1907937 (Refugee)

1907937 (Refugee) [2024] AATA 3023 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jia (Jack) Li
CASE NUMBER:  1907937
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:17 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 January 2024 at 4:18pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – follower of Bangladesh Nationalist Party (BNP) – property dispute with family members – regular beatings by Awami League members – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 13 March 2019 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 19 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 1 December to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
According to information contained in his Protection visa application, the applicant is a [age]-year-old single man from Pirojpur, Barisal, Bangladesh. His parents and [sisters] continue to reside in Bangladesh. He lived in [Country 1] from September 2011 to June 2017, prior to coming to Australia. He resided in [Country 1] holding a temporary work visa. He worked as a [Occupation 1]. He identifies with the Bengali ethnicity and with the Islamic faith.
APPLICANT’S CLAIMS FOR PROTECTION
In a statement of claims to the Department dated 21 July 2017, the applicant claims that his family has a strong political background in Bangladesh being followers of the Bangladesh Nationalist Party (BNP). His father and uncles are active BNP followers and take part in different social, political meetings and gatherings.
In 2009 he formally joined the BNP [Upazila 1] Branch as a member of Bangladesh Jatiotabadi Chatra Dal (Chatra Dal). His active involvement made him a key person in his local area and day by day he became very popular. Due to his activity many young local people joined the party. This made the Awami League (AL) uneasy and they commenced verbally threatening and abusing behaviour.
On one occasion on [date] October 2010 when he was returning from school 5 AL cadres (names listed) stopped him and started beating him with bamboo and an iron rod. The beating lasted approximately 20 minutes and he feinted. When he woke up he was surrounded by his party people. His party people carried him to the nearest medical centre. Afterwards he became depressed mentally and physically.
On [date] February 2011 his local Jatiotabadi Chatra Dal organised a meeting of the party. When he was returning home from that meeting AL cadres kidnapped him and held him in a van for three hours and tortured him severely. He still has marks on his body. At midnight they threw him on the road and village people rescued him after finding him unconscious. On the same day local village people admitted him to the local hospital, [Hospital 1]. He remained in hospital for two nights.
After this incident his father reported the incident to the police. The police didn’t take the report and did nothing. The situation worsened due to the complaint made to the police. He began to be continuously threatened.
In April 2011 a family problem arose between his father and his four uncles. His uncles tried to take over all their properties and started creating problems within the family. As the only son in his family he is the successor of his father’s properties. On one occasion his uncle beat him with bamboo sticks. While his father and uncles were arguing about the properties he tried to manage both parties but he was attacked and beaten with a bamboo stick. His uncles poisoned their ponds and killed all their poultry.
After these issues his family decided to send him abroad. [In] September 2011 his father sent him to [Country 1].
For the first time he returned to Bangladesh [in] March 2015 because his mother was sick. He stayed in a different village with a friend. His parents joined him and stayed at the same friend’s place. He stayed there for 2 months. Then AL local leaders found him and tried to kidnap him according to what he heard from his party people. They threatened to kill him. On the same night he escaped with the help of a few friends and returned to [Country 1].
[In] September 2016 he returned back to Bangladesh even though he was scared. On [date] September 2016 he attended a party meeting. When returning home after the meeting the same group of people beat him badly and threatened to kill him. His parents decided to send him back to [Country 1] but he could not stay there permanently.
His employer sent him to [Country 2] and [Country 3] for work purposes. [In] October 2015 he tried to settle in [Country 2] and [in] January 2016 he tried to settle in [Country 3]. However those countries have the same rules as [Country 1].
Luckily his [Country 1] employer sent him to Australia for work purposes for 42 days and he was determined to stay in Australia permanently. He is a very skilled specialised [Occupation 1] and can contribute to the Australian economy.
ADDITIONAL EVIDENCE PROVIDED TO THE DEPARTMENT
On 25 February 2019 the applicant’s representative provided a submission to the Department including a further statement from the applicant (undated). The applicant states that his father is a businessman and has a lot of farmlands and a [Industry 1] business. He repeats his testimony that his father and uncles are followers and activists for the BNP. He states that his uncle, [Mr A], is a prominent local leader of the BNP in [Upazila 1]. While most of his family members are BNP supporters, one of his uncles, [Mr B], and his two sons are AL activists.
The applicant stated that his interest in the BNP goes back to when he was a school kid. In 2009 he joined the Jatiotabadi Chatra Dal of the BNP. He was actively involved in organising political events and rallies for Chatra Dal and the BNP. He motivated students and youngsters to join Chatra Dal. He built a closer relationship with student leaders and the BNP [Upazila 1] and they made him a key person in the local area in a short span of time.
On [date] October 2010, he was attacked by five AL supporters on his way back home from school. He was beaten and warned him not to return to politics. He was hospitalised. When he returned home from hospital he and his family started receiving threats over the phone to leave politics and the area or be killed. They could not get protection from the authorities as the AL had influence over the police.
Despite the attack he did not stop his political activity. [In] February 2011, he and other local BNP members and Chatra Dal members organised a peaceful rally at the market place of [City 1]. After sunset when he was returning home he was attacked by AL cadres in a white van; they grabbed him and tied his eyes. After a couple of hours they kicked him out of the van and started torturing him severely. They hit him on his left leg with something solid. He was left unconscious on the road at midnight. He was taken to [Hospital 1] by local villagers and hospitalised for a couple of days.
After this incident his father reported the attack to the police but initially they refused to take the case. After several request his father was able to make a General Diary ([dated in] January 2011). Even so no action was taken by the police. It took a few months for him to recover and return to his political activities.
He attended another rally [in] August 2011 at the [Market] which was followed by a procession. The AL had called for a rally at the same place and time and AL people violently attacked them. The AL members threw cocktails and attacked them with bladed weapons and some of them were carrying pistols. Tens of BNP activists were wounded including him as he was in the front row of the rally. He was seriously beaten with bamboo sticks and sustained an injury requiring stitches in a medical surgery.
A charge sheet was prepared on 13 August 2011 against [number] BNP leaders and activists including himself ([number] in the list at the [City 1] Police Station). He fled from his residence and took shelter in one of his relatives houses in Dhaka as police and AL cadres were frequently looking for him and threatening to kill him.
[In] September 2011, he agreed to go to [Country 1] at the insistence of his father, to escape the harassment and attacks of the AL.
In 2013, his uncle who is an AL supporter became interested in the applicant’s father’s land, crops and ponds. His family faced severe pressure and their ponds were poisoned and poultry killed. His father raised the problem with local government and police but no action was taken.
On [date] January 2015 his father argued with his brother and two sons. He was beaten on the forehead with a bamboo stick and became unconscious. He was taken to a nearby medical centre by other people. His father reported the incident [in] March 2015 to the police.
He travelled to Bangladesh from [Country 1] to visit his ill mother [in] March 2015. He was told his situation was still risky and that the AL and his uncle’s family were interested in catching and hurting him. Therefore he did not stay at his own residence. Instead he stayed in a different village with some relatives. He met his mother at the hospital after taking a lot of precautions. He could not stay there for the two months as he was informed that AL local leaders saw him and were planning to kidnap him. He returned to [Country 1].
