1909091 (Refugee)

1909091 (Refugee) [2023] AATA 4196 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Rumana Jahan
CASE NUMBERS:  1909091 & 2018221
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tamara Hamilton-Noy
DATE:7 September 2023
PLACE OF DECISION:  Melbourne
DECISION:

The Tribunal:
a.remits matter 1909091 (Temporary Protection visa application made on 28 August 2015) with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act; and
b.sets aside the decision in matter 2018221 to refuse the applicant a Safe Haven Enterprise visa application made on 10 September 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 07 September 2023 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – section 91K bar not applicable – section 48A bar not lifted – invalid visa application – imputed political opinion – Jamaat-e-Islami (JI) – Bangladeshi Nationalist Party (BNP) – involvement in uncle’s campaign – anti-Awami league (AL) – particular social group – individuals whose family members are politically active or are perceived to be against the AL – credibility concerns – health and mental health – depression – Gastro-oesophageal reflux disease (GORD) – complementary protection – arbitrary deprivation of life – torture and cruel or inhuman treatment or punishment – reasonableness of internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 April 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 8 May 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Temporary Protection visa on 28 August 2015 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 10 September 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a Temporary Protection visa on 28 August 2015 was refused by the delegate on 29 April 2016 and the applicant was re-notified of the decision on 23 March 2019. An application for review of that decision was made on 12 April 2019.
The second visa application was refused by a delegate on 4 December 2020. An application for review of that decision was made on 21 December 2020. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
Claims and Evidence
Evidence before the Department
The applicant has made two applications for protection to the Department. For both applications he provided the same statutory declaration, dated 30 July 2015, which set out the following claims for protection:
I was born in Bangladesh on [Date 1], in [Village 1] in the Comilla District, Chittagong Division. The village is about a [number]-hour drive from Dhakar. I am a sunni Muslim and a citizen of Bangladesh.
The Department of Immigration has had an incorrect date of birth for me which needs to be corrected. [Date 1] is the date of birth on my birth certificate and on my Bangladesh drivers licence and I have given the Department of Immigration both of these documents.
My father, [Mr A], operated a fish business in Bangladesh. He cultivated fish in a fish farm and sold the fish in the market. My mother [Ms B] is a housewife. I have a brother and a sister. My brother is currently in [Country 1] working as a [Occupation 1] and my sister is at high school in Bangladesh.
My official name is [applicant name]. This name is on my birth certificate and on my driving licence and passport from Bangladesh. My identity card in Bangladesh expired and new digital cards have been introduced. I cannot get one of these unless I attend in person. My family says they have dispensed with my old card.
The nickname that I am most commonly known by in Bangladesh is [Alias 1]. This nickname comes from my grandfather. When I was initially questioned by immigration authorities, I gave my nickname rather than my official name because it is the name that I most often use. However I have told the Department of Immigration about this and make this application for a Temporary Protection Visa under my official name.
I left Bangladesh because I experienced persecution from supporters of the Bangladesh ruling party, the Awami League. This was because they viewed me as being an opposition supporter because of my association with my uncle and a friend who were involved in opposition politics. I could not have moved to another part of Bangladesh to be safe because the Awami League is a national organisation who shares information throughout the country about its opponents.
I left [Country 2] because I experienced further persecution from Awami League supporters there.
I did not talk about my problems in Bangladesh when I first arrived because I was very scared. I did not know what was facing me in Australia. I worried that these problems would follow me here if I talked about my past. I thought it would be safer for me not to talk about it. Gradually I came to learn about he way things work here in Australia and to trust my case manager with the information about my past.
My uncle [Mr C] (my father’s brother) was running for election in around 2004 or 2005 in [Village 1] on behalf of an opposition party, Jamaat Islamiah. People who were involved in his campaign were frequently harassed and physically attacked by Awami League supporters. Jamaat Islamiah is a Muslim party who want to establish Islamic law in Bangladesh. The Awami League is a secular party. As the Awami League is against religious rule in Bangladesh, they are strongly opposed.
I also had a friend [Mr D] who was involved in political activities. He was involved with the Jamaat Islamiah party in [Village 1]. My friend [Mr D] would associate with members of the opposition and attend meetings and demonstrations.
Because of my association with my friend and my uncle, I was also considered to be an opposition supporter.
An Awami League national minister (the Minister of [specified portfolio]) lived in my village. His name is [Mr E]. [Mr D] went to the Awami League minister’s house and caused damage as part of a protest. I was not involved in this.
After this incident, I was sitting in a club with [Mr D] and we were discussing this incident. Some people associated with the Awami League came and accosted us. An argument broke out about the attack on the minister’s house. A fight then started. When the fight started, we ran away from the club. We were afraid of the Awami League as they threatened us with violence. I have obtained a statement certified by the [named] Union Council which confirms this incident. The Union Council is responsible for five or six villages – I think it is like the local Councils here. I requested this certificate from them through my father after I came to Australia in support of my application.
