism and Criminal Justice in Bangladesh’, International Crisis Group, 11
April 2016, p.3, CIS38A8012646
[31] For example, 'Annual Human Rights Report on Bangladesh 2018', Odhikar, 8 August 2019, p.9,
132. The Tribunal accepts that country information indicates that ruling parties, both the Awami League and the BNP, and their affiliated organisations control state machinery and exploit it to supress their opposition while in office,[32] and that the police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[33]
[32] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade, 22
August 2019, para.3.66, p.25
[33] ‘BTI 2022 Country Report: Bangladesh', Bertelsmann Stiftung, 23 February 2022, p.3; 'Bangladesh:
133. The Tribunal has also considered country information that suggests increasing political confrontation and clashes between the Awami League and the BNP in the lead-up to and following the national elections recently held on 7 January 2024. There are reports from BNP sources suggesting substantial number of party supporters were being charged in trumped up or fake charges.[34] It notes that Human Rights Watch has stated that mass arrests and police raids of opposition party members’ homes raise serious concerns about violence and intimidation in the lead-up to and for a period following these elections.[35]
[34] 'Bangladesh opposition says 4,000 charged in gov’t crackdown', Al Jazeera, 11 October 2022
[35] 'Bangladesh: Crackdown on Political Opposition', Human Rights Watch (HRW), 10 October 2022; ‘Instability looms over post-election Bangladesh’ The Diplomat, 26 January 2024
134. The Tribunal has considered the above country information in the context of the findings above relating to the applicant’s background and profile and activity with regard to his BNP affiliation. Although the Tribunal accepts the applicant was traditionally affiliated with BNP through his family, and had some adverse experiences in Bangaldesh in 2005 and 2009 largely on account of his BNP affiliation through active political family members in [District 1] at that time, he has not discernibly participated in activities in support of the party for well over a decade. Notably, the Tribunal has found that these particular family members are no longer politically active and the applicant now has limited familial and other connections with the BNP in Bangladesh. Furthermore, the applicant demonstrated little deep knowledge or interest in the party in his oral evidence, despite being questioned about this topic at all of the interviews and the recent hearing. He has not maintained any discernible interest or engagement with the BNP since leaving Bangladesh, despite having had some degree familial connection, albeit diminishing, with BNP leaders, members and supporters.
135. On the evidence before it, the Tribunal finds that the applicant will not participate upon return on behalf of the BNP and given this profile, notwithstanding the above country information, the Tribunal is not satisfied that there is a real chance he will face serious harm for reason of his political opinion, actual or imputed, upon return to Bangladesh in the reasonably foreseeable future.
Risk of future harm as a failed asylum seeker from a western country
136. At hearing, the applicant has not claimed to fear return to Bangladesh for any other reason apart from his BNP affiliation and political opinion, which the Tribunal has rejected. Notwithstanding this, the Tribunal notes that the applicant has been outside Bangladesh since November 2012, a period over a decade and would be returning there now as a person who has spent a substantial time overseas in a western country. It accepts on his evidence at hearing that his brother [Brother C] helped him obtain a passport in Bangladesh which was issued to the applicant at the [Office 1] passport office in Dhaka in [2012] and that this passport was genuine. It accepts that he does not currently hold a passport.
137. DFAT’s most recent Country Information Report on Bangladesh provides the following information relevant to Treatment of Returnees and Conditions for Returnees:
5.21 The Overseas Employment and Migrants Act (OEMA) 2013 makes it an offence to
depart from Bangladesh other than in accordance with the procedures laid down in the Act.
Bangladeshis require a valid passport and visas (depending on the destination country) to
depart Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect
Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed
asylum applications, for example) and even those provisions are rarely enforced. It is unlikely
that any person returning after a failed asylum attempt in Australia would be prosecuted under
the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this
happening.
5.24 It is possible that a person who is involuntarily returned by a foreign government after
travelling on a fraudulent document will be detained and questioned by police once back in
Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a
substantial pattern of holders of fraudulent passports being detained or questioned in this
way.
5.25 Bangladesh is a country with a very large diaspora and a strong outward migration
culture, and tens of thousands of Bangladeshis exit and enter the country for employment
each year. The government does not have the capacity or interest to check or monitor each of
these people. If they have a particular political profile, their entry into Bangladesh could be
noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority
of returning Bangladeshis and DFAT is not aware of any instances of returnees being
detained at the country’s borders for overseas political activities.
5.26 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face
adverse attention regardless of whether they have returned voluntarily or involuntarily.
Authorities take an interest in high-profile individuals, but the vast majority of returning
Bangladeshis would not attract such interest.[36]
[36] DFAT Country Information Report: Bangladesh, Department of Foreign Affairs and Trade (DFAT)
30 November 2022, p. 36