[In] September 2016, he returned to Bangladesh even though he was scared. He attended a BNP meeting on 20 September 2016. When returning home he was again attacked by four people, three ex-Chatro League cadres and his cousin. They demanded money and told him to arrange a further 10 lakh taka which they would pick up the following day. Two of men punched him in the face and he started bleeding. He returned to [Country 1] with a view to settling there but overseas workers are not permitted to remain permanently in [Country 1] and there are no options to apply for humanitarian visas. Luckily his employer sent him to Australia where he was able to apply for a Protection visa.
The applicant also provided the following evidence in support of his case.
a.Copy of English translation of his Bangladeshi birth certificate.
b.Copy of English translation of primary schooling certificate.
c.On 26 February 2019, the applicant’s representative lodged the following material in support of the applicant’s case:
i.Copy of English translation of police report dated [in] March 2015 outlining a complaint from a [Mr C] against [Mr D] and [Mr E] in respect of threats he received on [date] March 2015.
ii.Copy of English translation of “application for permission of the criminal investigation” dated [March] 2015. The filing lists the same two alleged perpetrators as the police report above dated [March] 2015.
iii.Letter from [Mr F], Chairman of [Union Parishad Office], [City 1] dated 27 November 2018 stating that the applicant was a student party member and vouching for the good character of the applicant.
iv.Copy of English translation of police complaint (General Diary) dated [in] January 2011 from the applicant in respect of three Awami League members who have threatened the applicant.
v.Copy of English translation of police report dated [in] August 2011 listing the applicant as party in a street incident.
EVIDENCE PROVIDED TO THE TRIBUNAL
On 29 November 2023 the applicant’s representative made a submission to the Tribunal which includes new evidence and a further statement from the applicant. Also attached are various articles about the current situation for BNP members and supporters in Bangladesh.
The applicant’s statement dated 28 November 2023 states the following:
-He is still at risk of harm from the AL and its student wing, Chatra League and from his uncle ([Mr B]) and two sons ([Mr D] and [Mr E]).
-He claims his uncle and cousins continue to threaten his father that they will kill him.
-He claims he previously failed to provide the correct date the land problems commenced due to his inability to recall details clearly. He confirmed his uncle and cousins started to possess his father’s property illegally since April 2011.
-He claims that since he came to Australia the AL have continued to search for him in Bangladesh and have threatened his father to tell them where he is. When these AL members come to his father’s home they carry iron rods, bamboo sticks and even bladed weapons. Despite this he has told them nothing. His father told him they continue watching his house and search for a trace of him at the local transport station. If he goes back to Bangladesh he will be found by local AL members and killed.
-He claims his sister was attacked by [Mr B] over the property dispute on 28 January 2017. He was in [Country 1] at the time and could do nothing.
-He claims that on [date] September 2019 his father was seriously injured by [Mr B]. On that day Rashid and his accessories trespassed his father’s land with heavy weapons. His father tried to stop them but they ignored him and hit him. His father was stabbed in the neck and beat on the head with an iron rod. [Mr G] and other local people heard his father’s wailing and they came and took him to [Hospital 1]. After this his two cousins kept ringing his father’s house and threatening him to give up his property and land. They told his father that if he returned to Bangladesh they would do the same thing to him and kill him.
-He claims that previously his father sought help from the police (see below regarding police report on [date] September 2019). [Mr B] and his sons are AL members and the local police fear their power and did not take any actions against them. He is worried his family members will be killed by AL members.
-He claims he follows the BNP and Chatra Dal’s Facebook to keep abreast of their latest political activities in Bangladesh. He also attends BNP and Chatra Dal meetings in [Suburb 1, Australia] regularly. He helps BNP members to organise their weekly meetings including finding a meeting place, publicising the meet and hosting the meeting.
-He states that in Bangladesh government departments and especially the police are puppets of the AL and Chatra League. The police fear becoming the enemy of the AL and Chatra League.
-He states that the Secretary-General of the BNP was detained by police. His party is under threat and cannot provide any protection to him. It is impossible to relocate in Bangladesh because AL and Chatra League members are well connected and can locate him in whichever city he lives.
-He states that the national election will be held on 7 January 2024 and the AL are suppressing opponents even more severely now to secure their ruling position. Most leaders of BNP are arrested and sent to jail and a lot of members have been tortured, kidnapped and killed by the AL. On 28 October 2023 violence broke out between the BNP and AL members in Dhaka leading to the death and injury of many BNP activists. The AL claimed that BNP activists were the perpetrators and directed the police to file murder charges against them.
-He claims that due to his position in Chatra Dal the AL will tighten their search for him in an attempt to kill him.

An attachment labelled “new evidence” contains the following:
-Translated complaint by applicant’s father, in his capacity as local village police, at [City 1] Police Station against [Mr D] son of [Mr B] and [Mr E] for indiscriminately beating cattle of [name] (witness) on 24 March 2015; threatening to beat him and stabbing him with a sharp weapon at his house.
-A translated application for permission to investigate a crime in respect of the above incident sent to Senior Judicial Magistrate, [City 1].
-Translated letter/complaint to the Headmaster of [Secondary School 1] from [name] claiming she was stopped on her way to school on 28 January 2017 by [Mr B] and [Ms H] who told her she could not pass and hit her on her waist.
-Translated First Information Report dated [in] September 2019 made by [Mr G] (the applicant’s uncle) against four persons (including [Mr B]) for illegal trespassing, hitting and beating causing serious injury.
-A translated General Diary entry made by the applicant’s father on [date] September 2019 at [City 1] Police Station in connection with the FIR made by [Mr G] due to their being no witnesses to that event. The applicant’s father accuses [Mr B] and others of “showing threat on different occasion with beating, hitting and murder on [date]/9/2019 at 10.00pm…. the accused threatened differently to beat to the death with weapons and stick and will finish forever if anyone comes to give witness against them”.
-Translated deposition by [Mr G] against the same four persons indicating the applicant’s father was injured after being stabbed in the neck by [Mr B] during the incident of [date] September 2019 and beaten on his head with an iron rod.
-Translated charge sheet in respect of the complaint made by [Mr G] about the incident [in] September 2019.
-Translated injury certificate dated 15 September 2019 indicating the applicant’s father presented for treatment of a wound to his neck and injuries to his arms.
THE TRIBUNAL HEARING
The following is a summary of the applicant’s oral evidence taken at hearing.
He is a citizen of Bangladesh and has no right to enter or reside in another country. He was born in [City 1] in [year]. However, on his official documentation his birth year is noted as being [five years earlier]. He is currently [age] years old. He is single and has no children. His religion in Islam.
In 2011 he suffered a head injury and has experienced bouts of depression. He has not sought any medical treatment in Australia for depression. He has no records of any medical treatment obtained in Bangladesh for any reason.
He lived in [Country 1] from [September] 2011 to September 2017. He first went to [Country 1] when he was aged [age]. He obtained work through an agency as a [Occupation 1]. He travelled back to Bangladesh in these years twice – once in 2015 and once in 2016.
In Bangladesh he was educated to year 10.
His parents remain living in [City 1]. His [sisters] are all married and live with their husbands.
His father farms and sells agricultural products. He also owns some shops which he rents. Previously he had a [Industry 1] business but that ceased around 2015.
His father owns various parcels of land in his village. Their residence is situated on one parcel of land and the rest is used for agricultural purposes. His father has legal title to all the land.
He fears harm in Bangladesh for political reasons and arising from a property dispute within his family. He denounced the claim raised by his representative in a submission that he fears harm due to being perceived to be a wealthy returnee.