The Awami League is known to be violent towards those who support the opposition. Whenever there is a meeting or a protest, they will go to the gathering and attack the people present. There are security forces who follow the ministers around and carry out violent attacks on their behalf.
Due to the involvement of my friend and my uncle in opposition politics, I was afraid of the Awami League.
My younger sister [Ms F] is regularly harassed in school and abused verbally because she is considered an opposition supporter because of our uncle.
I could not seek the assistance of the local police in the village because we were afraid that the police had been bribed by the Awami League. The local police are known to be very corrupt and assist whoever gives them money. The police are in the pay of the Awami League.
After this incident, due to our fear of further attack, I, and my friend [Mr D] decided to leave the country. I spent time in Dhaka before leaving because of my fear. I couldn’t move to another part of Bangladesh to be safe because the Awami League, being a national government, is powerful throughout Bangladesh.
My friend [Mr D] left for [Country 3] in 2006.
My younger brother [Mr G] left for [Country 1] a couple of years after I left for [Country 2], to the best of my knowledge. I understand he was feeling unsafe and had received threats. He now lives and works legally as a [Occupation 1].
I obtained a passport to leave Bangladesh. I obtained the passport by filling out a form and providing a copy of my birth certificate and a certificate from the Chairman of my District. I obtained a 3 year [visa] to work in [Country 2] with the assistance of an immigration agent.
After I left for [Country 2] in 2007, I heard about some other incidents which would have affected me if I had not left Bangladesh. The Awami League supporters confronted opposition supporters in the market and other public places in the village and attacked them. I would have suffered similar harm if I had remained.
I arrived in [Country 2] in 2007. I worked from 2007 to April 2011 for a chain of convenience stores called [Business 1]. I worked during that period in 4 different stores in [specified state] that were owned by a man named [Mr H]. Later I worked at a paper factory. The employers held my passports. I asked for my passport before I fled [Country 2] but the employers would not give it to me. He did not know I was leaving. I lived in [specified state] for the time I was in [Country 2].
While I was in [Country 2], I heard about the death of my friend [Mr D], who had returned from [Country 3]. He had returned to Bangladesh and had been beaten to death by Awami League supporters and left in the street. I fear a similar fate if I return to Bangladesh. I was told this over the phone by my father. I cannot remember which year in which he told me.
I understand there are notes on my Department file saying that I stated my friend’s death occurred in 2006 however this is when he fled from Bangladesh for his safety. He went to [Country 3] and it was after he returned to Bangladesh some years later when I was in [Country 2] that he was killed.
The Awami League were very active in the Bengali community in [Country 2]. There was a lot of discussion in the Bengali community about the activities of the Awami League and the opposition, and there were a lot of people in the community who were known to be supporters of the Awami League.
Among the Bangladeshis in [specified state] was a person from a nearby village in Bangladesh. His name was [Mr I] and he was an Awami League supporter. He informed the other Awami League supporters of my background in Bangladesh – that I associated with [Mr D] and of my uncle’s political involvement.
Once the Awami League supporters knew of my background, they (including [Mr I]) began harassing me. They would loiter outside my workplace, making threatening comments. Sometimes they would also harass me at my home but mainly at work. They would inform me about Jemaat Islamiah leaders being arrested and killed, and tell me that the same fate awaited me. I was frightened of them because of their reputation for violence. I was afraid that they would tell my boss that I was with Jamaat Islamiah and tell other lies about me.
As a result, I changed jobs. From January 2011 until 5 September 2012 I worked as a [Occupation 2] in a [factory] called [Business 2]. I understand the boss at this factory arranged a new work visa for me and as I have said he held my passport. I believe the visa would have expired in 2013.
[Mr I] and other Awami League supporters managed to find my new workplace and the harassment continued there. I was afraid to go to the [Country 2] police. They are hostile towards migrant workers and I worried that my problems with the Awami League supporters would only get worse.
I decided I needed to leave [Country 2] to travel to Australia as [Country 2] was not a safe place for me. My working papers and second passport were still with my boss at the [factory] and my original passport was with my boss at the convenience store, [Mr H].
In September 2012, I began arrangements to travel to Australia. I spoke to a Bengali person in [Country 2] who gave me the number of a Burmese man who could help to arrange my travel. He organised a boat from [Country 2] for me. I paid MYR 10,000 for this.
I stayed in [Country 2] for about 1 month and 9 days, travelling gradually to [Country 3]. Upon arrival in Darwin I was taken into immigration detention.
