1909453 (Refugee)

1909453 (Refugee) [2024] AATA 2633 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)
CASE NUMBER:  1909453 and 2103560
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:David McCulloch
DATE:14 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
a.affirms the decision not to grant the applicant a protection visa in matter 1909453 (Safe Haven Enterprise visa application made on 12 May 2016); and
b.sets aside the decision in matter 2103560 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 2 November 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 14 June 2024 at 7:20am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined – statutory bar does not apply – first application not invalid, so second application invalid with no jurisdiction to review – fear of harm from former girlfriend’s family and political enforcers – girlfriend’s suicide after parents’ disapproval of their relationship – applicant blamed for death – family assaulted and threatened in applicant’s absence, and father arrested – applicant’s and parents’ moves to other countries – imputed political opinion – applicant’s uncle an active member of one political party and girlfriend’s family well-connected in another – supporter but not member in home country and member in Australia – credibility – inconsistent claims and evidence – no claim about girlfriend in entry interview – long and complex procedural history – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2)(a), (aa), (2A), 65, 48A, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Luu v Renevier (1989) 91 ALR 39
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao‑Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This decision comprises applications for review of two decisions made by a delegate of the Minister for Immigration and Border Protection on 11 December 2017 and 5 March 2021, respectively, to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Bangladesh.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 2013. 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 Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise 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 22 May 2013. 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 Safe Haven Enterprise visa on 12 May 2016 (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 s 5H(2), 36(1B) or (1C), or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 2 November 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 he was not within the class of persons specified in the then Minister’s s 48B Determination.
The first visa application for a Safe Haven Enterprise visa made on 12 May 2016 was refused by the delegate on 11 December 2017. An application for review of that decision was made on 16 April 2019.
The second visa application was refused by a delegate on 5 March 2021. An application for review of that decision was made on 20 March 2021. 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.
The applicant appeared before the Tribunal on 26 February 2024 at 10 am to give evidence and present arguments. The Tribunal conducted a second hearing on 5 June 2024 at 9.30 am. The Tribunal hearings were conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review. The representative attended the hearings.
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. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 30 November 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, he meets the protection criteria. For the following reasons, the Tribunal has concluded that the decision relating to the first visa application under review should be affirmed. The decision relating to the second visa application should be set aside and substituted with a decision that the visa application was not valid.
The applicant’s migration history is extracted from the delegate’s decision record, dated 5 March 2021, noting that it repeats some of the procedural history outlined above:

[Date]/01/2013

Arrived in the vicinity of Ashmore and Cartier Islands, Australia on board Boat

[Codename]. The applicant was taken to Darwin and was placed in detention

21/05/2013 S195A Ministerial intervention outcome – Visa granted

22/05/2013
UJ-449 (Temporary Humanitarian Stay) visa granted, LUD1 29/05/2013; WE‑050

(Bridging Visa E - BVE) granted, LUD 22/11/2013; Released from detention

23/11/2013 Unlawful status until 25/08/2014

18/08/2014
S46A Ministerial intervention outcome – Bar lift, visa application allowed;

S91L Ministerial intervention outcome - Bar lift, visa application allowed

26/08/2014 Multiple BVEs granted, LUD 08/08/2016

01/12/2015
S46A Ministerial intervention outcome – Bar lift to allow XE-790/XD-785

Application

12/05/2016
XD-790 (Safe Haven Enterprise Visa - SHEV) application commenced PRID

235587760

16/06/2016 Associated BVE granted, LUD 05/10/2018

11/12/2017 SHEV application refused PRID 235587760

24//05/2018 SHEV refusal affirmed by the Immigration Assessment Authority (IAA)
PRID 235587760

06/08/2018 DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178,
making the SHEV application under PRID 235587760 invalid

[Date]/08/2018 Judicial review on IAA decision commenced PRID 235587760

05/10/2018 Associated BVE granted (Out of effect)

[Date]/01/2019 Judicial review result – Minister withdraw PRID 235587760

27/03/2019 Re-notification of SHEV refusal advising that applicant could seek merits review
with AAT PRID 235587760

16/04/2020 AAT commenced review of SHEV refusal PRID 235587760

23/10/2020 S91L Ministerial intervention outcome – Bar lift to allow visa application