The applicant was asked to articulate his political beliefs and he stated he did not understand. The Tribunal explained its question and he then stated that the renowned leaders of the BNP are in jail. He stated that his family have always supported the BNP and in 2009 he joined the BNP’s Chatra Dal. When asked why he favours the BNP over the AL he said it is because he likes them. When asked to explain why he likes the BNP he said his grandfather and father supported the BNP and so he does. He said that his father and his paternal uncles are members the BNP but do not hold any positions in the party.
As ordinary members of the BNP his family members provide support by attending meetings and processions. He said they are oppressed because of their political involvement. When asked if his father or paternal uncles have ever been seriously harmed because of their political opinion he replied yes and stated they have been assaulted and even hospitalised. When asked who in particular was affected and when this occurred he said he couldn’t recall.
His father’s cousin, [Mr B] is involved with the AL. He has two sons who are also AL supporters. One of his sons, [Mr E], studied with a person [named] who is contesting the election for the AL. [Mr B] is the Chairman of the Ward. [Mr E] was a chairman of the AL Chatra League in the local area. He no longer holds this position but remains close with an AL MP as does [Mr B]’s second son.
Regarding his own political activity, he said he went to meetings with friends and cousins.
The applicant stated he was too young to vote in previous elections. In any event he said the BNP did not contest the elections in 2014 and 2018 and the same situation will prevail in the upcoming 2024 election.
In response to the Tribunal’s question about political allies of the BNP the applicant indicated that he was aware of the political alliances joined by the BNP in 2012, 2014 and 2018. He was unable to remember the names of any of those alliances.
The applicant was able to recall the name of the BNP’s acting Chairman, Tarique Rahman. When asked if there are other wings, such as the student wing, he said there is the main party body. When asked if anything significant happened in 2019 involving the Chatra Dal he said he did not know. When the Tribunal pointed out that the BNP dissolved the Chatra Dal’s existing committee in that year he said he could not remember. When asked if he was aware of the existence of a dispute between two factions of Chatra Dal at the time he said he couldn’t recall. He also could not recall whether there was anything significant about the filling of the posts of President and General Secretary of Chatra Dal in 2019, namely that the positions were for the first time in 27 years filled following an election.
The Tribunal put it to the applicant that he has demonstrated little knowledge of significant events involving the Chatra Dal of which he was a member. He replied that following his head injury he tends to forget things when he becomes tense.
The Tribunal asked the applicant if he is currently a member of the BNP and he replied “I’m here”. He added that his name still appears in his ward.
The applicant was asked about his political activities between 2009 when he joined Chatra Dal and 2011 when he left for [Country 1] at the age of [age]. He said he attended meetings, went to processions and functions. He said he was an ordinary member of Chatra Dal and all his political activities focused on the work of Chatra Dal.
The applicant was asked if he engaged with the BNP in [Country 1]. He said he was in touch with some BNP people but didn’t have an opportunity to become a member. He said that in [Country 1] people are very busy with their jobs and he had no opportunity to attend meetings.
The applicant was asked to provide information about the claimed past harm he suffered in Bangladesh. He said there was an occasion when there was supposed to be a BNP meeting but chaos followed and the AL didn’t allow them to conduct the meeting. He said that when returning home a group of AL people attacked him. They physically assaulted him on his head and he was severely injured. Some passers-by took him to the hospital where he stayed for about seven to eight days before returning home. When asked if anything else happened to him he said he couldn’t recall. For clarity sake the Tribunal asked him if the aforementioned incident was the only time he was attacked and he replied “yes”. He said that after this his father decided he should go to [Country 1]. The applicant confirmed the attack occurred in the afternoon around 4 or 4.30pm but he couldn’t recall the date or the month. He confirmed again that there was just the one attack and that thereafter he left for [Country 1].
The applicant was asked if he reported the matter to the police. He said that there was a general diary made at the police station by his father. He accompanied his father to the police station. He said that about five or six months after this he left for [Country 1].
When asked about his movements during those five or six months he said he lived in his village home and stayed in the house. When asked if he attended any political activities in those months he said he used to go occasionally but his father protected him.
The Tribunal noted that the general diary report provided as evidence which was made [in] January 2011 follows a claimed incident [in] October 2010 when he claimed he was beaten to the point of being hospitalised. The Tribunal noted that the police complaint only refers to him being threatened from time to time and doesn’t appear to be consistent with his oral evidence of what occurred. He replied that after he was assaulted he was threatened many times and that’s why it is reported. When the Tribunal pointed out that he had previously twice clarified that the only thing that occurred was the abovementioned attack he again stated that he couldn’t remember.
Noting his claimed age at the time, the Tribunal suggested that it is difficult to accept that the accused, being three men aged 45, 50 and 40, would attack a young boy so violently just because of the relatively low level of political activity described above. He replied that those people are leaders of the AL. The Tribunal indicated that the punishment doesn’t appear to equate with his profile at the time. He again said that he used to go to meetings with friends and cousins. He said that his family support the BNP and that was the major issue. The Tribunal noted that it is not claimed that his father was violently beaten and he replied that they were also oppressed. When the Tribunal noted he was previously unable to provide any information about the type and level of oppression his father was subjected to he made no comment.
The Tribunal pointed out that another piece of evidence provided which is relevant to his political activities is the deposition in which he is named along with 78 other persons in respect of an incident which occurred on [date]/8/2011. He was asked why he did not mention this previously. He then said that there was a fight between the BNP and the AL and his name was added to a legal case. He said the fight may have occurred sometime in 2011 but he not entirely sure about that. He said he was beaten but sustained no fractures. When asked again why he had not mentioned this previously he said he has difficultly recollecting memories.
The Tribunal asked the applicant how many times he required medical treatment for injuries he sustained in the course of his political activity and he said it was two to three times. He couldn’t provide any further detail about when this occurred.
When asked if anything else happened to him prior to his departure to [Country 1] he again said he does not recall.
The Tribunal put it to the applicant that according to his written evidence there was an incident in 2010 followed by an incident [in] February 2011 in which it is alleged he was kidnapped, put in a van and tortured and later thrown onto the road and a third incident [in] August 2011 when he was seriously beaten on the head and required stitches. The Tribunal indicated that it could reasonably be expected he would recall such serious events. He replied that his head is not working.
When asked what he did on learning he had been included in a list of accused people in a criminal case he said he couldn’t do anything. He said his father went to talk with leaders of the BNP in [City 1] but they couldn’t help him. When asked about his whereabouts at this time he said he was in Dhaka.
The Tribunal put it to the applicant that it finds it significant that despite being an accused person in a legal proceeding he managed to depart the country soon after in November 2011 and then re-enter the country at least two times after that without hindrance. The Tribunal suggested that this, and reports about the prevalence of fraudulent documentation in Bangladesh, could suggest that the deposition is not a genuine document. The applicant did not respond.
The Tribunal pointed out that a letter he has provided from the Chairman of [Union Parishad Office] indicates he was a BNP student party member but it makes no mention of the level of his involvement or of any problems he encountered from the AL. The applicant stated that he asked his family to obtain the letter and the author should have known about his involvement and the problems he encountered.
The Tribunal noted that the applicant is now claiming that he is involved with the BNP in Australia and the applicant stated that he commenced his engagement with the BNP when he first arrived in 2017. Noting this the Tribunal observed it is curious he never mentioned this when providing information to the Department. He replied that he was asked about this and he said he was in touch with the BNP and attending meetings.