My father’s fish business has also been affected by the Awami League. In 2012, the fish stocks in the fish pond were poisoned by the Awami League. As a result his business was destroyed. Even though his brother (my uncle) has run for election a long time previously, he was seen as an opposition supporter. After my father’s business was destroyed, he was not able to recommence it and has not been in employment. Since I came to Australia, in telephone conversations with my father, he has told me on a number of occasions that he has received threats that if my brother or I returned to the country, we would be killed. He has received these threats from Awami League supporters.
The applicant attended interviews with the Department on 16 November 2015 and 16 November 2020 and the Tribunal had access to a recording of the interviews.
On 29 April 2016, a delegate of the Department found that the applicant had given inconsistent and implausible information in relation to his claims and did not accept the applicant was assaulted, that he had a friend [Mr D], that [Mr D] was murdered or that the applicant’s limited support of his uncle’s campaign would draw violent pursuit from AL supporters. The delegate found the applicant was not of adverse interest to AL. The delegate did not accept the applicant was harassed in [Country 2] or that his family members were harassed in Bangladesh. The delegate accepted the applicant’s uncle was a candidate for JI and that the applicant put up posters in support of his uncle’s campaign. The delegate was not satisfied the applicant faced harm in Bangladesh because of his imputed political opinion or for any other reason.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
The applicant was first invited to attend a hearing to give evidence and present arguments on 19 September 2022. On 14 September 2022, the applicant’s representative wrote to the Tribunal requesting an adjournment of the hearing on the basis that the representative had been appointed the day prior. On 14 September 2022, the Tribunal wrote to the applicant advising that the adjournment request was granted and inviting the applicant to attend a hearing to give evidence and present arguments on 17 October 2022.
On 13 October 2022, the applicant’s representative provided written submissions and a translated copy of a political poster to the Tribunal.
The applicant appeared before the Tribunal on 17 October 2022. The applicant’s representative attended the hearing with him and the Tribunal was assisted at the hearing by an interpreter in the Bengali and English languages.
On 19 October 2022, the applicant was invited to attend a resumed hearing to give evidence and present arguments on 15 November 2022.
The applicant appeared before the Tribunal on 15 November 2022. The applicant’s representative attended the hearing with him and the Tribunal was assisted at the hearing by an interpreter in the Bengali and English languages. At the resumed hearing, the Tribunal took evidence from the applicant’s father by telephone to Bangladesh.
On 15 January 2023 the applicant’s representative provided a psychological report and written submissions to the Tribunal.
On 16 June 2023, the applicant was invited to attend a resumed hearing to give evidence and present arguments on 4 July 2023. The reason for the resumed hearing was that, following a request by the Department earlier in 2023 that the matter not be progressed while the Department was considering legal issues relating to the applicant’s lodgement of two separate protection applications and consideration by the Tribunal of the legal issues arising from this, the Tribunal sought to discuss the validity of each application with the applicant and seek his comment on this.
The applicant appeared before the Tribunal on 4 July 2023. The applicant’s representative attended the hearing with him and the Tribunal was assisted by an interpreter in the Bengali and English languages.
On 16 August 2023, the applicant’s representative provided written submissions to the Tribunal and on 18 August 2023 the applicant’s representative provided a psychologist referral letter to the Tribunal, prepared by the applicant’s GP and dated 16 August 2023.
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.
Assessment, Reasons and Findings
The issue in this case is whether the applicant meets any of the alternate criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is an individual owed protection as a refugee or is owed complementary protection, or is a member of the same family unit of such an individual. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of reference
The applicant has consistently claimed to be a citizen of Bangladesh. The Tribunal hearings were conducted with the assistance of an interpreter in the English and Bengali languages and the Tribunal accepts that the applicant is a Bangladesh citizen and has assessed his claims against Bangladesh as his country of nationality and as his receiving country.
The applicant’s background
The applicant gave evidence to the Tribunal at hearing that his grandparents and parents were all born in Bangladesh and that he is from [Village 1], a rural village in Comilla District. The applicant told the Tribunal that his parents are still residing in [Village 1], that a younger brother has been in [Country 1] for the past 10 to 15 years and that a younger sister is married and living with her husband in [Village 2], near the applicant’s village. The applicant told the Tribunal that his paternal uncles and maternal aunts are also living near his parents. He stated that his mother is a housewife and his father used to run a fish business but no longer works.
The applicant gave evidence that he completed Year [level] in Bangladesh and then studied for three months at a college and did not work at all in Bangladesh. He stated that he had left Bangladesh by air to [Country 2] on a valid passport in his own name that was issued in Comilla District. He was [age] or [age] years of age when he left Bangladesh. He then spent some five to six years in [Country 2] before travelling to Australia by boat.
The applicant told the Tribunal that he has been diagnosed with GORD and sees his GP about this condition and takes medication for the condition. He stated that he sometimes works in Australia and sometimes doesn’t and that he has not been working recently as he has mental stress and depression. He has spoken to his GP about this but does not want to see a counsellor because he doesn’t want to be asked questions about things.