138. The Tribunal notes that DFAT’s two earlier reports, in February 2018 and August 2019, similarly concluded that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily and that authorities may take an interest in high profile individuals, but this is unlikely for a returnee without such a profile.[37]
[37] DFAT Country Information Report: Bangladesh’, Department of Foreign Affairs and Trade (DFAT),
139. The Tribunal accepts that the applicant, if returned to Bangladesh, would be returning after being absent for a substantial period of over 11 years. Returning from Australia following a prolonged stay here, the Tribunal accepts the authorities may assume he had sought asylum here and failed. The applicant departed Bangladesh on his own document, therefore he does not appear to have breached any laws by his manner of departure if he was questioned about this upon return. Above, the Tribunal found the applicant has no ongoing or discernible BNP profile, and no outstanding cases or charges against him or other profile of interest to the authorities, therefore the Tribunal is satisfied he does not face a real chance of serious harm as a returnee following a prolonged absence, or failed asylum seeker from a western country.
Risk of harm as a result of corruption in Bangladesh where the lives of the younger generation are under threat
140. The applicant did not ventilate this claim at hearing despite having had ample opportunity to do so. Notwithstanding this, the claim was raised as part of a previous SHEV application and the Tribunal is of the view that it merits brief consideration.
141. The applicant raised a general concern about the police and judiciary being corrupt in Bangladesh. However, he did not elaborate further beyond that general proposition and gave no evidence to indicate that he had been harmed by the police or judiciary in Bangladesh in the past. Furthermore, given the above findings, there is no real chance of the applicant facing serious harm as a result of corruption in Bangladesh now or in the reasonably foreseeable future.
142. The applicant raised another general concern that the lives of the younger generation in Bangladesh are under threat but proffered no specific evidence or country information to support that broad and somewhat vague contention. In the absence of further detail and country information to support this claim, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for this reason in Bangladesh now or in the reasonably foreseeable future.
Risk of harm because the applicant will be unable to subsist in Bangladesh due to unemployment or for reasons of financial difficulties
143. Again, the applicant did not ventilate this claim at hearing despite having had ample opportunity to do so. Notwithstanding this, the claim was raised as part of a previous SHEV application and the Tribunal is of the view that it is a residual claim that arises on the material and merits consideration.
144. Accepting that the applicant has been outside Bangladesh now for over 11 years, the Tribunal acknowledges that he may face challenges and hardships reintegrating with his family and into society in Bangladesh and may initially find it difficult to get work. That said, on the applicant’s own evidence, he has access to income from his agricultural lands in [Village 2] and has expressed a preference to live in that area of [District 1] where he can be close to his family members who have supported him in the past. On this basis, the Tribunal finds that this initial period of financial hardship or unemployment does not come within the meaning of ‘serious harm’ for the purposes of this criterion. Therefore, while sympathetic to the applicant’s situation regarding his economic prospects and future in Bangladesh, it is satisfied that a real chance of serious harm does not exist on this basis.
Conclusion
145. On the basis of the findings above, and considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion?
146. 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 has considered whether 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 s36(2A) of the Act.
147. The Tribunal refers to the findings of fact above, the applicant’s brief comments on his future conduct, and the Tribunal’s views on any associated risk. The Tribunal is not satisfied that there are substantial grounds for believing that the applicant – who now has a limited affiliation and degree of association with the BNP through his family connections and history, and is not politically active or influential – will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
148. Having considered the applicant’s claims individually and on a cumulative basis and 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, there is a real risk he will suffer significant harm.
149. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Does the applicant satisfy s 36(2) of the Act?
150. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
151. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Papadopoulos
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.
…

2019082714401620190827144016; 'Annual Human Rights Report 2019 Bangladesh', Odhikar, 8
February 2020, pp.70-71, 20200218104232; 'Annual Human Rights Report 2020 BANGLADESH',
Odhikar, 25 January 2021, pp.43-44, 76-77, 20210209153355; 'Country Policy and Information Note
Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9,

20200928084218

Stop Reprisals Against Victims, Activists', Human Rights Watch (HRW), 7 April 2022; 'Cycle of Fear
Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh', World

Organisation Against Torture (OMCT) and Odhikar, 25 July 2019, p.29

2 February 2018, p. 36; DFAT Country Information Report: Bangladesh, Department of Foreign

Affairs and Trade (DFAT), 22 August 2019, p. 50

[2024] AATA 2463

28 March 2024

Key Legal Topics

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Administrative Law

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Natural Justice

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