02/11/2020 SHEV application commenced PRID 580641141

09/11/2020 Associated BVE granted

22/02/2021 SHEV interview conducted

The following information relating to the applicant is apparent from the first application for protection form. The applicant was born on [Date] in [Upazila], Khulna, Bangladesh. He is of Bangladeshi ethnicity, and his religion is Muslim Sunni. The applicant speaks, reads and writes Bengali. He also speaks [Country 1 language] and English. The applicant indicated he has never married or been in a de facto relationship. The applicant’s mother, father, [brothers], and [sisters] all reside in Bangladesh, he is in contact with them ‘by phone one or twice each two months’. From [Birth] to December 2011, the applicant resided in Jhenaidah District, Bangladesh. From December 2011 to December 2012, the applicant resided in [Country 1]. From December 2012 to January 2013, the applicant indicated he resided in [Country 2]. The applicant completed primary school and high school in [Village], Bangladesh, from [Year] to [Year]. From July 2003 to December 2004, the applicant was employed at a [store] in [Village], Bangladesh. From December 2004 to December 2011, the applicant was employed as a farmer in [Village], Bangladesh. From December 2011 to December 2012, the applicant was employed at a [factory].
The same information as indicated above is contained in the application forms in relation to the second application.
The Tribunal notes the following from the record of the Entry Interview with the applicant that took place on 21 January 2013. In the section headed ‘Reasons Not To Return To Country of Nationality’ the applicant is asked what he thinks will happen to him if he returns to his home country. It is recorded that in response the applicant indicates that he has sold everything come to Australia and if he returns he will die of starvation. The applicant is asked if there is anything else he would like to say. The record indicates that the applicant repeats that he has sold everything come to Australia. If he returns it will be a big problem for him. There will not be anyone to look after his family if he returns.
The record also indicates the applicant states that his family was involved with a political group or organisation. The applicant indicates that his uncle is involved with politics. He went for nomination in [Year] and became a member for the local council for the Bangladesh Nationalist Party (BNP). He was a member for ‘5’. His name is [Mr A]. The record provides a box indicating whether the ‘client’ (i.e. applicant) has been a member of a political organisation and the box is not ticked. The box indicating ‘family’ is ticked.
The Departmental record dated 2 May 2013 indicates the following additional claims made by the applicant (not corrected for spelling or grammar):
Basically I came to Australia from [Country 1] for the following reasons.
I used to love a girl from my village in Bangladesh. Her parents were wealthy when compared to my own and this girls parents had a lot of power and influence in my village. I was in a relationship with this girl for 3 years. Her parents did not approve of our relationship and arranged for her to be married to another person. My girlfriend did not accept this arranged marriage because she was in love with me. As a consequence she killed herself to avoid being married this other person.
As a result of her suicide, her brother and father came to my house and assaulted my family. During this assault they also shot one of my brothers in his leg. (I was not home at the time) On this night they threatened my parents and told them that if they brought me to their house (i.e. my girlfriends parents house) that I would be killed.
My girlfriends family were accusing me of murder and blamed me for their daughter’s death/ suicide.
After this incident, with the help of my Uncle, who is a political party member, he helped me to get to [Country 1]. As I was in [Country 1] illegally I had trouble there and was facing possible deportation.
If I go back, there is nothing for me as no one lives in my original village. My family had to move to Calcutta (India) So if I go back to Bangladesh I will either
• be facing a false murder charge and the police will arrest me or
• I will possible be killed by my former girlfriends family.
To this day my family and my Uncle are still receiving threats from my girlfriends parents as a result of her suicide and the police keep asking my parents of my location.
Recently my father was required to go to court on [date].04.13 in relation to my girlfriends death and was arrested when he turned up to the court. He has been in jail since this date as a result of my not being in Bangladesh.
I wanted to add that my former girlfriends Father is the 2nd in charge of the political party called Awami League and has influence to pressure these charges against me and my family.
The applicant provided the following statement of claims dated 11 May 2016 in relation to both applications (not corrected for spelling or grammar):
Entry Interview
Shortly after my arrival in Australia, I was interview (“the Entry Interview”). During the Entry Interview I was asked a number of questions including dates, biodata and my reasons for coming to Australia. I was not made aware before or during the Entry Interview that the information I provided during this interview would be used for the purposes of assessing my claims for protection. As such there are discrepancies between the Entry Interview and the attached application. Please note that the Entry Interview is not correct for the purpose of this protection visa application. I was fearful of telling my claims given that Australia is not a Muslim culture and would not understand the risk to my life.
Background
2.I am a citizen of Bangladesh. I do not have the right to citizenship or a right to reside in any other country.
3.I am Bangladeshi and my religion is Muslim Sunni.
4.I was born on [Date], [Village], [Jinaidah] District of Kulina division, Bangladesh.
5.I currently do not have a copy or the original birth certificate with me in Australia. I will contact my family in Bangladesh and ask them to locate my birth certificate and send to me. They have previously sent by email a copy of my birth certificate in which I then forwarded to Immigration by hand at Darwin detention centre, it was not my email that the birth certificate was sent to. My passport that I used to leave Bangladesh was a fake provided by the agent and was subsequently taken from me after three months when the visa expired. I then remained in [Country 1] for another nine months illegally.
The country to which I fear returning is Bangladesh
6.I fear returning to Bangladesh.
7.My Uncle is an active member of the Bangladesh National Party (BNP), subsequently I am a supporter of the BNP as my whole family supports my Uncle and the BNP.
8.I formed a relationship with a girl named [Ms B] when I was at Secondary school. [Ms B] was the daughter of a very rich and influential man who was associated and supported the Awami league who were in power and who were totally against the BNP and would like to see all BNP members and supporters dead.
9.We had a close sexual intimate relationship for three years and enjoyed each other’s company, I was very attracted to her. My family knew of her as only being a friend who attended the same school and same year level. Her parents did not know of the relationship at all. However, both mine and her friends were aware of our relationship.
10.We would go out together either alone of with our friends to the park, to the cinema and shopping.
11.[Ms B] came from a very strict Muslim family as did I.
12.As our relationship developed we talked about our feelings for reach other and the desire to wed.
13.[Ms B] approached her family and told them that she loved me and wanted to marry me. Her parents did not agree to the marriage given they were a rich and influential family with connections to the Awami league, whereas, I came from a poor working class family whose family member, namely my Uncle is a member of the BNP and as such we all supported BNP therefore are in opposition with the Awami league who is in power.
14.[Ms B] and I would then meet secretly as she had been told that she must not see me again.
15.Her parents discovered we were meeting via neighbours and people in the community who reported on us. So they locked her in the house and beat her for disobeying their orders.
16.As I had not seen her for over a month or heard from her, I sent my Uncle went to their house to speak with their parents. However my uncle was an active member of the Bangladesh Nationalist Part whereas her father was in direct contact to Members of Parliament of the Awami League.
17.My Uncle was dismissed and told to leave that no discussion would be entered into as he is a member of BNP and therefore no such family member of my Uncle namely me who are supporters of the BNP could marry anyone associated with the Awami league.
18.The next day the two families met by coincidence at the market. A physical fight broke out between the two families.
19.I was not in the fight but was in the market as I worked in a shop nearby. Hearing of the fight, I approached though it had finished by the time I arrived.
20.The next day her father and his associates came to our house armed and threatened our family that I must not attempt to see [Ms B] or send anyone to their home. Otherwise they will kill me.
21.Two weeks later [Ms B] met me secretly, but unfortunately her brother had followed her and reported her meeting me.
22.Upon her return home she was badly beaten by her father and brother. I discovered this through her friends.
23.Two days later [Ms B] committed suicide by taking poison.
24.The next day her family members and associates sought revenge by coming to our hut and setting fire to it. It was where we slept, they also beat my father and brother. I was not home as my Uncle had advised me to leave the home and stay with a neighbour as we assumed there would be a fall out from the suicide by her family.
25.They also threatened to shoot and kill my father and brother if my whereabouts were not revealed. They shot my brother in his leg and demanded to know of my whereabouts and ordered to bring me to them otherwise they would kill my family.
26.My family reported the attack to the police, and they counter filed, claiming that my family had killed [Ms B].
27.My Uncle was threatened that I would be killed, the police came to my house in response and demanded that I must report to the police to answer questions as to [Ms B]’s death.
28.My family then advised me that I must leave Bangladesh as I would not have any chance against the powerful contacts that [Ms B]’s father had. My family went in to hiding and contacted an agent to arrange for my escape from Bangladesh.
29.My brother [Mr C] who was shot and now disabled are living at my sister’s home with my mother. My father went to India to escape the threats.
30.There is now a charge against me and my father for murder of an Awami league supporter’s daughter.
What I fear may happen to me, by who and why, if I return to Bangladesh
31.I fear I will be killed by the police or the family of [Ms B] or their contacts if I return to Bangladesh.
32.I will be killed as they blame me for the death of [Ms B] and I am a supporter and a family member of an active member of the BNP.
33.The father of [Ms B] is an influential and rich person who using his contacts with the Awami League who is in power has falsely charged me of murder.
34.I believe they will claim that I and my family murdered their daughter because we are connected with my Uncle who is a BNP member and [Ms B] was the daughter of an influential person who has contacts with the Awami league.
35.I cannot modify my behaviour or change my identity to avoid detection by the family.
36.I am at risk of being found and killed in all areas of Bangladesh due to the contacts and influence that [Ms B]’s father has with the Government and police.
Why I think the authorities of Bangladesh cannot or will not protect me if I were to go back to that country
37.My father and I are at risk of being killed should we return to Bangladesh, the court matter is only an excuse to get us back to the country so that the family can have us killed.
38.The police are corrupt, [Ms B]’s father is very influential, and there will be no investigation or any way to clear my name.
39.The police could even kill me or hand me over to [Ms B]’s family.
40.The Awami league is in power so they have the control, as we are from a poor family and my Uncle was involved with the BNP party we will not be believed and this will be an excuse to kill us. We have no power and no support and subsequently
41.My Uncle’s house was recently destroyed, we suspect it was done so by the family of [Ms B] or their contacts. It was filmed and is on [Social media].
42.There were other houses burnt and my Uncle has been falsely blamed for the acts, he is now in hiding..
Why I think relocation to another area in my country would still befall me to the same harm
43.I cannot relocate to any other area of Bangladesh as once my whereabouts are discovered I will be killed.
44.It will be easily discovered and the news spread should I return and where I will be living.
45.I would not stay in [Country 1] as I was living thee illegally and should my presence be discovered then I would have been deported back to Bangladesh where I would have been killed as I have explained above.
46.I cannot go and live in India legally.