When asked about the level of his involvement with the BNP in Australia he said that whenever there is a meeting they send him a message and he attends. He said that is the extent of his involvement. He confirmed that he has no other involvement apart from as a participant in these meetings. He said on average there would be ten such meetings a year. The Tribunal put it to the applicant that his oral evidence in this respect is quite different to the claims made in his written statement to Tribunal. He replied that since Covid there are no such weekly meetings. He later said that there was a meeting in [Suburb 1] last month which he attended.
Noting the advice that he monitors Facebook pages the applicant was asked if he ever posts or makes political comments or criticises the Bangladesh authorities online and he replied he does not.
The applicant was asked about his return visit to Bangladesh [in] March 2015. He said that his mother was sick and wanted to see him. He said he had two months leave and the rule was that if he took two months leave he must stay in his country for two months. He said he did not stay in the village home when he returned. He lived in Dhaka. He said he came to know from family members that AL people knew he was back in the country and they wanted to attack him but didn’t know his Dhaka address. When asked how the AL came to know he was back in the country he replied “they came to know”.
The applicant confirmed his mother was in hospital in 2015 in Dhaka. He said she had a gastric problem and other health issues. He said she arrived to Dhaka about a month before his arrival. In total she was in Dhaka for two months, a month and half of which was spent in hospital. He said that approximately ten days prior to his departure from Bangladesh she left the hospital. After leaving hospital she joined him and his father where they were staying with a friend in Dhaka. He advised that no harm came to him on this occasion and he returned to [Country 1].
Regarding his return to Bangladesh [in] September 2016 he said his company required him to take leave every two years and return home. He said in 2015 he took his leave a bit late so they gave him leave again in 2016. He said he stayed in Dhaka for about two months on that occasion. He said his mother was quite alright at that time and was not in the hospital. He said when he found the situation was as before and there had been no improvement he went back to [Country 1].
The Tribunal asked the applicant whether he attended any political events in those two months he spent at home in 2016. He said he was in Dhaka and while he was in touch with friends he didn’t participate in any meetings in order to keep safe. He said that the AL wanted to attack him a couple of times on that occasion but he received no major harm or injury. When asked to explain this statement further he said that when the AL came to know about his whereabouts they came to attack him. He said he changed his location and they couldn’t locate him again.
The Tribunal put it to the applicant that his oral evidence in respect of the above is inconsistent with information contained in a written statement which indicates he went to party meeting during this visit, was stopped when returning home, asked for money and punched in the face. When asked to comment on this he stated that they wanted to harm him and so he changed his address.
The Tribunal put it to the applicant that the return visits he made to Bangladesh could cause it to think that the claimed events said to have occurred between 2009 and 2011 might not have happened because his willingness to return to Bangladesh doesn’t appear to support that he feared for his life there. When asked to comment on this observation the applicant opted not to.
The Tribunal also put it to the applicant that his latest statement which suggests the AL continue to go to his home and threaten his father over his whereabouts and are monitoring transport stations appears to be somewhat farfetched and that it was having difficulty accepting this given his short involvement with the BNP between 2009-2011 and his long absence from the country. The applicant replied that his is not a made-up story. He reiterated that his cousins are connected to the AL and everything that has happened has occurred in connivance with them.
The Tribunal discussed with the applicant country information it has sourced about the treatment of BNP members by the AL in Bangladesh. The Tribunal stated that it accepts there is long standing enmity between supporters of the AL and the BNP and that the AL has employed tactics to oppress opposition to its rule. The Tribunal accepted that those tactics often involve violent confrontation and misuse of state institutions and the judicial system. The Tribunal also stated that it accepts that violence typically increases around election times and that this is no different now with the upcoming election scheduled for 2024. However, the Tribunal noted that much of the country information continues to indicate that high profile opposition members and political activists are more likely to be targets of oppression. The Tribunal noted reports that arrests of lower-level members or supporters is more likely to occur in the context of demonstrations. The Tribunal pointed out that this view is reinforced by DFAT in its most recent report which states that there are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members than for higher level BNP leaders and that those who engage in low-level BNP activity for example attending rallies rather than organising them or attempting to convince others to join the party are less likely to be arrested than are higher profile actors. The Tribunal stated that even if it accepts his claims about his political opinions, he has been absent from the country effectively since 2011 and that it is difficult to accept he would remain a known political entity in Bangladesh. Furthermore, the Tribunal noted that his claimed political activity in Australia has been low level at best. The Tribunal noted that it might form the view that he is not a person with a political profile likely to attract adverse attention in Bangladesh. When asked to comment on these observations the applicant responded that there is a land dispute with his uncle and this combined with his political problems will cause him harm in Bangladesh.

The applicant was asked to provide further background on the land dispute. He said that his uncle [Mr B] wants to grab half of his father’s land by force. He said his father is not willing to give it up and there was a big fight and a legal case is now running. When asked which relatives are involved in this dispute he said that his father and his elder uncle, who is a witness on his father’s side ([Mr G]) are opposed by [Mr B] and his two sons, [Mr D] and [Mr E].
The applicant said that the land dispute started in 2011. He said there was an incident in 2015 and then a major incident in 2019 when his father was hospitalised. He said his father filed a case in 2019 and [Mr B] was arrested but then released the next day. He said that in 2015 his father made a general diary report to police.
Regarding the legal case the applicant confirmed it is still pending in court. He said they were given a court date but it has been adjourned and is lingering and not yet finalised.
The Tribunal enquired why the land dispute between his father and his uncle means it will be unsafe for him to return to Bangladesh. He said that they have attempted to harm his father and they are ready to harm him if he goes back. He said they know that his visa application was refused and as soon as he goes back they are going to harm him. When asked why the applicant responded that if he goes back he will support his father in his dispute and for this reason his uncle does not want him there.
The applicant was asked if he has involved himself in this family dispute from Australia. He said that they have threatening that they will bash him when he goes back.
The Tribunal asked how the land dispute and his political problems are related. He said that they may not be directly related but because [Mr B] belongs to the AL he has extra power and is trying to misuse that.
The Tribunal put it to the applicant that based on his evidence it seems that the police have taken his father’s complaints seriously and have acted accordingly despite [Mr B]’s involvement with the AL. The Tribunal also noted that it is not unusual for court dates to be deferred. The applicant replied that his uncle and his sons are frequently threatening him.
The applicant stated that his father lives in the paternal home which he inherited from his father. He said his father cannot give up the property and his land and move elsewhere. Even if he did there would be no guarantee he would be safe.
The applicant was asked whether he could relocate within Bangladesh to avoid any problems he might face in his local area. The Tribunal noted that he has lived abroad since 2011 and has demonstrated he has an ability to work and live in areas distant to his family. The Tribunal also noted that he is unmarried and has no dependents to consider and that being young he is still capable of finding employment. The applicant responded that the conflict over the land started back in 2009 and his uncle would try to harm him wherever he is.
The applicant was asked if he fears returning to Bangladesh for any other reasons he replied that his main problem is with his uncle.
Prior to the hearing concluding the applicant’s representative submitted that it is safe to assume that because the applicant lived outside of Bangladesh since 2011 he thought it might be safe to return in 2015 and 2016. She noted that he tried staying in another area in Bangladesh but still suffered some harm from AL people. She also submitted that should the applicant’s father try to sell his ancestral property this would likely further anger his brother and could result in even greater harm. It was further submitted that because the applicant’s uncle has political connections he could be found in other parts of Bangladesh.