The Tribunal accepts the applicant is a Sunni Muslim from [Village 1], Comilla District, Chittagong Division, Bangladesh. The Tribunal accepts the above information as correct regarding the applicant’s family composition, education and employment history and health concerns.
Claims relating to political activities and imputed political opinion
The Tribunal is aware of the importance of adopting a reasonable approach to the finding of credibility. The Tribunal is mindful of the caution sounded by Foster J in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’ (at 482).
The Tribunal is mindful that, where an applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.[1] However, the benefit of the doubt should only be given when an examiner is satisfied as to the applicant’s general credibility; the applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 2019, para 196.
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 2019, para 203.
Where the Tribunal makes an adverse finding in relation to a material claim but is unable to make that finding with confidence, it must proceed to assess the claim on the basis it might possibly be true (MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and is not required to have any rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J).
In this matter, the Tribunal was provided a psychological report prepared by [Dr J], consultant clinical psychologist, dated 9 December 2022. The letter noted that [Dr J] had had access to a mental health care plan for the applicant dated 30 November 2022 and that the applicant had attended for psychological assessment in relation to a migration matter and had reported experiencing anxiety and depression prior to and after arriving in Australia. Following testing, [Dr J] assessed that the applicant meets the criteria for anxiety and depression and that, ‘in the preferred scenario that [the applicant] can live in Australia’, his condition would be expected to improve significantly over time with treatment.
The Tribunal was also provided a GP referral to [Dr J] dated 16 August 2023, referring the applicant for opinion and management. The referral notes occasional anxiety attacks with unknown triggers and that a referral had been made for a mental health care plan. The applicant was stated to be prescribed Advantan cream and Esomeprazole. The Tribunal noted that these medications are for physical health complaints and are not prescribed for mental health conditions.
The Tribunal has had regard to the above information and guidelines when assessing the claims raised by the applicant. The Tribunal is, further, mindful of the significant time that has passed since the applicant first arrived in Australia and the impact this passage of time may have had on the applicant’s ability to clearly recount his claimed experiences in Bangladesh. In assessing the evidence before it, the Tribunal also accepted that the applicant’s father (who gave evidence as a witness) has had limited education and is claimed to be illiterate, a claim that the Tribunal is prepared to accept.
The applicant claims that his uncle is a JI supporter who ran for election as a local candidate in Bangladesh and that the applicant was involved in his uncle’s campaign. The Tribunal spoke at some length to the applicant and to the applicant’s father about the applicant’s uncle’s political involvement and is prepared to accept that the applicant’s uncle ran in political campaigns when the applicant was in his teenage years and prior to him leaving Bangladesh for [Country 2]. The Tribunal is prepared to accept that the applicant’s uncle was aligned with JI and that the applicant’s uncle was, because of this, perceived to be aligned with the BNP in the elections he was involved in.
The Tribunal also considers it plausible that the applicant’s family held political views consistent with the uncle’s political affiliation and that the applicant may have been involved peripherally in his uncle’s campaign. The Tribunal accepts as plausible that the applicant put up posters for his uncle’s campaigns and that his role in his uncle’s campaigns would have been known to people in his local area. The Tribunal also accepts as plausible that the applicant’s father had been harassed by AL supporters as a result of the family’s political views.
However, the Tribunal had more difficulty accepting the claims of the applicant about his involvement with [Mr D] and a claimed incident in which he and [Mr D] were attacked, for the following reasons.
Firstly, the applicant gave vague information about [Mr D] at the hearing that was lacking in detail and in credibility. For example, despite giving evidence that [Mr D] lived next to his house and that they spent time together regularly, the applicant could not remember whether he ever visited [Mr D]’s house, couldn’t clarify how much time he had spent with [Mr D], couldn’t remember what they had done together apart from ‘discussions’, couldn’t remember whether [Mr D] had ever met any of his family members, couldn’t remember [Mr D]’s height or weight and was unable to describe him apart from describing ‘black skin like me’. The applicant’s inability to give any details of his claimed friend [Mr D] leads the Tribunal to not accept that the applicant had a friend [Mr D] who was involved in his uncle’s campaign, on the basis that the Tribunal would expect the applicant would be able to provide some level of detail about a friend he claims to have spent some significant amount of time with. The Tribunal does not accept the applicant had a friend, [Mr D], who fled Bangladesh, or who was attacked and killed by AL supporters after later returning to Bangladesh. The provision by the applicant of a [Village 2] Union Council letter dated 1 March 2013, which refers to [Mr D], does not alleviate the concerns of the Tribunal about the applicant’s evidence about his claimed friend and the Tribunal, in consequence, does not accept this as a genuine document.