In addition to his statement, the applicant provided four various photographs depicting injured people in support of his claims. Submissions indicate that these photographs show injuries to the applicant’s family from the attack referred to from [Ms B]’s family.
Submissions on behalf of the applicant to the Department with respect to both applications indicated that the relationship between [Ms B] and the applicant lasted for approximately 3 years from around 2008 until 2011. The submission indicates that it was in mid‑2011 when [Ms B]’s family found out about the relationship and her father locked her inside her house. She was rarely allowed to leave and prohibited from seeing the applicant. A few months later, in around November 2011, [Ms B] committed suicide. The next evening associates of [Ms B]’s family went to the applicant’s family home and demanded to see the applicant. The applicant was not there because he had learned of the suicide that afternoon and knew there would be a fallout. He was staying at his uncle’s home. [Ms B]’s family and friends beat the applicant’s mother and father and shot his brother. Photographs of these injuries are referred to. The applicant’s family reported the issue to police but [Ms B]’s family then accused the applicant and his family of murdering [Ms B]. The night of the attack the applicant’s uncle took him to another village where he lived in hiding for two weeks while his uncle made arrangements for him to flee the country. The applicant spent one year in [Country 1] before coming to Australia. The applicant’s father fled to India.
The submission dated 4 September 2017 to the Department indicates that the applicant’s persecution is based on his actual or imputed political opinion. This is based on the applicant being persecuted by [Ms B]’s family and their contacts (including the police) because he is a BNP supporter and his uncle is an active BNP member. It is also indicated that the applicant faces harm based on his membership of a particular social group of people falsely accused of a crime for political reasons.
The submissions provide independent information including relating to human rights and security problems for supporters of political parties in Bangladesh. Significant instability is referred to. Reference is made to control being held by local elites. Reference is made to ‘mastaans’ which are crime syndicates which act with violent impunity to extort and demand loyalty along political divisions. Mastaans frequently acted as enforcers for dominant political groups. It is submitted that the applicant faces a real risk of harm from mastaans acting on behalf of [Ms B]’s father, who is a local elite.
It is submitted that effective protection is not available. It is submitted that the applicant would not be safe anywhere in Bangladesh due to the influence and reach of [Ms B]’s father. It is also submitted that relocation would be unreasonable given lack of connections for the applicant in other parts of Bangladesh. It is also submitted that the complementary protection criteria are met. There would be requisite harm from mastaans, the Bangladesh police or [Ms B]’s father.
At the commencement of the Tribunal hearing on 26 February 2024, further documents were provided as follows:
·a letter from the President and Secretary of the BNP, [Upazila, District], dated [February] 2024 indicating that the applicant is an ‘Active Member’ of the BNP. His contribution to the party is significant and well‑known. The applicant always joins community programs like international mother language day, independence day et cetera. The applicant’s family members are ‘all‑time harassment and confused to the subject’ [sic].
·a letter from the convenor of the BNP, Australia, dated [February] 2024 indicating that the applicant is an active member personally known to the writer since 2013. The applicant always joins community programs like international mother language day, Independence Day of Bangladesh, 1 September party anniversary, 30 May death anniversary, 19 January celebration of birth, and occasional programs.
·Photographs of individuals at an event which is indicated to be the ‘international mother language day celebration 2024’.
INDEPENDENT INFORMATION
The 2022 DFAT Report on Bangladesh provides the following information (original emphasis removed):
RECENT HISTORY
2.1 The United Kingdom partitioned its former colonial territory into the separate states of India and Pakistan in 1947. Pakistan was intended to be a home for Muslims and was divided into East Pakistan and West Pakistan. Tensions about language and identity led to civil war in 1971 and Pakistan split into Bangladesh (formerly East Pakistan) and Pakistan (formerly West Pakistan).
2.2 The Awami League (AL) governed the new country for the first few years on a platform of Bengali nationalism. Its President, Sheikh Mujibur Rahman (the father of current Prime Minister Sheikh Hasina), was killed in a military coup in 1975. Decades of military rule followed until democracy was restored in the early 1990s.
2.3 The Bangladeshi Nationalist Party (BNP) won the 1991 election under Prime Minister Khaleda Zia (widow of former president Ziaur Rahman, who was assassinated in 1981). Power alternated between the BNP and the AL between 1991 and 2006 with Bangladeshi politics being dominated by political violence and the rivalry between Zia and Hasina. After a brief period of caretaker/military rule, the December 2008 election was won by the AL, led by current Prime Minister Hasina, which has been in power ever since.[1]
[1] DFAT, Country Information Report – Bangladesh, 30 November 2022, p. 6.
[…]
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. 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.
3.70 Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher‑profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.[2]
[2] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 20-21.
[…]
Awami League (AL)
3.71 The Awami League (AL) was established in 1949, with Mujibur Rahman, the father of current Prime Minister Sheikh Hasina, playing a key role. It has been in power since 2009.
3.72 At the top of the party is the Central Committee, known as the Presidium. There are 15 members of this committee, including the Prime Minister. The Presidium is part of an 81‑person Central Working Party and is supported by an advisory committee of technical advisers. Each district and upazila has its own committee and people join political auxiliary organisations and rise up through the ranks.
3.73 The AL has made efforts in recent years to increase social inclusion, including through the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they had experienced less discrimination and violence under the AL in its recent terms (compared to earlier periods) and less discrimination and violence than when the (now opposition) Bangladeshi Nationalist Party (BNP) was in power.
3.74 Internal party violence has been reported in the AL, including in the lead-up to the 2018 election, and during sub-national elections and student organisation elections. This violence is usually about disputes over candidate pre-selection or internal disputes between business people. While sometimes described as ‘factional’ violence, the ‘factions’ may in fact be personality or patronage-based rather than ideologically based. The party has strong disciplinary policies to deal with rogue candidates that can be activated in such circumstances to expel members from the party.
3.75 The party engages in recruitment activities throughout the year. Recruitment activities often have a festive atmosphere. DFAT considers it unlikely that people would be coerced into membership; there are many benefits to membership, such as political patronage, that mean volunteers are likely to join the party willingly.
3.76 Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence.[3]
[3] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 21-22.
[…]
Bangladeshi Nationalist Party (BNP)
3.77 The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
3.78 The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
3.79 The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
3.80 BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. 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.
3.81 The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
3.82 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 if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.[4]
[4] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 23-24.
[…]
Enforced or involuntary disappearances
4.5 International and local rights groups concur that enforced and involuntary disappearances occur in Bangladesh, and particularly target individuals associated with opposition political parties but may also include journalists or government critics. Disappearances have also been alleged in relation to street protests, such as those protesting about pay and conditions in the garment industry. Disappearances allegedly mostly occur at night, but daytime and public place disappearances are reported. Police officers, often from the Rapid Action Battalion (RAB) and wearing plain clothes, are accused of conducting disappearances. DFAT is aware of claims that the RAB is sometimes ‘hired’ by private individuals to carry out that work. In cases where prisoners are not able to contact their families and friends, these people are assumed to be ‘disappeared’. Arrests can be related to a range of matters, but local sources claim that the Digital Security Act and ICT legislation are commonly used.
4.6 The International Federation for Human Rights (FIDH) said in a statement to the 45th session of the United Nations Human Rights Council that law enforcement agents in Bangladesh often deny the arrest or detention of a disappeared person, and family and friends sometimes only learn of the fate of a person when the matter is heard in court. Families and friends are sometimes also threatened with violence if they attempt to prevent an arrest or make enquiries about the fate of a disappeared person.
4.7 BNP leaders claim that the rate of enforced disappearances increased in the lead-up to the 2018 election. BNP leaders claim that a campaign of disappearances was used to humiliate senior leaders, and to intimidate other BNP members and discourage them from publicly supporting the party.
4.8 In 2019 Bangladesh’s Law Minister claimed that enforced disappearances were not frequent in Bangladesh. He claimed that there was a ‘tendency’ to claim that all missing persons are disappeared and that this was done to ‘malign’ the government.[5]
[5] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 31-32.
[…]
Arbitrary arrest and detention and criminal procedure
4.16 Arrests need to be made on authority of a warrant under the law. In practice there are many exceptions to this rule and widespread police impunity. Arrestees should, as a matter of law, be taken before a magistrate within 24 hours of arrest, but this does not always occur. Bail is available but may mean little in practice; police often arrest people as soon as they are out on bail to begin the entire procedure again.
4.17 BNP activists claim that they have been subject to mass arrests, telling Human Rights Watch in 2021 that 300,000 of their ‘leaders and activists’ were accused in ‘false and fabricated’ cases. See BNP. Arbitrary arrest of other critics of the government has also been reported. See relevant sections on media and journalists, civil society organisations, and protesters.[6]
[6] DFAT, Country Information Report – Bangladesh, 30 November 2022, p. 33.
[…]
TREATMENT OF RETURNEES
Exit and Entry
5.20 The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies (exit control list). The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can also refuse to issue passports but the reasons that might prevent a person from leaving the country are not publicly available. DFAT is aware of people being detained trying to leave Bangladesh, including cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
5.21 The Overseas Employment and Migrants Act (OEMA) 2013 makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed asylum applications, for example) and even those provisions are rarely enforced. It is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted under the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this happening.
5.22 Bangladesh is largely surrounded by India and many land border crossings exist, while only one crossing exists at the border with Myanmar. Some parts of the Bangladeshi border are fenced and some parts are open. Borders are patrolled by both Indian and Bangladeshi forces, who may rebuff attempts at crossing.
5.23 Rohingya need exit permits to leave Bangladesh, including for the purposes of going to third countries for non-asylum migration. In practice, some do leave anyway, sometimes on boats across the Andaman Sea and possibly facilitated through corruption. They sometimes then return to Bangladesh for marriage, for example, and become unable to leave the country for lack of exit permit. Laws are not necessarily applied consistently and different experiences are possible.[7]
[…]
Conditions for Returnees
5.24 It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.25 Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
5.26 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.[8]
[7] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 36-37.
[8] DFAT, Country Information Report – Bangladesh, 30 November 2022, pp. 37.