Post-hearing submission
The Tribunal received a submission made on the applicant’s behalf which is dated 8 December 2023. The applicant’s claims in respect of his political profile in Bangladesh are repeated as is his claimed involvement with the BNP in Australia. It is submitted that the applicant is an existing member of Chatra Dal and there is a real chance that the AL and its Chatra League members may still try to persecute him if he returns to Bangladesh. It is noted that the applicant previously submitted that his political opponents have continued searching for his location after he came to Australia. He was informed by his father that such persons broke into his house and pressed him to reveal the applicant’s location.
It is submitted that the applicant’s previous head injury combined with immense pressure during the hearing may have contributed to his difficulty in recalling details.
It is submitted that the applicant’s father reported all the attacks on his son but they did not act because the AL holds all the political power in Bangladesh and the police fear revenge from the AL if they do anything that does not accord with the AL’s expectations. Indeed when the applicant was severely injured by AL members during an incident [in] August 2011 he, rather than any AL members was charged.
Reference is made to the recent national elections and the continuing suppression of the BNP by the AL. It is submitted that due to the applicant’s position in Chatra Dal the AL will take more strict measures to search for him.
It is submitted that the harm the applicant will face is nation-wide and it is stated that he ran into conflicts even when he was visiting Dhaka.

100. The applicant’s claims in respect of the land dispute are repeated including the fact that the applicant’s uncle and two sons, who are attempting to claim his father’s land, are members of the AL and therefore he cannot expect state protection and nor could he relocate in Bangladesh to avoid harm.
101. Attached to the submission are two photographs which it is claimed are photographs of the applicant’s badly injured father.
FINDINGS AND REASONS
Country of reference
102. The applicant provided a copy of a Bangladesh passport to the Department at the time of application which verifies his claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary the Tribunal accepts the applicant is a national of Bangladesh.
Political involvement
103. The applicant claims, that with the exception of one uncle and his two sons, all his family members are BNP supporters. He claims he became a member of the BNP’s Chatra Dal in 2009 and due to his political activities he was targeted and harmed by AL members and had a criminal charge made against him. He claims he departed Bangladesh and lived and worked in [Country 1] from 2011 until 2017. He claims that when he returned home to Bangladesh in 2015 and 2016 he realised the AL still had an interest in harming him.
104. Having considered the applicant’s claims and evidence the Tribunal is prepared to accept that his father and paternal uncles, with the exception of one, are supporters of the BNP. When the applicant was asked at hearing why he supports the BNP he spoke about this family tradition of support for the party. His responses did not indicate a strong awareness of the political ideology of the BNP or that he was motivated by this ideology to join the party. However, the Tribunal is prepared to accept that the applicant also supports the BNP based on family tradition.    The Tribunal is also prepared to accept that unlike the rest of the family the applicant’s uncle, [Mr B] and his two sons, [Mr D] and [Mr E], are affiliated with the AL.
105. The applicant claimed at hearing that his father and paternal uncles attend BNP meetings and processions. He said they are also oppressed because of their support for the BNP. He stated they have been assaulted and even hospitalised. The applicant’s testimony in respect of his family’s political involvement was brief and lacked convincing detail. Also, when asked who in particular was assaulted and hospitalised and when this occurred he said he couldn’t recall.
106. During the hearing the applicant repeatedly claimed that a previous head injury causes him to forget things, particularly when he is tense. This defence was repeated in the post-hearing submission provided by his representative. Noting this the Tribunal asked the applicant at the outset of the hearing if there is any medical evidence to support his claimed injury and associated memory problems and he indicated that there is not. In the absence of such and given the credibility findings below in respect of the claimed harm inflicted on the applicant, the Tribunal is not prepared to accept that his difficulty recalling details is due to a physical head injury he sustained in the course of his political activities.
107. Physical assaults on family members leading to hospitalisation would be serious events in the applicant’s life and the Tribunal considers the applicant would have some memory of such serious incidents had they occurred. Based on the available evidence the Tribunal is not satisfied that members of the applicant’s family have been the victims of physical harm for reason of their association with the BNP.
108. While not without some doubt, the Tribunal has given the applicant the benefit of the doubt and accepts that he may have been an ordinary member of Chatra Dal from 2009 until he moved to [Country 1] in 2011. In forming this view the Tribunal has had regard to the letter provided in submissions from [Mr F], Chairman of [Union Parishad Office], [City 1] dated 27 November 2018 which states that the applicant was a “student party member”.    However, the Tribunal is not satisfied on the available evidence that the applicant was an active member of Chatra Dal.
109. The applicant’s written claims indicate that his active involvement in Chatra Dal meant that he became a key person in his local area and due to his activity many young people joined the party and this angered the AL. He further claimed that he built close relationships with student leaders and the BNP branch. However, his oral testimony in respect of his political activity does not in the Tribunal’s view support these claims. When questioned about his level of political activity between 2009 and 2011 he said that he went along to meetings with his cousins and friends and went to processions and functions. He clarified that this was the extent of his involvement. Based on his oral testimony the Tribunal has concluded that he was an ordinary member of Chatra Dal in Bangladesh for two years from 2009 to 2011. The Tribunal does not accept that he was actively involved in recruiting young people to join the BNP or Chatra Dal or that his own actions inspired young people to do so. Nor does the Tribunal accept that he was closely associated with any student or branch leaders.
110. It is claimed that the applicant remains a member of Chatra Dal but when he was asked whether he remains a member during the hearing he appeared somewhat surprised by the question and replied “I’m here”. When the Tribunal sought further clarification about his membership status he simply said that his name still appears in his ward. Based on his responses the Tribunal is not satisfied that the applicant has maintained his membership of Chatra Dal.
111. The applicant has also suggested that he remains keenly interested in the affairs and political activities of the BNP and Chatra Dal.   The applicant claims he has had a long association with Chatra Dal and in his statement dated 28 November 2023 he claimed that he follows the BNP and Chatra Dal on social media to keep abreast of their latest political activities in Bangladesh. He stated that he also attends BNP and Chatra Dal meetings in [Suburb 1] regularly. During the hearing the applicant displayed some knowledge of the BNP but the Tribunal found it surprising given his claimed level of political involvement with Chatra Dal that he did not appear to know, that like the student wing, the BNP structure includes various other political wings. He also demonstrated no knowledge about key developments within Chatra Dal in recent years. The Tribunal notes that in 2019 the BNP dissolved the existing committee of Chatra Dal[1]. In the same year the posts of President and General Secretary of Chatra Dal were filled following an election process, for the first time in 27 years[2]. The Tribunal notes the applicant was resident in Australia at the time and would not expect him to necessarily know the intricate details of these events. However, given his claimed level of involvement and ongoing interest in Chatra Dal, the Tribunal was troubled that he demonstrated no knowledge of these events including the rather significant event involving the election of new leadership for the first time in 27 years.
[1] ‘Chhatra Dal central committee dissolved’, Dhaka Tribune, 4 June 2019.