Secondly, the applicant gave inconsistent and irreconcilable evidence about where he was living in the months leading up to his departure from Bangladesh. Early in the hearing, the applicant was asked by the Tribunal where he had lived in Bangladesh and he gave evidence that he was living with his parents prior to leaving Bangladesh and that he did not live in any other areas of Bangladesh, apart from visiting places for one to two days. Later in the hearing when asked how he had left Bangladesh, he gave evidence that he had been in Dhaka for a few days and had left through Dhaka airport. In contrast, later in the hearing when giving evidence about the claimed incident at the club, the applicant told the Tribunal that the incident had occurred two to three months before he left Bangladesh and that he had fled to Dhaka for that time. He stated he was unable to remember where he lived in Dhaka or whether he had paid rent at the claimed accommodation. When the inconsistencies in the time line were put to the applicant at hearing, he stated he had not understood the question and he meant ‘this’. This explanation did not alleviate the concerns the Tribunal had about the applicant’s differing evidence about his movements in the period leading up to his departure from Bangladesh.
Thirdly, the applicant has provided a copy of his uncle’s campaign poster in which the applicant is described as a ‘Prominent social worker, Ward No. [number], [Village 1]’ with the applicant’s photo on the poster. The applicant’s evidence to the Tribunal at the hearing was that he had had no formal role in JI, although described himself during the hearing variously as ‘on a list’ with JI and as a member of BNP. The applicant was unable to provide any information to the Tribunal about JI’s background or policies and the Tribunal did not accept the applicant was involved in a more than superficial way in supporting his uncle’s campaign. The Tribunal considers it implausible that the applicant would be identified on a campaign poster if his role was limited to supporting his uncle by putting posters up as described to the Tribunal and given he was only in his mid-teens when his uncle campaigned. Country information discussed with the applicant at hearing notes that document fraud is widespread in Bangladesh.[3] The prevalence of document fraud and the implausibility of the applicant being identified as having a formal role in his uncle’s campaign cause the Tribunal significant doubt about the genuineness of this document.
[3] UK Home Office, Country Policy and Information Note, Bangladesh: Documentation, March 2020 at 5.2.1
Further, the campaign poster also has a photo of [Mr D] and identifies him on the poster as ‘General Secretary, Bangladesh Islami Chhatashibir, No 1 [Village 2] Union Council’. Because the Tribunal does not accept the applicant had a friend [Mr D], it does not accept the campaign poster would identify [Mr D] as having a formal role in the applicant’s uncle’s campaign. Because of the above concerns about the validity of the poster, the Tribunal does not accept the campaign poster as a genuine document and does not accept that the applicant was identified in campaign posters as being informally or formally aligned with his uncle’s campaign.
Because the Tribunal does not accept the applicant had a friend [Mr D], and because of the concerns set out above about the applicant’s varying evidence about where he was living before leaving Bangladesh, the Tribunal also does not accept the applicant and [Mr D] were outside a club and were attacked. The Tribunal does not accept that people associated with AL came and attempted to assault the applicant and a friend, or physically assaulted the applicant and a friend. The Tribunal does not accept the applicant fled his home village after an attack or that the applicant fled to Dhaka before he left Bangladesh.
The applicant also claims that he was threatened by AL supporters while living in [Country 2]. The applicant gave evidence to the Tribunal at hearing that there were AL supporters where he was living in [Country 2] and that he often had arguments with them. One in particular, [Mr I], used to argue with the applicant and threaten him. The applicant then left ‘that place’ and took another place but [Mr I] threatened him there too. As to how he knew [Mr I], the applicant claimed that he was introduced to him in [Country 2] and that he had told [Mr I] his uncle was a candidate in the election and was a JI supporter. As discussed with the applicant at hearing, the Tribunal considered it implausible that, if the applicant had fled Bangladesh in the circumstances he claims, he would disclose to an AL supporter his political affiliation. Nor does the Tribunal consider it plausible that, if the applicant moved away to avoid the claimed threats, [Mr I] would manage to find the applicant in a new location. The Tribunal does not accept the applicant was threatened in [Country 2] for his political opinion or imputed political opinion.
The applicant gave evidence to the Tribunal that he has not been politically active or undertaken any activity for JI either in [Country 2] or Australia. However, the Tribunal has accepted that the applicant, as a teenager, was involved in his uncle’s political campaign and that his uncle is a JI member and is therefore perceived to be aligned with the BNP. The Tribunal has also accepted that the applicant’s father was targeted because of the applicant’s uncle’s political activity.
Bangladesh politics has long been dominated by the Awami league (AL) and the Bangladeshi Nationalist Party (BNP) and the relationship between the two is one of longstanding enmity. The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India, while the BNP has been traditionally more broadly accommodating of political Islam, conservative, broadly against relations with India and urban-based.[4]
[4] DFAT Country Information Report Bangladesh, 30 November 2022, 3.65 – 3.66.