The Tribunal notes the following recent relevant information contained in the report by the Country of Origin Information Services Section of the Department of Home Affairs, Common Claims – Bangladesh effective from 27 March 2024 (underlining added):
Political Opinion
2024 National Elections
Prime Minister Sheikh Hasina won her fifth term. Bangladesh’s national election took place on 7 January 2024, and the ruling party Awami League won the majority of available seats, 222 out of 299,[9] which gave Sheikh Hasina her fourth continuous term as prime minister and fifth term overall.[10] Sheikh Hasina declared that the election was free and fair shortly after casting her vote when polls opened,[11] but various governments, including the United States, publicly stated it was neither free nor fair.[12] Of the 77 seats not won by the AL, 62 won by independent candidates who are mostly AL members or supporters, and 11 won by the political ally Jatiya Party members.[13] The election turnout was low in comparison to previous elections, only about 40% in 2024 compared to 80% in 2018, for instance.[14] The low turnout was attributed to the election boycott of the main opposition party Bangladesh Nationalist Party (BNP) who demanded the ruling Awami League party reinstate an independent caretaker government to preside the polls but to no avail.[15]
[9] The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923
[10] 'Bangladesh’s Sham Election and the Regression of Democracy in South and Southeast Asia', Joshua Kurlantzick, Council on Foreign Relations, 10 January 2024, 20240208101011; 'Bangladesh election: PM Sheikh Hasina wins fourth term in controversial vote', Ethirajan Anbarasan & Kelly Ng, BBC News, 8 January 2024, 20240108111912; 'Bangladesh's Hasina wins re-election after polls without opposition', The Straits Times, 8 January 2024, 20240109100453
[11] The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923
[12] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845; also see the USDOS website access 27 March 2024
[13] The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923
[14] The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923; others estimated only 28% or less turnout at this election. See 'What Bangladesh’s widely boycotted election reveals about its future', Ali Riaz, Atlantic Council, 18 January 2024, 20240119091416
[15] 'Bangladesh election: PM Sheikh Hasina wins fourth term in controversial vote', Ethirajan Anbarasan & Kelly Ng, BBC News, 8 January 2024, 20240108111912
Political climate in Bangladesh was hostile and sometimes violent leading up to the election. Numerous protests were staged by the main opposition in Bangladesh leading up to the election, particularly from July to October 2023, some peaceful but others turned violent.[16] The BNP claimed that over 20,000 of its members including several members of its highest decision-making body were detained and jailed.[17] Human Rights Watch reported on 1 November 2023 that the opposition claimed nearly 5,000 party leaders and activists were arrested since July 2023 protests,[18] and at least 1,500 opposition members were arrested in the days leading up to the rally on 28 October 2023.[19] Although violence was committed on all sides, Human Rights Watch assessed that the mass arrests ‘appear to reflect orders from police officials to systematically arrest and convict opposition members so that they would be disqualified from participating in the national election.’[20] A rally held on 28 October 2023 turned violent, resulting in nearly 10,000 arrests, 16 deaths, and 5,500 injuries.[21] Some detainees alleged that they were tortured.[22] The UK, Canada and Australia expressed concerns about the repression trend in the country.[23] Overall, the Office of the High Comissions for Human Rights (OHCHR) reported in January 2024 that ‘some 25,000 opposition leaders and supporters were arrested, and 56 killed in election related violence, including alleged torture and deliberate denial of healthcare for political prisoners, excessive use of force by law enforcement authorities, arson, and violence by unidentified groups’, none of which had have been independently investigated.[24]
[16] 'Bangladesh opposition calls for poll boycott as PM Hasina kicks off campaign', Ruma Paul, Reuters, 20 December 2023, 20231221145848; 'Bangladesh: Violent Autocratic Crackdown Ahead of Elections', Human Rights Watch (HRW), 26 November 2023, 20240116115041; 'Bangladesh: key opposition figure jailed after rally turns violent', Guardian (Australia edition), 30 October 2023, 20240208101423; 'Why is the Bangladeshi opposition protesting against Sheikh Hasina’s gov’t?', Al Jazeera, 30 July 2023, 20230731092011
[17] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845
[18] 'Bangladesh: Excessive Force Against Political Protesters', Human Rights Watch (HRW), 2 August 2023, 20230822134241; 'Bangladeshi Police Accused of Conspiring Against Opposition Candidates', VOA News, 17 July 2023, 20230719111332
[19] 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359; also see 'Bangladesh: key opposition figure jailed after rally turns violent', Guardian (Australia edition), 30 October 2023, 20240208101423
[20] 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359
[21] 'Bangladesh election: PM Sheikh Hasina wins fourth term in controversial vote', Ethirajan Anbarasan & Kelly Ng, BBC News, 8 January 2024, 20240108111912; 'Eleven dead, scores hurt in Bangladesh political violence', UCA News (UCAN), 1 November 2023, 20231102090914
[22] 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359
[23] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845
[24] 'Bangladesh: Government must prioritise human rights in its fourth term', OHCHR, 24 January 2024, 20240308132521
Political violence - background
The political process in Bangladesh is marked by violence. A long-standing and intense rivalry persists between the ruling Awami League (AL) party and its political opposition, headed by the Bangladesh Nationalist Party (BNP).[25] Inter-party political violence (mainly between AL and opposition supporters) is ongoing, though historically it is most prevalent in the lead up to national or local elections.[26] In 2021, Odhikar reported that 182 people have been killed and 8558 persons have been injured as a result of political violence.[27] In 2022 alone, at least 121 people were killed and 7,467 were injured in political violence, and a further 276 incidents of internal violence within Awami Leaque and 30 incidents within BNP were recorded.[28] In 2023, 106 killed and 8731 injured due to political violence; of these, 420 incidents of internal violence took place within AL, where 31 persons were killed and 3,123 were injured; 29 incidents of internal violence took place within BNP, where 6 persons were killed and 254 were injured.[29] At least 13 incidents of torture and attacks on minorities reportedly occurred between 4 to 13 January 2024, leaving one person dead and 37 injured across 12 districts, despite the government’s denial.[30]
Student party clashes and intra-party AL violence are the predominant forms of political violence. Competition between rival AL factions and individuals for pre-selection as electoral candidates to gain access to, and influence on, processes and outcomes of lucrative contracts, tenders and appointments to senior party positions, has resulted in the high frequency and intense nature of AL intra-party violence.[31] Disputes between members have the potential to lead to violence, but the extent of such violence would depend on the political and social profile of the disappointed candidate and how much money or followers they have.[32] Criminal activities of leaders and activists associated with AL’s student and youth wings persist.[33]
Treatment of opposition parties and members
Ruling parties use state institutions to attack and repress political opponents. The current AL government has politicised state institutions, making them subservient to its agenda.[34] The police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[35] The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI), with 18 opposition figures arrested or disappeared between January and October 2021, often in conjunction with political demonstrations.[36] The AL government has reportedly not allowed opposition parties to protest and has arrested its leaders.[37] According to the BNP, at least 27,000 BNP workers have been imprisoned, and more than 100,000 BNP workers have been sued on different charges since August 2023.[38] There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019,[39] 2020,[40] 2021,[41] 2022,[42] and 2023.[43]
The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties,[44] using security forces to prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections.[45] The government is unwilling to accept criticism of policies and alter its course, and those critical of the government are often treated unfairly. [46] Excessive use of force by the police and other state actors, including attacking, causing injury and killing opposition activists, among others, has been rampant but has never been investigated by authorities.[47]
The US government imposed sanctions on the RAB. It is estimated that 605 persons have disappeared between 2009 and 2021, with some were dead and a significant number are still missing.[48] While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found.[49] The August 2021 Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances, and human rights organisations in the country assess that the Rapid Action Battalion (RAB) is responsible for more enforced disappearances in Bangladesh than any other unit.[50] Human Rights Watch creates a webpage tracking and profiling the cases of 86 victims in Bangladesh who were forcibly disappeared and who remain missing.[51] On 10 December 2021, the US Treasury Department imposed sanctions under the Global Magnitsky Human Rights Accountability Act on the RAB and several of its current and former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances.[52] Human Rights Watch World Report 2024 states that although extrajudicial killings and enforced disappearances dropped for a period, security force abuses appeared to resume and allegations of torture in custody increased.[53]
Ordinary members of Jamaat-e-Islami (JI)[54] face a low risk of politically motivated violence, though may be harassed or arrested by authorities. In September 2020, six JI leaders who had been accused of damaging the portrait of the founder of Bangladesh, Sheikh Mujibur Rahman, were jailed.[55] On 3 May 2021, police arrested eight leaders and activists of Jamaat-e-Islami (JI) and Islami Chhatra Shibir in Jhikra area of Ullapara under Sirajganj district for holding a secret meeting with the intention of creating sabotage in the area.[56] On 19 May 2021, police arrested 17 and 24 JI leaders and activists in Natore and Kushtia respectively when they carried out the procession to protest Israeli’s actions in Palestine.[57] On 16 May 2022, 49 suspected Jamaat-e-Islami leaders and activists were detained during a secret meeting in city's Terry Bazar area.[58] On 19 October 2022 a Jhenaidah District Judge Court sentenced a local Jamaat-e-Islami leader Muabia Hossain, who was arrested on 22 February 2016, to 17 years in jail in a case filed under the Arms Control Act.[59] The JI party leader Shafiqur Rahman was arrested in December 2022, and released on bail on 11 March 2024 from a high security prison just hours before the Islamic holy month of Ramadan.[60] DFAT assesses that members and supporters of JI who do not keep a low profile would be subject to attention from authorities and thus experience a moderate risk of official discrimination.[61]
Reformist JI leaders and activists have founded a new political party based on a new platform. In May 2020, a number of former ‘reformist’ leaders of JI and activists of its student wing, the Islami Chhatra Shibir, formed a new political party known as ‘Amar Bangladesh Party (My Bangladesh Party or AB Party)’ with a research wing ‘Jana Akhankhar Bangladesh’ (The Bangladesh people aspire for)’.[62] This breakaway group of former JI members, leaders, and activists reportedly professes socially inclusive membership and equal opportunities to women, religious and ethnic minorities and distances itself from the JI party for ‘not apologising for the party’s role during the liberation war and for not taking up pragmatic reforms’.[63] The AB party stresses the principles of ‘equality, human dignity, and social justice’.[64] However, leaders of the newly formed AB party have publicly dismissed any alliance with the major political parties (AL and BNP) for the present but have not ruled out the possibility of a future alliance with the AL if they receive enough political support from the people.[65] The new party has a 222 member strong convening committee that is tasked with drafting the party’s constitution and electing leaders.[66]
[25] 'The Violent Politics of Bangladesh’s 2024 Elections', Pearl Pandya, ACLED, 4 January 2024, 20240105165933
[26] 'The Violent Politics of Bangladesh’s 2024 Elections', Pearl Pandya, ACLED, 4 January 2024, 20240105165933; 'Country Policy and Information Note Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9, 20200928084218