[2] ‘Chhatra Dal elects central leadership after 27 years’, Dhaka Tribune, 19 September 2019
112. When his apparent lack of knowledge of key events within Chatra Dal was discussed with the applicant during the hearing he again put it down to the claimed head injury which causes him to forget things, particularly when he is tense. As noted above the Tribunal does not accept this defence. Based on the available evidence the Tribunal is not satisfied that the applicant remains actively involved with or remains keenly interested in Chatra Dal’s affairs. The Tribunal is not persuaded that he would rejoin Chatra Dal if he is required to return to Bangladesh.
113. In his statement dated 28 November 2023 the applicant claims that he is actively involved with the BNP in Australia. He stated he regularly attends BNP and Chatra Dal meetings in [Suburb 1]. He said he helps BNP members to organise their weekly meetings including finding a meeting place, publicising the meetings and hosting the meetings. During the Tribunal hearing the applicant stated that he commenced his engagement with the BNP in Australia soon after his arrival in 2017. When questioned about the level of his engagement he said he attends meetings when notified and has had no other involvement other than as a participant in meetings. He estimated that on average he would attend ten meetings in a year. Despite the late introduction of this information the Tribunal is prepared to accept the applicant attends occasional meetings of the BNP in Australia. Based on his oral testimony the Tribunal does not accept the applicant assists in organising or hosting these meetings.
Claimed past harm
114. In his written statement of claims dated 21 July 2017 the applicant stated that he was attacked by AL cadres on [date] October 2010 when returning from school, beaten with a bamboo and iron rod and left unconscious. He stated that party people carried him to a medical centre. Thereafter it is claimed that on [date] February 2011 when returning home from a Chatra Dal meeting he was kidnapped by AL cadres, held in a van for three hours, tortured and then thrown by the roadside where village people found him unconscious. He stated that he was admitted to hospital for two nights.   In a further statement submitted to the Department on 25 February 2019 the applicant added that he was attacked a third time after attending a BNP rally on [date] August 2011. He stated that the rally was attacked by AL cadres and BNP activists were wounded including himself who was seriously beaten with bamboo sticks causing an injury which required stiches. After this incident his name was included on a charge sheet against [number] BNP leaders.
115. During the Tribunal hearing when questioned about the past harm he suffered in Bangladesh the applicant stated that on an occasion when there was supposed to be a BNP meeting the AL caused chaos and the meeting could not proceed. He said that when returning home a group of AL people attacked them and he was physically assaulted on the head and severely injured. He said a person passing by took him to the hospital where he remained for seven to eight days.    He confirmed this was the only time he was attacked.
116. The applicant was uncertain about the date of the abovementioned attack. Later in the proceedings he spoke about a less serious attack which might have occurred sometime in 2011. He said he was beaten but sustained no fractures.   He said after this incident his name was included in a charge sheet brought by the AL against various BNP members.    When asked if these were the only incidents which occurred prior to him leaving for [Country 1] in 2011 he replied “yes”.
117. The applicant has provided a confused and inconsistent account of the incidents which are claimed to have occurred in Bangladesh prior to his departure to [Country 1] in 2011. His written evidence refers to three incidents in which he was harmed whereas his oral testimony at best indicates he was harmed on two occasions. In his written claims he indicated he was once stopped and beaten when returning from school whereas his oral testimony only referred to incidents which occurred following political meetings. On the occasion that he was hospitalised his evidence differs in respect of the time he spent in hospital. In his written evidence he says he was hospitalised for two days whereas at hearing he said he spent seven to eight days in hospital. Also, when presenting his oral testimony the applicant made no mention of the serious claim of being kidnapped, held and tortured in a van for three hours by AL cadres before being left unconscious by the side of the road. When discussing these concerns with the applicant during the hearing he merely stated that “his head is not working”. For the reasons noted above the Tribunal is not satisfied that the applicant’s confusion or inability to accurately recall details is for reason of a prior head injury. While the Tribunal accepts the claimed incidents occurred several years ago they are serious, particularly the claims that he was kidnapped and tortured and left unconscious beside the road. The Tribunal is of the opinion the applicant would recall such a serious incident. Given his confused and inconsistent testimony overall the Tribunal is not persuaded these claimed incidents occurred.
118. The Tribunal has considered the documentary evidence submitted by the applicant in support of his claims. The first document is a general diary ([No]) made on [date] January 2011 which lists the applicant and his father as petitioners against three defendants who are members of the AL. The general diary notes the applicant is from the BNP student party and for this reason the defendants have been threatening him from time to time. Despite the applicant’s confused testimony as to when he was attacked, his earlier evidence is that he was once attacked on [date] October 2010 and beaten to the point of needing hospitalisation. The Tribunal notes that the general diary was made after this event. During the hearing the Tribunal put it to the applicant that the report makes no mention of the physical attack he earlier claimed. The applicant responded that after he was assaulted he was threatened many times and that’s why he made the report to the police. The Tribunal has considered the applicant’s response but fails to understand why he would have informed the police that he was threatened but did not report the serious physical attack he claims he endured [in] October 2010. During the hearing the Tribunal also discussed with the applicant its concerns about the ease with which fraudulent documentation is reportedly procured in Bangladesh[3]. When afforded an opportunity to comment on this observation the applicant declined to do so. For the reasons mentioned, the Tribunal has given no weight to the general diary report.
[3] The Research Directorate of the Immigration and Refugee Board of Canada (IRB), ‘Bangladesh: Reports of fraudulent documents’ 20 September 2010; IRB, ‘Bangladesh: Reports of fraudulent documents’, 20 August 2015; UK Home Office, Fact Finding Mission to Bangladesh, September 2017; Lifos, ‘Bangladesh Falska Handlingar’, 25 February 2019

119. The second document is entitled “The application of acceptance of “deposition”’ and is dated 13 August 2011. This documentation relates to an incident which allegedly occurred [in] August 2011 and names [number] accused persons including the applicant. The Tribunal acknowledges that this documentation is consistent with the claim raised by the applicant in his statement dated 25 February 2019 and in his oral testimony. However, for the reasons outlined above the Tribunal is not satisfied that the applicant’s testimony in respect of any of the past harm he claims can be believed. The Tribunal is not satisfied that the applicant was present at an incident [in] August 2011. Further, if his claims are to be believed, which they are not, the Tribunal considers it unlikely the applicant would have been able to leave the country let alone enter and depart a further two times while wanted by the police in connection with this incident. Relevantly, the applicant himself has claimed that after finding out he was implicated in a case he fled his house and settled in Dhaka because the AL and the police were looking for him. For these reasons and again having regard to information which indicates the ease with which false documents can be obtained in Bangladesh, the Tribunal is not satisfied that the deposition is genuine and therefore has afforded it no weight.
120. Despite that it is not claimed, the Tribunal acknowledges that false charges can reportedly be brought against BNP members by the AL. Given the credibility concerns expressed herein the Tribunal is also not satisfied in this case that the applicant has been implicated in a false charge.
121. In addition to these concerns the Tribunal notes that at best the applicant had a brief period of low-level engagement with Chatra Dal from 2009 to 2011 while a teenager. As discussed with him during the hearing the Tribunal finds it difficult to accept this involvement attracted the extreme punishment he claims he suffered from AL cadres. While it is acknowledged his family may primarily be BNP supporters there is no reliable information before the Tribunal to indicate that other family members were targeted for their political opinions or activities or that this would increase the likelihood of the applicant being targeted and harmed for reason of him being a Chatra Dal member or BNP supporter.