Jamaat-e-Islami (JI) is an Islamist political party that was banned from the 2014 elections due to its anti-secular views and which is in alliance with the BNP. People who have claimed to be supporters of JI claim that they have been followed or intimidated by people they allege to be connected to the government, including when overseas, and sources have reported to DFAT that sometimes affiliation with JI is used as a slur.[5] DFAT states that members and supporters of JI keep a low profile and those who do not would be subject to attention from authorities and would face a moderate risk of official discrimination. DFAT is not aware of societal discrimination against members of JI, whose views are often popular in their home communities, but members may experience fewer employment and business opportunities due to the underground nature of their personal and professional networks.[6]
[5] DFAT Country Information Report Bangladesh, 30 November 2022, 3.85 – 3.86.
[6] DFAT Country Information Report Bangladesh, 30 November 2022, 3.89.
The UK Home Office describes the system of governance in Bangladesh as being based on political patronage, with law enforcement agencies politicised in favour of the ruling AL and as being used to suppress and silence the opposition and those affiliated with it, including family members. This occurs particularly at times of heightened political tension, including during election campaigns.[7] The AL is reported to be intolerant of any views in opposition to the government and to have consolidated its power through sustained harassment of the opposition and those perceived to be allied with it.[8] Human Rights Watch states that law enforcement authorities have illegally detained scores of opposition activists, who have been held in secret without being produced before the courts. In most cases, detained individuals remain in custody for weeks or months before being formally arrested or released. Torture in police custody is widely practiced, while other individuals have been disappeared. Many such cases appear to have been politically motived, sometimes targeting the relatives of a political opponent.[9]
[7] UK Home Office, Country Policy and Information Note, Bangladesh: Political parties and affiliation, September 2020, 2.4.4.
[8] UK Home Office, Country Policy and Information Note, Bangladesh: Political parties and affiliation, September 2020, 10.2.1.
[9] UK Home Office, Country Policy and Information Note, Bangladesh: Political parties and affiliation, September 2020, 10.2.3.

DFAT states that security threats in Bangladesh are largely centred around politically motivated violence, including violent clashes between rival groups, particularly ahead of elections and at political rallies.[10] While the 2018 elections were more peaceful than previous elections, this was attributed to systemic oppression the state machinery carried out against the opposition over a ten year period. BNP and JI officials claimed that over 10,500 party activists had been arrested and thousands detained, and accused police and AL activists of attacking their activists and candidates.[11]
[10] DFAT Country Information Report Bangladesh, 30 November 2022, 2.33.
[11] UK Home Office, Country Policy and Information Note, Bangladesh: political parties and affiliation, September 2020, 8.2.1 – 8.2.3.
The Tribunal finds that, if he returns to Bangladesh now or in the reasonably foreseeable future, the applicant would return to reside in his home district, on the basis that his parents, sister and extended family all reside in the district and on the basis that he has no ties to any other area of Bangladesh. The Tribunal accepts that, given the applicant’s family is an extended family group of the applicant’s uncle who is a JI supporter, and given the applicant’s previous involvement in his uncle’s campaign, the applicant would be imputed as anti-AL in his local area. While the applicant’s uncle’s campaigns are some significant time ago, the Tribunal considers it plausible that the family would continue to be imputed as anti-AL by people in their local area. Security threats, including violent clashes between rival political groups, are heightened ahead of elections. Country information also indicates that in some circumstances, family members have been targeted. Given elections are due to be held in 2024, and given election-related violence increases at such times, the Tribunal accepts that the chance is more than remote that the applicant would face harm in his local area from JI supporters because of his imputed political opinion. The Tribunal accepts that the harm feared by the applicant in his local area, for reasons of his imputed political opinion as being against the AL, includes significant physical harassment and significant physical ill-treatment and is serious harm within the meaning of s 5J(5).
However, the Tribunal is not satisfied that the applicant faces such harm outside of his immediate local area, on the basis that he himself is not politically active and would not be identified as a family member of his politically-active uncle outside of areas where he and his family are known. The Tribunal is not satisfied the applicant faces a real chance of serious harm across all areas of Bangladesh and, for this reason, is not satisfied that the applicant is owed protection as a ‘refugee’ for reasons of his political opinion or imputed political opinion or as a member of the particular social group of individuals whose family members are politically active or are perceived to be against the AL.
Claims relating to health and mental health
The applicant provided medical documentation to the Tribunal indicating that, in late 2022, he sought referral to a psychologist through a mental health care plan. The psychologist he attended has diagnosed him with depression, although it appears the applicant has not been prescribed any medication for this condition. The applicant has also given evidence, which the Tribunal has accepted, that he suffers from GORD for which he receives medication.