[27] 'Human Rights Report 2021 - Bangladesh', Odhikar, 31 January 2022, p.9, 20220208162240
[28] 'Annual Human Rights Report 2022 Bangladesh', Odhikar, 30 January 2023, p.22, 20230428124107; ASK reported differently, stating 479 incidents of political violence occurred, with 70 deaths and 6,914 injured, whereby some violence occurred among opposing parties, including numerous incidents of intraparty clashes. See '2022 Country Reports on Human Rights Practices: Bangladesh', US Department of State, 20 March 2023, Sect.3, p.30, 20230321160628
[29] 'Annual Human Rights Report 2023 - Bangladesh', Odhikar, 04 January 2024, pp.17-18, 20240326093520
[30] 'Election violence, minorities, and erasure of data', The Daily Star (Bangladesh), 7 February 2024, 20240208102339
[31] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, paras.3.74-3.76, p.22, 20221130110831; 'Country Policy and Information Note Bangladesh: Political parties and affiliation', UK Home Office, 25 September 2020, pp.8-9, 20200928084218
[32] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, paras.3.76, p.22, 20221130110831
[33] 'Annual Human Rights Report 2023 - Bangladesh', Odhikar, 4 January 2024, pp.15-17, 20240326093520; 'Annual Human Rights Report 2022 Bangladesh', Odhikar, 30 January 2023, pp.22-24, 20230428124107; 'Human Rights Report 2021 - Bangladesh', Odhikar, 31 January 2022, pp.20-21, 20220208162240; 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, p.42, 20210209153355
[34] 'BTI 2024 Country Report - Bangladesh', Bertelsmann Stiftung, 19 March 2024, pp.7, 14, 20240320110148; 'Annual Human Rights Report 2022 Bangladesh', Odhikar, 30 January 2023, pp.24-30, 20230428124107; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras.3.94, 5.1, pp. 29, 45, 20190822132438;
[35] 'BTI 2022 Country Report: Bangladesh', Bertelsmann Stiftung, 23 February 2022, p.3, 20220224091853; 'Bangladesh: Stop Reprisals Against Victims, Activists', Human Rights Watch (HRW), 7 April 2022, 20220411160727; 'Cycle of Fear Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh', World Organisation Against Torture (OMCT) and Odhikar, 25 July 2019, p.29, 20190911123050;
[36] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.3.69, p.21, 20221130110831
[37] 'Bangladesh’s Flawed Election Increases Polarization, Risk of Violence', Pierre Prakash, The Diplomat, 10 January 2024, 20240129142631; 'Bangladesh’s Opposition Mobilizes Against the Government', Shafi Md Mostofa, The Diplomat, 1 November 2022, 20221104125134; 'Bangladesh: With Key Leaders Arrested, BNP Supporters Flock To Big Dhaka Rally', Ahammad Foyez, Benar News, 10 December 2022, 20221213143743; 'Bangladesh arrests head of largest Muslim party amid crackdown', Aljazeera, 13 December 2022, 20221215123454
[38] 'The Death of Democracy in Bangladesh', Zarif Faiaz, The Diplomat, 12 January 2024, 20240117094805
[39] 'Annual Human Rights Report 2019 Bangladesh', Odhikar, 8 February 2020, pp.32-37, 20200218104232;
[40] 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, pp.39-44, 20210209153355
[41] 'Human Rights Report 2021 - Bangladesh', Odhikar, 31 January 2022, pp.28-29, 20220208162240
[42] 'Annual Human Rights Report 2022 Bangladesh', Odhikar, 30 January 2023, p.10-21, 20230428124107;
[43] 'Annual Human Rights Report 2023 - Bangladesh', Odhikar, 04 January 2024, pp.7-18, 20240326093520
[44] '2020 Country Reports on Human Rights Practices: Bangladesh', US Department of State, 30 March 2021, Sect.1.c, p.5, 20210331145218; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras.3.66, 3.67, p.25, 20190822132438; 'Human Rights in Asia-Pacific: Review of 2019', Amnesty International, 29 January 2020, p.13, 20200130115738
[45] ‘2021 Country Reports on Human Rights Practices: Bangladesh', US Department of State, 12 April 2022, Sect.1c, pp.6-7, 20220413112829; ‘Countering Jihadist Militancy in Bangladesh’, International Crisis Group, 28 February 2018, p.ii, CIS7B83941374; 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.3.69, p.21, 20221130110831; 'BTI 2020 Country Report Bangladesh', Bertelsmann Stiftung, 1 April 2020, p.7, 20200501092233
[46] 'BTI 2024 Country Report - Bangladesh', Bertelsmann Stiftung, 19 March 2024, p.32, 20240320110148
[47] 'BTI 2024 Country Report - Bangladesh', Bertelsmann Stiftung, 19 March 2024, p.9, 20240320110148
[48] 'BTI 2024 Country Report - Bangladesh', Bertelsmann Stiftung, 19 March 2024, p.12, 20240320110148; 'Human Rights Report 2021 - Bangladesh', Odhikar, 31 January 2022, p.11, 20220208162240; 'Bangladesh: 86 Victims of Enforced Disappearance Still Missing', Human Rights Watch (HRW), 16 August 2021, 20210817084550; ‘Disappearance of justice - Brief information and present status of victims of enforced disappearance’, Asian Federation Against Involuntary Disappearances, 30 January 2018, p.3, CIS7B839411714; ‘Countering Jihadist Militancy in Bangladesh’, International Crisis Group, 28 February 2018, p.16
[49] 'Annual Human Rights Report 2023 - Bangladesh', Odhikar, 4 January 2024, pp.25-28, 20240326093520
[50] 'Bangladesh: 86 Victims of Enforced Disappearance Still Missing', Human Rights Watch (HRW), 16 August 2021, 20210817084550; '“Where No Sun Can Enter”: A Decade of Enforced Disappearances in Bangladesh', Human Rights Watch (HRW), 16 August 2021, 20210817091658
[51] 'Bangladesh: 86 Victims of Enforced Disappearance Still Missing', Human Rights Watch (HRW), 16 August 2021, 20210817084550; 'HRW calls for UN probe, sanctions over Bangladesh 'enforced disappearances'', AFP, France 24, 16 August 2021, 20210817092633
[52] 'Bangladesh: Stop Reprisals Against Victims, Activists', Human Rights Watch (HRW), 7 April 2022, 20220411160727; 'UN: Ban Abusive Bangladesh Unit from Peacekeeping', Human Rights Watch (HRW), 20 January 2022, 20220208111845
[53] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.67, 20240112083455; 'Bangladesh: Stop Reprisals Against Victims, Activists', Human Rights Watch (HRW), 7 April 2022, 20220411160727; 'UN: Ban Abusive Bangladesh Unit from Peacekeeping', Human Rights Watch (HRW), 20 January 2022, 20220208111845
[54] Despite banned from contesting elections and deemed illegal since 2013, Jamaat-e-Islami, the country’s third‑largest political party and was the key ally of the BNP, remains active until now. See 'Bangladesh releases Islamist leader after 15 months', hajil Kumar, Eastern Eye, 12 March 2024, 20240313114135; 'Bangladesh’s Flawed Election Increases Polarization, Risk of Violence', Pierre Prakash, The Diplomat, 10 January 2024, 20240129142631; 'Evidence Contradicts Bangladesh Ruling Party’s Claim of Free and Fair Elections', William Echols, Polygraph.info, 12 January 2024, 20240112130621
[55] 'Six Jamaat leaders jailed for 'vandalising Bangabandhu’s portrait'', Prothom Alo Newspaper, 2 September 2020, 20200903092121
[56] 'Three-Month Human Rights Monitoring Report On Bangladesh', Odhikar, 9 July 2021, p.10, 20210728132042
[57] 'Three-Month Human Rights Monitoring Report On Bangladesh', Odhikar, 9 July 2021, p.10, 20210728132042
[58] '49 suspected Jamaat-Shibir activists arrested in Ctg', Bangladesh Sangbad Sangstha (BSS), 17 May 2022, 20221123165543
[59] 'Jamaat leader gets 17 yrs in jail in arms case', Prothom Alo Newspaper, 19 October 2022, 2022112316523
[60] 'Bangladesh releases Islamist leader after 15 months', hajil Kumar, Eastern Eye, 12 March 2024, 20240313114135;
[61] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.3.89, p.24, 20221130110831
[62] ‘Former Jamaat leader Razzak runs AB Party behind the scenes’, Prothom Alo, 14 May 2020, 20200706143922
[63] ‘Former Jamaat leader Razzak runs AB Party behind the scenes’, Prothom Alo, 14 May 2020, 20200706143922
[64] ‘Jamaat reformists form new party’, Prothom Alo, 3 May 2020, 20200706144641
[65] ‘Former Jamaat leader Razzak runs AB Party behind the scenes’, Prothom Alo, 14 May 2020, 20200706143922
[66] ‘Reformist Jamaat-e-Islami leaders launch new political party’, BDnews24, 2 May 2020, 20200706145010; '80 parties apply for EC registration', The Business Standard, 30 October 2022, 20221219152023
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao‑Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and his claims will be assessed against Bangladesh.
At the end of the first hearing, there were multiple credibility concerns apparent to the Tribunal as to the truth of the applicant’s claims. Given the many credibility concerns and the complex procedural history with multiple applications for review and significant amounts of evidence, the Tribunal determined to write to the applicant after the first hearing setting down those concerns giving the applicant the opportunity to respond to them with the assistance of his representative in writing. The Tribunal foreshadowed that it may conduct a second hearing.
The Tribunal provides below the text of correspondence sent to the applicant outlining the credibility concerns under named headings. The Tribunal in relation to each issue extracts the applicant’s written response to each set of concerns. The Tribunal in each area of concern then provides its comments on the applicant’s response and, where relevant, findings and assessment.
Whereabouts of applicant’s parents after departure from Bangladesh
Written concerns sent to applicant:
In the Tribunal hearing you indicated that soon after you left Bangladesh at the end of 2011, your parents went to Calcutta, India to escape the problems that had arisen in relation to the death of [Ms B]. You indicated that they returned to Bangladesh about 6 to 7 months later, but not to their home. Instead, they relocated to another village approximately 50 km away to escape local difficulties.
In contrast, in the delegate interview on 22 February 2021 in relation to the second application you indicated that both your parents went to India in 2011 and have not returned since. Further to this, in the delegate interview on 27 August 2017, in relation to the first application, you said that your father lived in Bangladesh but visits India from time to time.
Evidence of your mother going to India in 2011 and not returning since is also inconsistent with evidence in the written claims as part of your first application for the protection visa that your mother lives with your disabled brother and sister in Bangladesh, while your father left for India. The Tribunal seeks comment on these multiple inconsistencies.
The applicant responded in writing as follows:
At present my parents are in Bangladesh.
My parents did leave Bangladesh India following my departure in the end of 2011. They returned to Bangladesh about three years later in 2015. They currently live about 50 km away from our original dwelling.
Given this explanation, the applicant was clearly not being truthful when he told the delegate in February 2021 that both his parents went to India in 2011 and have not returned since. The whereabouts of the applicant’s parents is considered would be well-known to the applicant and not a matter that could be readily confused or misstated. The lack of truth in relation to this issue creates overall credibility issues in relation to the applicant.
Claims in terms of the applicant’s father being wanted by authorities in relation to the circumstances of the death of [Ms B]
Written concerns sent to applicant:
In the hearing you claimed that yourself, your father and one of your brothers are wanted in Bangladesh by authorities as a result of issues relating to the death of [Ms B]. You indicated that authorities have not found your father because they do not know where he is. As indicated, you gave evidence that both parents have moved to a village about 50 km from the family home and you confirmed that your father has not been detected by authorities because he is in hiding there.
In contrast, in a record of your revised claims of protection made by the Department on 2 May 2013 you outline claims made for the first time about harm suffered as a result of circumstances surrounding the death of [Ms B]. In those claims you say that [in] April 2013 your father was required in India to go to court in relation to the death of [Ms B]. You indicate that he has been in jail since.
This is significantly inconsistent with claims made in the hearing that your father has not been found by authorities in Bangladesh in relation to issues surrounding the death of [Ms B]. The Tribunal seeks your comment.
The applicant responded in writing as follows:
At the Department’s interview in 2013, I mentioned that my father was required to go to India following the death of [Ms B] as he would otherwise will [sic] face jail term in Bangladesh. I believe due to interpretation issue the answers were put in a different way.
The Tribunal has difficulty accepting that the indication by the applicant in the interview that his father might face jail in Bangladesh could be misinterpreted as indicating that his father had to go to court in relation to the issue and that he has been in jail since.
The inconsistency is adverse to the applicant’s credibility.
BNP activity and party membership in Bangladesh
Written concerns sent to applicant:
In the hearing you indicated that from the age of [age range] you regularly attended BNP activities with your uncle who was significantly involved in the party. You indicated that you attended meetings of the party and processions and gatherings. You indicated that you became a member of the party in 2010.
In terms of you being a member of the BNP, in the Departmental record of the Entry interview that took place on 21 January 2013 you indicate that your ‘family’ has been a member of a political organisation, but it appears from the record that you do not indicate that you yourself were a member. In this respect, the record of interview ticks the box in relation to ‘family’ in terms of political membership but does not tick the box in relation to you, i.e. ‘client’.
Further, in the delegate interview that took place on 27 August 2017 you are asked whether you are a member of the BNP, and you answered that you were a ‘supporter’. You were asked what you mean by ‘supporter’ you answer that your uncle is a member.
Also, in your written claims for protection you refer to being a supporter of a family member who is an ‘active member’ in the BNP. Tellingly, you do not indicate that you are either active in the BNP or a member.
The Tribunal considers that if the truth of the situation is that you had become a member of the BNP, that the record of Entry Interview would record that you, ‘client’, were a member of a political organisation. The Tribunal also considers that, if you had been a member of the party, you would not have said in the delegate interview that it was your uncle who was the member without indicating that you were a member. Instead, you just refer to being a supporter.
The foregoing could suggest that you were never a member of the BNP and, at most supported party in terms of voting for them at elections. The Tribunal seeks your comment.
Applicant’s written response:
I have always been a supporter of the Bangladesh Nationalist Party (BNP). During the course of my interviews I always have maintained my claim being a supporter of the BNP and said that my uncle is a member. I uncle has been an active member of the BNP and a Member of the local Union Council. At the interview, I meant that my uncle a [sic] member of the Union Council.
I maintain my claim that I have always been a supporter of the BNP in Bangladesh.
I obtained BNP membership in Australia from 2014.
The applicant in his written response does not indicate he ever became a member of the BNP in Bangladesh. Thus the applicant has not maintained his evidence in the hearing that he became a member of the BNP in Bangladesh in 2010.
While the Tribunal acknowledges consistency in evidence in terms of the applicant claiming he was a supporter of the BNP and that his uncle was a member, the propensity of the applicant to make claims that are clearly not true is evidenced by his statement in the hearing that he became a member of the BNP in Bangladesh in 2010. This is not a credibility concern that itself leads to an adverse finding but it does buttress more significant concerns and is considered cumulatively in the assessment of the applicant’s credibility.
Harm suffered as a result of BNP activity
Written concerns sent to applicant:
In the hearing, you indicated that in multiple BNP activities you suffered minor physical harm, in terms of stones being thrown at you and facing minor physical assaults.
When the Tribunal asked on how many occasions you suffered physical harm you referred to 6 to 8 times.
The Tribunal considers that if you had suffered minor harm on so many occasions, that details of this would have been made in your detailed written statement accompanying the protection visa applications
The Tribunal seeks a response to the omission of your written claims to make reference to being involved in multiple BNP events at which you suffered physical harm.
Applicant’s written response:
I have suffered injuries as part of my activity for BNP. The injuries were primarily caused by Awami league supporter – namely [Ms B]’s father and brother. I confirm I have suffered minor injuries as opposed to minor harm. My harm is significant as the treats [sic] live, given Awami league in government in Bangladesh.
The Tribunal notes the response but maintains that if the applicant had suffered six to eight instances of physical harm as a result of BNP activity, this would have been included in the applicant’s detailed written claims for protection. Its failure to be included is undermining of the truth of multiple episodes of this harm. Even though the harm may not be major harm, the frequency of physical attacks would be quite relevant to claims for protection.
When the applicant was in the relationship with [Ms B] and the nature of that relationship
Written concerns sent to applicant:
In the Tribunal hearing, you said that you and [Ms B] had met at school but did not form a relationship until about four years after you left school. You indicated that the relationship lasted for about 2½ years. You said that the relationship was not a sexual relationship.
In contrast, in your written claims for protection you say that you formed the relationship with [Ms B] in secondary school (i.e. before [Year]). You also that you had a close sexual relationship for three years.
Your evidence to the delegate at interview in relation to the second application indicates that you got to know [Ms B] in school in [Year] or [Year] and formed a relationship about a year afterwards which lasted for 2 to 3 years.
In contradiction with this, a submission by your representative said that the relationship lasted for three years from around 2008 until 2011.
The Tribunal seeks your comment in relation to the significant differences in evidence as to over what time period the relationship lasted and whether the relationship was a sexual relationship.
Applicant’s written response:
My relationship with [Ms B] was for a period of about three years.
[Ms B] and I went to the same school both the primary and high school. I came to know [Ms B] in [Year]/[Year]. And formed a relationship (non-sexual) about 2-3 years later. However, I was in a committed relationship between 2008 and 2011 and during these three years I had a sexual relationship.
On this explanation, the applicant was not being truthful in the Tribunal hearing in which he said that his relationship with [Ms B] was not a sexual relationship. This and the multiple inconsistencies as to when the applicant was in a romantic relationship with [Ms B] cause the Tribunal to maintain its credibility concerns in relation to this issue and generally.
Fight in the marketplace
Written concerns sent to applicant:
In the hearing, you indicated that you were in the market place when [Ms B]’s family approached you and your family but you ran away and therefore were not involved in the fight itself. In contrast, in your written claims you say you were not there during the fight but arrived after it had ended.
In contradiction again, in the delegate interview in relation to the first application you said you were present with your family when the fight occurred.
The Tribunal seeks your comment in relation to these inconsistencies.
Applicant’s written response:
At the marketplace, I managed to escape and did not suffer any injury. On the same date at night time [Ms B]’s father and brother along with other people attacked our residents. Again, I managed to escape and my father and brother was beaten up.
The explanation that the applicant managed to escape from the fight in the marketplace remains inconsistent with earlier evidence that he arrived at the fight after it ended. The Tribunal maintains credibility issues regarding the applicant’s evidence in relation to this issue.
Injury from [Ms B]’s family to applicant’s elder brother
Written concerns sent to applicant:
In the hearing, you indicated that in the attack by [Ms B]’s family that occurred when they visited your home, that your brother suffered injuries in terms of being hit on the knee and leg as well as on other parts of his body. You confirmed in the hearing these injuries, and showed photographs of a male on a bed with bandages.
In contrast, in your written claims you indicate that in this attack your brother was shot in the leg.
The Tribunal has difficulty accepting that you would not remember the detail of firearm injuries if your brother had been shot in the leg. The Tribunal notes in the hearing it asked multiple questions of you of harm suffered by your family because of the issues surrounding [Ms B] and in response to those multiple questions you made no mention of your brother being shot in the leg.
The Tribunal seeks a response to not indicating in the hearing a firearm injury to your brother’s leg.
Applicant’s written response:
My elder brother was beaten initially and then was shot in the leg. The pictures show the injuries sustained by my elder brother.
The Tribunal maintains concerns regarding the applicant in the hearing giving evidence that his brother had been shot in the leg. This major injury would be very impactful, and the Tribunal considers, if true, it would have been referred to by the applicant in the hearing in response to its questions as to the injuries suffered by his brother.
Failure to make claims in relation to [Ms B] in Entry Interview
Written concerns sent to applicant:
On your arrival to Australia you undertook on 21 January 2013 an Entry Interview. In that interview you are asked as to reasons why you cannot return to Bangladesh and what you think will happen to you. In response, you indicate that you have sold everything to come to Australia and if you return you will die of starvation. You are asked if there is anything else you want to say. You repeat that you have sold everything come to Australia and it will be a big problem if you return. There will not be anyone to look after your family.
Significantly, you failed to make claims now being made that you faced harm in Bangladesh as a result of issues surrounding the suicide of [Ms B] and a false case being lodged against you for being involved in her death.
The Entry Interview is the first opportunity in Australia to explain why should not be returned to Bangladesh. In that context, the Tribunal would consider as your first priority you would articulate claims that you cannot return because of false cases against you and harm from the powerful father of your girlfriend who blame you for his daughter’s death.
The Tribunal seeks an explanation for the significant omission to make mention of these claims in the Entry Interview.
The reference in the Entry Interview to your family not having anyone to look after them if you return, could indicate that key motivation of you for coming to Australia was to earn income that you could send back to your family rather than having genuine fears of harm in Bangladesh.
Applicant’s written response:
I attended interview while I was in detention. I was scared that disclosing my concerns from overseas will cause further harm to my life. I further was not on notice to raise any protection claim. I was advised it will be a formal interview to obtain information for the record purposes.
The Tribunal maintains significant credibility concerns as a result of core claims for protection not being made in this Entry Interview. The Tribunal reiterates its comments made to the applicant in writing that this was the first opportunity for the applicant to articulate to authorities in Australia why he should not be returned to Bangladesh and that his first priority would have been to tell them about the risk of harm from [Ms B]’s family.
This completes the issues raised with the applicant in writing after the first hearing.
The Tribunal deals further with issues relating to the applicant and his family’s BNP activities in both Bangladesh and Australia and the applicant’s intended political involvement on return to Bangladesh canvassed with the applicant in the second hearing.
BNP activities and intended political involvement on return to Bangladesh
In the second hearing, the Tribunal put to the applicant that the letter dated [February] 2024 from the BNP in Bangladesh indicates that the applicant was an ‘Active Member’. The Tribunal noted that this was inconsistent with the written clarification following the first hearing that the applicant was not a member of the party, albeit he was a supporter.
The Tribunal noted that the letter also indicates that the applicant’s parents are suffering harassment impliedly on account of the applicant or on account of their own political involvement. The Tribunal indicated this did not seem to be consistent with the applicant’s prior evidence in the second hearing that since 2011 his parents had been living in hiding in a village away from their home village, and had suffered no difficulties on account of the applicant or as a result of their own political activities.
The applicant indicated in response that he was in Bangladesh a member of the BNP. The Tribunal noted that it been clarified in writing following the first hearing that the applicant was not a member, but he was a supporter. The applicant then indicated that he was a supporter and member are the same thing. The representative clarified that the applicant in Bangladesh was not a member of the party but had been involved through his uncle.