122. Further, the Tribunal finds it difficult to accept that having endured such serious harm at the hands of the AL the applicant returned to Bangladesh twice in 2015 and 2016. During the hearing the applicant was afforded an opportunity to comment on this observation but he declined to do so. The Tribunal notes the submission made on his behalf that having lived away since 2011 he thought it would be safe to return. While this argument might have had some merit in relation to the first visit, based on his evidence in respect of what transpired during that visit, it does not provide a plausible explanation as to why he returned a second time.
123. For these reasons, the Tribunal is not satisfied and does not accept that the applicant was harmed on any occasion in either 2010 or 2011 as a result of his political activity in support of Chatra Dal and/or the BNP generally.   Nor does the Tribunal accept that he was included in a charge made against numerous BNP supporters [in] August 2011 or that this required him to flee his home because AL cadres were threatening to kill him and the police were looking for him. The Tribunal considers the applicant has fabricated these claims for the purpose of obtaining a protection visa.
124. As noted above the applicant claims to have made two return visits to Bangladesh in 2015 and 2016. In his statement dated 21 July 2017 he stated that during the 2015 visit AL local leaders found him and tried to kidnap him and threatened to kill him and on learning this he escaped with the help of a few friends and returned to [Country 1]. During his second visit in 2016 he stated that on [date] September 2016 he attended a party meeting and when returning home after the meeting the same group of people beat him badly and threatened to kill him and so his parents decided to send him back to [Country 1]. In a further statement provided to the Department on 25 February 2019 he stated that when returning home from the party meeting [in] September 2016 he was attacked by four people, three ex-Chatro League cadres and his cousin who demanded money and told him to arrange a further 10 lakh taka which they would pick up the following day. He stated that two of the men punched him in the face and he started bleeding.
125. During the Tribunal hearing the applicant testified that he heard during both visits that AL cadres were trying to find him to attack him but they did not succeed and he returned to [Country 1].   He also stated that while he was in contact with friends he did not participate in meetings in order to keep safe.   When the Tribunal pointed out that his oral testimony appears to differ to his previous written evidence in significant ways, namely that he did not suffer any physical harm on either visit and did not participate in any political meetings during either visit, he merely stated that the AL wanted to harm him so he changed his address. The Tribunal has considered his response but considers it does not explain the inconsistencies in his evidence. On the one hand he claims not to have been harmed and on the other he claimed he was punched in the face during the visit in 2016. Also, on one hand he claims to have been harmed returning home from a political meeting in 2016 whereas on the other hand he claims he did not participate in any meetings during either visit in order to remain safe.
126. For the reasons outlined above the Tribunal is not satisfied that the applicant was of any interest to AL cadres when he returned from [Country 1] to Bangladesh in either 2015 or 2016. In addition, his inconsistent account of what occurred during those visits, causes the Tribunal not to believe his evidence in this respect. The Tribunal does not accept that AL cadres looked for the applicant with a view to harming him during his return visit to Bangladesh in 2015. The Tribunal also does not accept that AL cadres and/or his cousin either demanded money from him or physically assaulted him during his return visit to Bangladesh in 2016. Again, the Tribunal considers the applicant has fabricated these claims.
127. It has also been submitted that AL cadres are continuing to search for the applicant to this day including approaching his father at his home and threatening him to reveal his whereabouts and monitoring transport stations. Notwithstanding that the suggestion the applicant was of any adverse interest to AL cadres is refuted, as discussed with him at hearing the Tribunal considers this claim in any event is farfetched and unconvincing given his claimed short membership of Chatra Dal between 2009 and 2011 and his long absence from the country. The Tribunal has considered his response that his is not a fabricated story and that his cousins are connected with the AL and everything which has happened has been in connivance with them. However considering the evidence overall the Tribunal remains unconvinced that the applicant was or is a person of interest to the AL. It follows that the Tribunal does not accept that AL cadres having been visiting his father at home and threatening him or that they are monitoring transport stations.
Future harm
128. Turning to the future, the Tribunal has considered whether there is a real chance the applicant will suffer serious harm for reason of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future.
129. The Tribunal accepts the applicant supports the BNP and may wish to do so if he returns to Bangladesh. As noted above the Tribunal does not accept that he is presently a member of Chatra Dal or will in future resume membership of the Chatra Dal. The Tribunal is satisfied the applicant is and will remain an ordinary supporter of the BNP, as are the majority of his family in Bangladesh.
130. According to DFAT’s most recent country report[4] Bangladesh politics have long been dominated by the AL and the BNP. The relationship between the two parties is characterised by longstanding enmity. The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami.   Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
[4] DFAT, Country Information Report, Bangladesh, November 2022
131. DFAT reports that the BNP has significantly reduced visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming they were fixed so that AL would win, a tactic the AL also used when the BNP was in power.   BNP figures allege that they have been subjected to enforced disappearance. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.[5]
[5] ibid
132. DFAT reports there are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even it is unlikely. DFAT further reports that false criminal charges and vexatious civil court procedures are used to harass members of the BNP. 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.[6]
[6] ibid
133. Other sources confirm that the police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances, torture and extra-judicial killings occur.[7] There were also reports of political confrontations and clashes between the AL and the BNP increasing in the run up to the national election which was held in January 2024 and in which the AL was returned to power[8]. Human Rights Watch stated that mass arrests and police raids of opposition party members homes raise serious concerns about violence and intimidation in connection with parliamentary elections.[9]
[7] ‘2021 Country Reports on Human Rights Practices: Bangladesh’, US Department of State, 12 April 2022; ‘Bangladesh: Stop Flouting UN Rights Concerns’, Human Rights Watch 17 March 2022
[8] ‘Bangladesh opposition says 4000 charged in government crackdown’, Al Jazeera, 11 October 2022; ‘Former councillor among 32 BNP leaders, activists arrested in Dhaka’, Bdnews24.com, 12 November 2022
[9] ‘Bangladesh: Crackdown on Political Opposition’, Human Rights Watch, 10 October 2022
134. When the above information was discussed with the applicant during the hearing he then turned his attention to the claimed land dispute between his father and his uncle who he claims is affiliated with the AL. The Tribunal’s assessment of this issue appears below.
135. The Tribunal does not accept that the applicant was targeted by the AL for reason of his political profile in Bangladesh. He has effectively been absent from the country since 2011. While the Tribunal accepts he has attended some meetings of the BNP in Australia his presence there has been as that of an ordinary supporter. The Tribunal is not persuaded that his attendance at these meetings in Australia has heightened his political profile while living outside of Bangladesh.
136. If the applicant returns to Bangladesh the Tribunal is prepared to accept he might attend some occasional BNP meetings and gatherings as an ordinary supporter. However, based on the country information outlined above, and paying particular attention to DFAT’s assessment of risk profiles, the Tribunal is not satisfied that this level of political activity is sufficient to find that he will attract adverse attention from the authorities or AL members. Nor does the Tribunal consider, on the available evidence, that the bulk of the applicant’s family members have BNP profiles of interest to the AL or that their political involvement will mean that the applicant is targeted for harm by AL members or supporters. The Tribunal notes the submission made post-hearing regarding the national election and the applicant being at further risk because of his membership of Chatra Dal. However, as noted above the Tribunal considers the applicant was only associated with Chatra Dal for a brief period between 2009 and 2011. In any event, the election has passed and even if ongoing tensions remain the Tribunal is not satisfied that the applicant has a profile today which is likely to mean he will be targeted by the authorities, state institutions, or AL members or supporters, including Chatra League members if he returns.