Health care in Bangladesh is generally poor, although some expensive private clinics offer better quality services. Health care issues include low staffing levels, lack of funding, mismanagement and corruption, back of facilities, high out-of-pocket costs and high levels of poverty. Services in rural areas are generally limited or non-existent.[12]
[12] DFAT Country Information Report Bangladesh, 30 November 2022, 2.15.
Mental heath facilities are inadequate to meet demand and there is limited funding and mental health workers. Most individuals experiencing depression and anxiety are not receiving treatment for their illness, there are an inadequate number of psychiatrists and basic psychiatric medications are generally unavailable. There is strong stigma associated with mental health disorders in Bangladesh that can lead to ostracism from families and communities, and some people consider the mentally unwell as ‘mad’ or ‘cursed’. There are reports of shackling, chaining, locking up or hiding away by family members due to shame caused by their mental illness.[13]
[13] DFAT Country Information Report Bangladesh, 30 November 2022, 2.20 – 2.24.
The Tribunal accepts that, if he returns to Bangladesh now or in the reasonably foreseeable future, the applicant’s mental health condition may be exacerbated by the stress of return and that he would continue to experience symptoms of GORD. However, while health and mental health services in Bangladesh are inadequate, the Tribunal is not satisfied the applicant faces serious harm within the meaning of s 5J(5) because of his mental health and physical health concerns. Nor does the Tribunal accept that any stigma faced by the applicant would meet the threshold of serious harm, having regard to the instances of serious harm set out in s 5J(5). The Tribunal finds that any risk of the applicant being shackled, chained, locked up or hidden away by family members is remote. The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Bangladesh now or in the reasonably foreseeable future, because of his health and mental health concerns.
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk the applicant would face significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
For the reasons set out above, the Tribunal finds that if he returns to his home area in Bangladesh, the applicant would face a range of harm from AL supporters because of his uncle’s previous campaigns and because his family is imputed as anti-AL as a result. The Tribunal is satisfied that the harm feared by the applicant includes arbitrary deprivation of life, torture and cruel or inhuman treatment or punishment and is significant harm as defined in s 36(2A).
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Bangladesh is classified by the World Bank as a lower-middle income country with strong GDP growth over several years despite the COVID-19 pandemic. About half of the population is employed in the agricultural sector, and the services sector and garment industry also play important roles in the economy. DFAT states that the economy recovered strongly from the pandemic, but that high inflation has caused significant pressure on Bangladeshis, particularly the poor.[14]
[14] DFAT Country Information Report Bangladesh, 30 November 2022, 2.5 – 2.8.
The Constitution provides a right to freedom of movement throughout Bangladesh and to reside and settle in any place within Bangladesh. There is no impediment to internal movement within Bangladesh and DFAT states that Bangladeshis can and do relocate for a variety of reasons, with major cities such as Dhaka offering greater opportunities for employment.[15]
[15] DFAT Country Information Report Bangladesh, 30 November 2022, 5.18.
Two thousand people move to Dhaka per day and the city is struggling with the pressure of supporting them. There are 5,000 slums in Dhaka which house 4 million people, who face overcrowding, poor sanitation and lack of access to clean water and drainage.[16] Dhaka hosts one of the world’s largest populations of climate migrants, with nearly 700,000 Bangladeshis displaced on average each year by natural disasters. Dhaka is one of the world’s fastest-growing and most densely populated cities and is fraught with extreme poverty, public health hazards, human trafficking and vulnerability to floods. Rent is extremely high and eviction can occur suddenly. Forty per cent of Dhaka’s residents live in slums where sewage runs freely, electricity is largely tapped from the grid, there are insect infestations, dirty water causing skin and gastrointestinal diseases and a high infant mortality rate.[17]
[16] PreventionWeb, ‘Stability eludes climate refugees in Bangladesh’s sinking cities’, S Illius, 25 January 2023 at
[17] National Geographic, ‘Climate change creates a new migration crisis for Bangladesh’, T McDonnell, 25 January 2019 at
The Tribunal has considered whether it is reasonable for the applicant to relocate internally, for example to Dhaka. The Tribunal accepts that the applicant does not have any family members in Dhaka upon which he could rely and does not have accommodation in Dhaka. He has been unable to work recently because of his mental health concerns and the Tribunal accepts that the applicant’s ongoing work capacity is likely to be affected by the stress of returning to Bangladesh and that he would be forced into slum conditions. Access to treatment for his medical condition would be limited and would be expensive. Given the applicant’s particular circumstances, the Tribunal finds that it would not be reasonable, for the applicant to relocate to another area of Bangladesh such as Dhaka. Given the largescale movement of Bangladesh citizens into Dhaka because of environmental factors, nor does the Tribunal consider it would be reasonable for the application to relocate to another area of Bangladesh outside of Dhaka.