The Tribunal had indicated to the applicant that his failure in later teenage years and adulthood to actually become a member of the BNP could be undermining as to the degree of his commitment to the party. The representative submitted that the applicant had been involved through the activities of his uncle and referred to his youth as an explanation for him not deciding to become a member.
The Tribunal maintains some concerns as to the degree of the applicant’s commitment to the party by not making the decision to become a member of the party later in teenage years or in adulthood when having been previously involved in the party from the age of 12 or 13. Had the applicant been involved and committed to the party from a young age the Tribunal considers that he would likely have become a member as he matured later in his teenage years or at least when he reached adulthood.
The Tribunal has concerns as to the truth of the claims made in the letter from the BNP in Bangladesh dated [February] 2024 in that it incorrectly states that the applicant was an ‘Active Member’ of the party when it has been conceded that the applicant was not a member. The credibility concerns are reinforced by this letter claiming that the applicant’s parents had suffered harassment, when on the applicant’s claims they have been in hiding since 2011.
The Tribunal explored with the applicant in the second hearing the degree of his involvement in the BNP Australia. The applicant indicates that he has maintained significant involvement since 2014. He attends meetings once or twice a month as well as other events to mark various occasions.
The Tribunal put to the applicant in the hearing that it had multiple credibility concerns with the applicant’s claims for protection which had been put to him in writing. They suggested untruthfulness and opportunism on the part of the applicant. The Tribunal put to the applicant that these matters combined with the fact of the applicant not actually deciding to become a member of the BNP in Bangladesh in adulthood could cause the Tribunal to consider that the applicant’s involvement in the BNP Australia has been undertaken for opportunistic reasons to provide the foundation for a protection visa, rather than demonstrating a true commitment to the party and desire to be actively involved in the BNP on return to Bangladesh.
In response, the applicant indicated he was involved in the BNP when he was in Bangladesh and that if he returns he will be definitely subject to harm. He indicated that he faces the potential of assault and jail. The Tribunal put to the applicant the proposition that he is claiming that he is genuinely committed in Australia to the BNP and would wish to continue involvement on return. The applicant agreed with this.
The Tribunal noted to the applicant the claim made that he faced harm on return as a result of his connection with his uncle, who held a council position based on allegiance to the BNP. The applicant confirmed in the hearing his uncle died after he came to Australia in 2011. The Tribunal put to the applicant given his death some time ago it would not appear that there is a current risk to the applicant based on his connection to this individual. The applicant agreed with this.
The Tribunal has credibility concerns for the reasons outlined as to the truth of statements made in the supporting letter provided by the BNP Bangladesh. The Tribunal does not accept that the applicant was a member of the BNP in Bangladesh, although it is prepared to accept he had some involvement in the party through his uncle.
Cumulative assessment and findings
The Tribunal is conscious of the complexity for the applicant given the procedural history in these cases, including multiple applications, interviews and the Tribunal hearings over a number of years. The Tribunal does not expect perfect recollection or perfect consistency of factual circumstances in multiple fora and understands the potential for mistakes and some inconsistencies and deficiencies in claims and evidence.
However, the credibility concerns are multitudinous and include issues relating to core claims for protection. Considering the credibility issues cumulatively, the Tribunal is not satisfied that the applicant is a truthful witness in relation to any of his core claims for protection.
The Tribunal does not accept that the applicant was in a relationship with [Ms B] that was objected to by her family. The Tribunal does not accept that the family of [Ms B] have a vendetta against the applicant and his family as a result of her claimed suicide. The Tribunal does not accept that there has been any encounter between the applicant and his family and [Ms B]’s family or maastans associated with them creating harm to the applicant and/or his family. The Tribunal does not accept that a false case has been made by authorities against the applicant and/or his family alleging their complicity in the death of [Ms B]. The Tribunal does not accept that the applicant’s father has been jailed or is wanted by authorities in relation to circumstances surrounding the death of [Ms B]. The Tribunal does not accept that the applicant’s parents fled to India or had to live away from their home area in Bangladesh as a result of issues relating to the death of [Ms B].
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm from [Ms B]’s family, maastans associated with them or Bangladesh authorities because of the view that the applicant and his family were complicit in the claimed death of [Ms B].
The Tribunal does not accept that the applicant has ever been a member of the BNP in Bangladesh. The Tribunal does accept that the applicant has been a supporter of the BNP and that his uncle was a member and the applicant had some involvement in the party when accompanying his uncle. However, the Tribunal is not satisfied that the applicant has ever faced any serious or significant harm including physical harm as a result of him being a supporter of the BNP or that harm has been inflicted by those associated with the Awami League in connection with the issues associated with the claimed death of [Ms B].
While the Tribunal accepts the applicant’s involvement and membership in the BNP in Australia, the Tribunal does not accept based on the cumulative credibility issues identified that the applicant’s involvement in the BNP Australia has been other than for opportunistic reasons. The Tribunal is not satisfied given all of the evidence that the applicant would have a genuine desire on return to Bangladesh to be involved politically with the BNP or otherwise in a way that would attract the adverse attention of authorities. The Tribunal makes this finding accepting that the independent evidence indicates the potential for difficulties faced by individuals in Bangladesh with significant involvement with the BNP.
The Tribunal is not satisfied that there is a risk of requisite harm to the applicant based on his uncle, having died in 2011, holding a council position based on BNP allegiance.
The Tribunal has taken into account the letter from the BNP Bangladesh dated [February] 2024. Given clearly incorrect claims in the letter that the applicant was an ‘Active Member’ of the BNP in Bangladesh and claims that his parents are being harassed as a result of their political involvement, when in fact it is claimed by the applicant that they have been in hiding since 2011, the Tribunal does not consider that the statement contains accurate information.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Bangladesh as a result of past or future political activity in Bangladesh.
The Tribunal accepts a key reason for the applicant coming to Australia is because of economic difficulties in Bangladesh and better opportunities in Australia. However, economic harm is not harm that is for a refugee criterion reason or that falls within any definition of significant harm for the purpose of the complementary protection criterion.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal:
·affirms the decision not to grant the applicant a protection visa in matter 1909453 (Safe Haven Enterprise visa application made on 12 May 2016); and
·sets aside the decision in matter 2103560 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 2 November 2020 and substitutes it with a decision that the visa application was not valid.
David McCulloch
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 2633

14 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

[Date]/01/2013	Arrived in the vicinity of Ashmore and Cartier Islands, Australia on board Boat [Codename]. The applicant was taken to Darwin and was placed in detention
21/05/2013	S195A Ministerial intervention outcome – Visa granted
22/05/2013	UJ-449 (Temporary Humanitarian Stay) visa granted, LUD1 29/05/2013; WE‑050 (Bridging Visa E - BVE) granted, LUD 22/11/2013; Released from detention
23/11/2013	Unlawful status until 25/08/2014
18/08/2014	S46A Ministerial intervention outcome – Bar lift, visa application allowed; S91L Ministerial intervention outcome - Bar lift, visa application allowed
26/08/2014	Multiple BVEs granted, LUD 08/08/2016
01/12/2015	S46A Ministerial intervention outcome – Bar lift to allow XE-790/XD-785 Application
12/05/2016	XD-790 (Safe Haven Enterprise Visa - SHEV) application commenced PRID 235587760
16/06/2016	Associated BVE granted, LUD 05/10/2018
11/12/2017	SHEV application refused PRID 235587760
24//05/2018	SHEV refusal affirmed by the Immigration Assessment Authority (IAA) PRID 235587760
06/08/2018	DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, making the SHEV application under PRID 235587760 invalid
[Date]/08/2018	Judicial review on IAA decision commenced PRID 235587760
05/10/2018	Associated BVE granted (Out of effect)
[Date]/01/2019	Judicial review result – Minister withdraw PRID 235587760
27/03/2019	Re-notification of SHEV refusal advising that applicant could seek merits review with AAT PRID 235587760
16/04/2020	AAT commenced review of SHEV refusal PRID 235587760
23/10/2020	S91L Ministerial intervention outcome – Bar lift to allow visa application
02/11/2020	SHEV application commenced PRID 580641141
09/11/2020	Associated BVE granted
22/02/2021	SHEV interview conducted