137. Based on the available evidence the Tribunal considers the risk of the applicant being harmed on return to Bangladesh by either the authorities or AL members or supporters because of his political opinions is remote. Therefore the Tribunal finds there is not a real chance the applicant will suffer serious harm at the hands of the AL or the authorities for reason of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future.
Land dispute claim
138. The applicant claims that his father’s land has long been coveted by his father’s cousin [Mr B] and his two sons. He claims that an incident occurred in 2015 followed by a major incident in 2019 when his father was seriously injured and hospitalised. Despite some discrepancies in respect of when the difficulties commenced, the applicant’s oral testimony in respect of this family dispute was delivered convincingly and in a manner which persuaded the Tribunal he was telling the truth. He gave a clear account of the division of land within his family and provided a plausible explanation for the motivations of his uncle [Mr B] and for why his father is unwilling to relinquish his ancestral land and property or relocate elsewhere in Bangladesh.
139. Documentation provided in submissions indicates that in 2015 the applicant’s father made a police complaint against [Mr B] and his son [Mr E] in connection with what appears to be mistreatment of a cow and was threatened to be killed for this reason. Following this complaint, an application was made on the same day for permission for the court to investigate the matter. No further evidence in relation to this incident was provided.
140. In regard to the 2019 incident various documents have been submitted in support of the alleged land dispute involving the applicant’s father, [Mr B] and his sons including a general diary made on [date] September 2019, a First Information Report made by a witness, [Mr G] (the applicant’s paternal uncle who sides with his father), a deposition made by [Mr G] attesting that the applicant’s father was stabbed in the neck in the course of a dispute over land, a charge sheet in respect of this event and an Injury Certificate issued by the Upazila Health Complex in [City 1] regarding an examination of the applicant’s father conducted [in] September 2019. After the hearing the applicant submitted photographs which he claims are of his injured father. The applicant also submitted a letter from the applicant’s sister to the Headmaster of [Secondary School 1] complaining that she was beaten on the way to school on 28 January 2017 by [Mr B] and [Ms H] whom she claimed were blocking her access to her usual route through the family’s land.
141. The Tribunal had concerns about the authenticity of certain documentation provided in support of the applicant’s political claims, which are outlined above, however, it is prepared to accept that the documents pertaining to the claimed land dispute can be relied upon. Unlike his claims of past harm for political reasons the applicant’s testimony as to what occurred in connection with the land dispute was generally consistent and plausible. While the Tribunal remains of the view that persons are able to obtain a variety of falsified documentation in Bangladesh it is not concerned that this has occurred in the case of the supporting evidence pertaining to the land dispute.
142. Based on the available evidence the Tribunal accepts that the applicant’s father is involved in a dispute with his cousin [Mr B] and his two sons, principally over land ownership. The Tribunal accepts that there was an incident in 2015 and another in 2019 in which the applicant’s father was attacked and sustained a knife wound to his neck. The Tribunal accepts that [Mr B] was charged and arrested but later released. The Tribunal is also prepared to accept that the case is not yet finalised as the court hearing has been delayed.
143. The applicant claims that [Mr B] and his sons have attempted to kill his father and they are also ready to harm him if he returns to Bangladesh because they know that on return he will support his father to retain their land. He claimed that they continuously threaten his father. The Tribunal accepts there is an ongoing dispute and ongoing court proceedings and considers it likely the applicant, who is the only son in the family, could indeed become embroiled in these family problems should he return home. The available evidence indicates a history of threatening and violent behaviour on the part of [Mr B] and his sons toward his father and the Tribunal accepts there is a chance, which is not remote, that the applicant could also be seriously physically harmed by his relatives in connection with the ongoing land dispute if he returns home. That said, the Tribunal is satisfied that the harm which is feared is due to a personal struggle between family members over land and is not for any of the reasons set out in s5J(1)(a) of the Act. Accordingly the Tribunal finds the applicant does not have a well-founded fear of persecution and is therefore not a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.
144. Given the above, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal notes that 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 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 – s.36(2B)(b) of the Act.
145. As discussed with the applicant the evidence he has provided indicates that the police took his father’s complaint in 2019 against [Mr B] and his sons seriously and charges were laid. Further, the applicant has testified that the matter has progressed to court albeit that the court date was deferred.   The applicant maintains that [Mr B] belongs to the AL and he therefore has extra power and is trying to misuse that power to influence the legal process.

146. The Tribunal acknowledges that the ruling parties in Bangladesh, both the AL and the BNP, and their affiliated organisations, control and use state machinery to suppress opponents, including using the courts and legal processes to suppress their opposition while in office[10]. In this case it is claimed and the Tribunal accepts that [Mr B] is aligned with the AL and is the Chairman of the local ward. His sons are also claimed to be aligned with the AL and AL personalities and the Tribunal accepts this also. Notwithstanding this, and although it is not clear what transpired in respect of the police complaint made by the applicant’s father in 2015, the evidence which the applicant has himself provided indicates that the police took the appropriate action when a complaint was made against [Mr B] and his sons in 2019. The complaint was recorded, a witness statement/deposition was taken and documented and a charge sheet was issued. According to the applicant’s oral testimony the matter progressed to court. While the Tribunal accepts the court date may have been set back there is nothing before the Tribunal to indicate that the matter will not be heard at a date in future.
147. The above series of events does not in the Tribunal’s view support the applicant’s claim that [Mr B] or his sons have been able to manipulate the legal process using their political affiliations or connections. While the applicant claims they continue to harass his father it is not claimed and nor has there been evidence provided which suggests his father has suffered further significant harm. This could indicate that [Mr B] and his sons are taking the charges against them seriously. Additionally, the Tribunal notes that [Mr B] is Chairman at the ward level, a relatively lower level of government, and that the dispute is of a personal nature involving family land rather than accusations between warring political parties or identities. The Tribunal questions the level of influence he is able to wield over the police in the circumstances and the claimed facts appear to support this assumption.
148. In light of the above, and as there is nothing before the Tribunal to indicate that the police would act any differently in the event the applicant required help in similar circumstances, the Tribunal is of the view that the applicant could obtain protection from the Bangladeshi authorities in the event it is needed. Therefore the Tribunal is satisfied that there is not a real risk that the applicant will suffer significant harm if he is required to return to Bangladesh for reason of the land dispute. The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Claimed harm for reason of being perceived to be a wealthy returnee
149. The Tribunal notes that in the course of the application for the protection visa the applicant has written three statements in which he sets out details of his claimed fear of harm in Bangladesh. In none of these statements did he raise a claim of fearing harm due to being perceived to be a wealthy returnee. The claim arose during the protection visa hearing with the delegate on 27 February 2019 when the applicant’s representative submitted that the applicant is likely to be perceived as a wealthy returnee given he has lived in [Country 1] and a western country for several years and will be targeted for extortion.
150. During the Tribunal hearing the applicant was asked to explain his fears in this regard including whom he fears harm from. The applicant very clearly responded that he does not fear harm for this reason.
151. In the circumstances the Tribunal is satisfied that the applicant does not genuinely fear harm in Bangladesh for reason of him being perceived to be a wealthy returnee and has not considered the claim further.
[10] ‘Democracy decaying in Bangladesh’, East Asia Forum, 6 March 2018
CONCLUDING PARAGRAPHS
152. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.

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

154. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2024] AATA 3023

17 January 2024

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