In 2020, the UK Home Office reported that security forces, particularly the police and RAB, commit abuses with impunity, including torture, arbitrary arrests, incommunicado detention, enforced disappearances and extra-judicial killings. Senior members, leaders and active members of opposition parties and those who actively oppose, or are perceived to actively oppose, the ruling party are particularly vulnerable. Torture and ill-treatment is endemic and there is reportedly an assumption that, if a person is arrested, they will face torture. Corruption and bribes are prevalent throughout the police and court system and the independence of the judiciary is compromised due to political interference.[18] DFAT similarly states that torture is unlawful but is claimed by human rights groups to be common, particularly by the police, intelligence officers and RAB. Torture is reported to be used to extract confessions and to be most commonly used when a suspect is on remand.[19]
[18] UK Home Office, Country Policy and Information Note, Bangladesh: Actors of protection, 2020, 2.3.4 – 2.3.12.
[19] DFAT Country Information Report, Bangladesh, 30 November 2022, 4.12 – 4.13.
In March 2023, the US Department of State reported that Bangladesh continued to experience significant human rights issues during 2022, which had included unlawful or arbitrary killings including extrajudicial killings, forced disappearances, torture and cruel, inhuman or degrading treatment or punishment by the government, harsh and life-threatening prison conditions, arbitrary arrests and detentions and serious problems with the independence of the judiciary. Numerous reports stated that the government and its agents had committed arbitrary or unlawful killings and the government had taken few measures to identify, investigate, prosecute and punish officials and security force members who committed human rights abuses or engaged in corruption. Law enforcement raids occurred throughout 2022 and suspicious deaths had occurred during some raids. Security force members frequently denied their role in such deaths and claimed that accomplices of a suspect had fired on police and they had returned fire. In contrast, human rights organisations claimed that many of these crossfire incidents constituted extrajudicial killings, and claimed that in some cases suspects were detained, interrogated and tortured, and were brought back to the scene of the original arrest and executed.[20]
[20] US Department of State, 2022 Country Reports on Human Rights Practices, Bangladesh, 20 March 2023 at
The US Department of State further noted that human rights groups and media had reported during 2022 on disappearances and kidnappings, allegedly committed by security services. The government made limited efforts to prevent, investigate or punish such acts. In January 2022, Human Rights Watch released a statement condemning the government’s dismissal of criticism in response to allegations of rampant enforced disappearances, while Freedom House noted a range of human rights abuses by law enforcement agencies had continued unabated. Despite constitutional prohibitions against torture, local and international human rights organisations and media had reported that security forces employed torture and cruel, inhuman or degrading treatment or punishment. Human rights organisations alleged that torture had occurred during remand and that victims who filed cases under the Torture and Custodial (Prevention) Act were harassed and threatened. In June 2022, a joint statement by several human rights organisations condemned acts of torture performed by police and claimed that torture, both physical and mental, had become an institutionalised practice in Bangladesh.[21]
[21] US Department of State, 2022 Country Reports on Human Rights Practices, Bangladesh, 20 March 2023 at
The Bangladesh Police is the country’s primary law enforcement agency. Professionalism varies across the force and while senior officers are relatively well trained and well paid, those in the lower ranks are poorly trained, poorly paid and poorly equipped. Low incomes encourage corruption and solicitation of bribes is common, sometimes to influence outcomes of investigations and sometimes for cause an investigation to occur, or not occur. Police systems are highly bureaucratic, which can lead to slow or ineffective responses to crime. While the national system of policing can be effective, this is not always the case. Most Bangladeshis do not trust the police, given their reputation for corruption and violence. GAN Integrity, a US-based consultancy organisation, has noted that businesses ranked the Bangladesh police as one of the least reliable in the world.[22]
[22] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.1 – 5.5.
The judiciary is based on the British system and comprises a Supreme Court and subordinate courts. Challenges for the judicial system include widespread corruption, political bias, and a large backlog of cases with some taking over 10 years to resolve.[23]
[23] DFAT Country Information Report, Bangladesh, 30 November 2022, 5.6 – 5.10.
Given the level of corruption in the criminal justice system and the involvement of police in torture, killings and violence against citizens, the Tribunal finds that the applicant could not obtain protection from the authorities such that there would not be a real risk he would suffer significant harm.
The Tribunal finds that the risk to the applicant is specific to his circumstances and is not faced by the population generally.
The Tribunal therefore finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk the applicant would face significant harm
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence that the applicant has a right to enter and reside in any country other than Bangladesh and the Tribunal finds that the applicant is not prevented from being owed protection by operation of s 36(3).
DECISION
The Tribunal:
a.remits matter 1909091 (Temporary Protection visa application made on 28 August 2015) with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act; and
b.sets aside the decision in matter 2018221 to refuse the applicant a Safe Haven Enterprise visa application made on 10 September 2020 and substitutes it with a decision that the visa application was not valid.
Tamara Hamilton-Noy
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.
…

[2023] AATA 4196

7 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice