1909551 (Refugee)

[2024] AATA 3424

1909551 (Refugee) [2024] AATA 3424 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  [Applicant name]

aka [Alias][1]

[1] The applicant has provided various spellings of his names, reflecting transliteration from Bengali. He have variously stated that his given name includes [names]. He has from time to time included a family name ‘[name]’.

REPRESENTATIVE:  Mr Monir Hossain (MARN: 0958158)

CASE NUMBERS:  1909551 and 2109778

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Silva

DATE:20 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions[2] not to grant the applicant a protection visa.

[2] Decision of 14 June 2017 refusing to grant the applicant a Temporary Protection visa, and decision of 21 June 2012 refusing to grant the applicant a Safe Haven Enterprise visa.

Statement made on 20 June 2024 at 3:40pm

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh – race – religion – Bengali Muslim – fear of harm from the ruling AL party – a member of the BNP – politically motivated false charges – applicant’s account vague and unsubstantiated – a particular social group – a failed asylum seeker – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 57, 65, 424, 499

Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of Bangladesh. He arrived in Australia by sea at the Territory of Ashmore and Cartier Islands (Ashmore) on [date] January 2013, without documents or authorisation.

2. There are two applications for review before the Tribunal. The first application is for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2017 to refuse to grant the applicant a Temporary Protection (subclass 785) visa (‘TPV’) under s.65 of the Migration Act 1958 (Cth) (the Act). The second application is for review of a decision dated 12 July 2021 to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).

   Procedural history

3. Initial processing as a UMA: Officials of the Department of Home Affairs initially considered the applicant as an unauthorised maritime arrival (UMA), and therefore subject to the bar against UMAs applying for visas under s.46A of the Migration Act 1958 (Cth) (the Act). On 22 March 2013, the Minister lifted the s.195A bar. The applicant was granted UJ449 (Humanitarian Stay) and WE050 (Bridging E) visas, and released from detention.

4. On 11 January 2016, the Minister lifted the s.46A bar and invited the applicant to apply for a protection visa.

   Temporary Protection visa (TPV) application: AAT case number 1909551

5. On 12 April 2016, the applicant lodged a TPV application, pursuant to the 'fast track' provisions of the Act. On 14 June 2017, a delegate of the Minister refused to grant the visa and notified the applicant by email on 14 June 2017. The applicant sought review of this decision by the Immigration Assessment Authority, which on 21 February 2018 affirmed the decision to refuse to grant the visa. [In] March 2018, the applicant applied to the Federal Circuit Court (FCC) for judicial review of the IAA assessment.

6. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447 on 6 August 2018, the applicant was determined not to be an ‘unauthorised maritime arrival’ (as was defined in s.5AA of the Migration Act 1958 (Cth) (the Act)) due to his arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s.5(1)) and the subsequent decision to refuse to grant him a TPV was not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division (MRD) of the Tribunal under s 411. On 12 December 2018, the Minister withdrew from the judicial review.

7. On 23 March 2019, the Department re-notified the refusal decision of 14 June 2017. On 16 April 2019, the applicant lodged an application for review with the Tribunal.  This is AAT case no.1909551. 

   Safe Haven Enterprise visa (SHEV) application: AAT case number 2109778

8. On 8 October 2020, the Department wrote to the applicant inviting him to lodge a valid application for a visa, within 7 working days. (The letter stated that the Minister had made a determination that s.91K did not apply to an application for a visa made within 7 working days; and that the Minister had also lifted the s.48A bar which would have prevented him from making a further protection visa application onshore following a protection visa refusal or cancellation. In late 2021, the Full Federal Court handed down the judgment in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20) which found that the s.91K was not applicable in these circumstances. This means that the Minister erred in purporting to lift the s.91K bar, but this has no practical effect on the applicant's lodgement of a valid further protection visa application as the Minister had in fact lifted the bar.)

9. On 15 October 2020, the applicant applied for a SHEV visa. On 12 July 2021, a delegate of the Minister refused to grant the visa.

10. On 1 August 2021, the applicant applied to the Tribunal for review of that decision. This is AAT case no. 2109778.

11. Therefore, the Tribunal has before it two valid applications for review.

    Combined applications

12. Section 427(2) of the Act states that the Tribunal must combine the reviews of two or more Part-7 reviewable decisions made in respect of the same non-citizen. The Tribunal notes the practical benefit of doing so in this particular case, as the factual and legal issues in both the TPV and SHEV applications overlap significantly.

13. The Tribunal wrote to the applicant on 23 September 2023, advising him of its intention to combine the two applications and inviting his proposal. Although he did not reply directly, his earlier submission of 20 September 2023 includes reference to both AAT case numbers, indicating his tacit agreement that the cases be combined.

    Outcomes

14. For the following reasons, the Tribunal has concluded that the decisions under review – the decision to refuse to grant the applicant a SHEV subclass 790 visa and the decision to refuse to grant him a TPV subclass 785 visa - should both be affirmed.

    CRITERIA FOR A PROTECTION VISA

1. The issue in this case is whether the applicant meets the refugee criterion set out in s.36(2)(a), and if not, whether he is entitled to complementary protection under s.36(2)(aa). The criteria are identical in relation to both the TPV subclass 785 and SHEV subclass 790 visas.

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

3. 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.

4. 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 themself 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).

5. 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.  

6. 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

7. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

8. Excerpts from the relevant law are at Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

9. The applicant claims to have been involved in the opposition Bangladesh Nationalist Party (BNP), to have become a party member in 2006, and to have helped campaign in the lead-up to the December 2008 parliamentary elections.

10. The applicant claims to have been subject to pressure from supporters and cadres of the Awami League (AL), which won the 2008 elections. In the lead-up to the elections, this included personal intimidation, attacks on his home and threats to his family members. AL thugs also targeted the family’s [farm]; the applicant has variously referred to extortion demands, and other impacts on the farm (such as its ransacking and/or forced sale). The applicant claims that the attacks escalated after the AL’s election win. These included an assault in January 2009, which resulted in his hospitalisation, and his discovery that he was subject to false criminal charges relating to weapons. The applicant has also claimed, at various points, to have been kidnapped and released after the payment of a ransom; that the police refused to assist him; and that he was denied a Bangladesh passport due to the false criminal charges. He claims to fear that AL activists are still looking for him, and will be able to torture or kill him if he returns to Bangladesh.

11. The applicant also appears to claim fearing harm if he returns to Bangladesh as a failed asylum seeker.

    Background

12. The applicant is a [age]-year-old man from [Area 1], [Union 1], [an] upazila (subdistrict), Jessore district. According to Google Maps, [Area 1] is [location deleted]. He lived there until his departure from Bangladesh in 2009 (at the age of [age]). He is a Bengali Muslim, and a speaker of Bengali (Bangla).

13. The applicant attended school from 1988 to 1995. He indicated in the SHEV application that he discontinued his schooling for financial reasons. He told the Tribunal that he started [a grade] but, despite pressure from his father, he stopped attending because he was not interested in study. After that, he worked for the family doing farm activities. This included, from about 2003 to 2008, work on the family’s [farm], jointly owned by him and his brother. That business ceased operation (he has on occasions linked that with his protection claims). After that, he worked casually as a farm labourer, before going to [Country 1].

14. The applicant indicated on his written applications that he has never married.

    §  However, at the Entry Interview and at the Tribunal hearing he said that he is married and has a daughter born in [year] (currently [age] years old).

    §  The applicant told the Tribunal that his wife and daughter are not interested in him anymore. He occasionally speaks with them or sends them a little money, but they need a husband and a father. He intimated that the pressure of being separated from his wife and daughter has undermined their relationships.

    §  In his response to the Tribunal’s s.424A issue, the applicant stated that he no longer has any contact with his wife, adding that for that reason he cannot provide a marriage certificate.

15. At hearing, the applicant said that his wife’s family and his sister provide financial assistance to his wife and daughter.

16. The Tribunal accepts that the applicant is married with one child; and that his prolonged absence from Bangladesh has caused strains in the relationship or led it to peter out. It appreciates that such separation can be a cause of great stress. It also considers it possible that, for reasons that are unclear, the applicant may simply have omitted reference to his wife and daughter in the TPV application, and then replicated this error in the subsequent SHEV application. Even so, it is unimpressed that he has failed to provide complete and accurate information about such basic matters. 

17. The applicant described his father as a farmer and small business owner, although he also referred to the family’s poverty (in the entry interview) and he alluded to financial problems as part of the reason for him having discontinued his schooling. At hearing, he said that the family home is empty (following the death of his parents), and the [farm] no longer exists (for reasons he linked with his protection claims). However, the family continues to own some land that is partly used for fruit cultivation and partly fallow, which is leased out. One of his sisters manages the (remaining) property.

18. The applicant’s parents both suffered strokes and died, his mother in about 2006 and his father in about 2011. At the entry interview, he identified three siblings, sisters [named], and a brother [named], all of whom were living in [Area 1] or [Union 1]. However, he also said that his brother ‘[name]’ set up the family [farm] where the applicant worked. At hearing, the applicant confirmed that he has three siblings. He said that he is in contact with his married sisters. He said that his brother went to [Country 1] in around 2007 or 2008 (contrary to his statement that he was living in the village at the time of the applicant’s travel to [Country 1] in April 2009). In response to the Tribunal’s further questions, he said he was not sure when his brother left Bangladesh. He said that he does not know his brother’s current whereabouts. The applicant said that, after more than 12 years in Australia, he feels considerable mental pressure and has lost contact with family and friends in Bangladesh.

19. The applicant departed Bangladesh in April 2009, travelling by air to [Country 1]. He has consistently stated that he travelled on a fake passport and entered [Country 1] illegally. The Tribunal considers this in more detail below. He claims to have mainly worked casually in [Country 1] in [an industry]. He also referred to casual work as a [occupation], and about six months’ steady work [doing specified work].

20. The applicant lives in [a suburb]. He was vague about his circumstances in Australia. He indicated that he sometimes worked in [an industry], and he referred to some contacts with the Bangladeshi community (BNP supporters). Asked about his social media presence (including any political messaging), the applicant said that he is not tech-savvy and does not take photographs or engage in other online activity much.

    Evidence

21. The evidence before the Tribunal includes the following relevant material (this is a consolidated list of material to the Department and the Tribunal, and is not exhaustive):

    Prior to the lodgement of protection visa applications

    §The applicant took part in an Irregular Maritime Arrival Entry Interview held on 24 January 2013. A recording of the interview is on the Department file. The Tribunal has listened to the recording and is satisfied that the notes of the interview (Parts A, B and C of the pro forma) accurately reflect his responses.

    §On 29 April 2013, the applicant participated in an interview with a case officer, in which he presented new claims, and a three-page statement of claims with new information.

    §Identity documents: The applicant submitted untranslated Bengali language documents[3] which appear to be a birth certificate and a citizenship certificate.

    [3] Noted in a Department email dated 1 February 2013.

    §Protection-related documents submitted on 21 May 2013:

    -Untranslated statement from the applicant.

    -Complaint [dated] 11 March 2009 and First Information Report (FIR), dated 12 March 2009 (typed English texts, transcripts and translations), against the applicant and three other accused, in relation to arms offences.

    -Medical certificate issued on 3 May 2013, relating to treatment in January 2009.

    -Doctor’s certificate dated 3 May 2013 relating to the applicant’s treatment in 2008 or 2009.

    -Police first information report (FIR) and [complaint], both dated 11 March 2009; and a court order dated 5 June 2009 ordering that an arrest warrant be issued against the applicant.

    TPV application

    §The protection visa application lodged on 12 April 2016 and accompanying forms. The applicant set out his protection claims in brief responses to the questions on Form 866C.

    §On 12 June 2016, the Department received an email with the applicant’s boat ID number, with a copy of a national ID card for an ‘[name]’.

    §The applicant attended a protection visa interview (Department interview) on 31 March 2017, a recording of which is on the Department file.

    §Supporting documents (purported), additional to the documents provided previously.

    -Charge sheet, in English, dated 30 March 2009.

    -[Court] order dated 5 June 2009, issuing an arrest warrant against the applicant.

    §The Department’s s.57 letter of 29 May 2017 inviting the applicant to comment on potentially adverse information (inconsistent statements at the Entry Interview and in subsequent statements), and the applicant’s reply of 11 June 2017.

    §The applicant attended a protection visa interview on 31 March 2017. The Tribunal has listened to a recording of the interview, which is on the Department file, and is satisfied that the decision record accurately reflects his evidence.

    §The protection visa decision record (‘TPV decision’) of 14 June 2017.

    §The applicant applied for review of this decision on 16 April 2019, and provided a copy of the decision to the Tribunal (in respect of case no.1909551).

    §Protection visa decision record of 14 June 2017.

    SHEV application

    §The Department file includes a copy of the Independent Assessment Authority (IAA) decision to affirm the decision not to grant the applicant a protection visa, dated 21 February 2018.

    §The TPV visa application lodged online on 15 October 2020. It includes brief responses on the form, restating the applicant’s reasons for seeking protection.

    §The applicant continued to rely on the documents provided to support his TPV application, and submitted a further copy of his undated statement of claims.

    §The applicant attended a protection visa interview on 9 July 2021, by telephone. The Tribunal has listened to a recording of the interview, which is on the Department file. It is satisfied that the decision record is an accurate reflection of his statements.

    §Protection visa decision record of 12 July 2021, a copy of which the applicant provided to the Tribunal.

    Materials to the Tribunal

    §The applicant lodged an application for review in respect of the TPV application on 16 April 2019, and an application for review in respect of the SHEV application on 1 August 2021. In both instances, he provided a copy of the decision under review.

    §The applicant provided a statement of claims dated 19 November 2023. Having agreed that the two applications for review should be combined, he included reference numbers for both cases.

    §The applicant did not provide any further documentary evidence relating to his applications.

1. The applicant appeared before the Tribunal on 27 November 2023,  to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages, who was present in the room. The applicant’s representative did not attend.

2. On 22 May 2024, the Tribunal sent a letter under s.424A, inviting the applicant’s comments/response to adverse information that he had provided during various interviews (including his entry interview, and in interviews for the TPV and SHEV visas) and material provided specifically for one or other of the applications. The Tribunal received a reply on 12 June 2024.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Identity

3. The applicant has given several versions of his name, as follows:

   §  At the IMA Entry Interview, he gave his name as [name] (also known as [alias]), born on [date].

   -   The applicant did not have identity documentation, but wrote that he could obtain a birth certificate and a citizenship certificate from the union council office.

   -   The applicant claimed to have travelled to [Country 1] by air, on a fake passport which he has since lost.

   §  During the TPV application, the applicant gave his name as [name], DOB [date]. He submitted the following documents:

   -   National ID card for ‘[name]’, DOB [date]; national ID no. [deleted].

   -   He also produced several Australian cards, namely an Evidence of Immigration Status card, NSW Photo Card, and Medicare card. These record his first name as [name], and his surname as ‘[name]’.

   §  During the SHEV application, the applicant provided the following:

   -   Birth certificate issued on 2 February 2018, for [name], DOB [date], birth registration no. [deleted].

   -   National ID card for [name], DOB [date], national ID no. [deleted].

4. The Tribunal explored these issues with the applicant at hearing. He said that his full name is ‘[name]’. He noted that in Bangladesh, people do not go by their given name and family name, and that he felt stressed (and by implication, confused) when asked for details at his initial interview. He then said that in Bangladesh, he is also known by the name ‘[name]’. When asked by ABF officers to obtain a birth certificate, he found that his real name ‘[name]’ had been recorded as ‘[a different spelling]’.

5. The Tribunal asked the applicant about the email dated 12 June 2016, from [email deleted], submitting a national ID card that gave his year of birth as [year]. He did not respond substantively, but instead referred to the national ID issued in 2018 which gave his year of birth as [year].

6. In his statement of 10 June 2024, replying to the Tribunal’s s.424A letter, the applicant gave his name as ‘[name]’, stating that on arrival he gave his identity as [name]. Referring to the national ID card that he submitted during the TPV application, and subsequent documents, he requests the Tribunal to accept his identity as ‘[name]’ [sic]

7. The Tribunal accepts that the various versions of the applicant’s name may be attributable to: (a) transliteration from Bengali to Roman script; and/or (b) naming conventions, as they are practiced within Bangladesh (for instance, the inclusion or not of family names such as ‘[name]’) and when completing English language forms (for instance, identifying what is a given and family name). It also notes that, in the decisions under review, the delegates were satisfied that the applicant had complied with the Act.

   §  In the TPV decision of 14 June 2017, the delegate noted that the applicant had provided four ‘aliases’, i.e. variants based on his name ‘[name]’, and one divergent birth date (December, rather than [month and year]), but considered that he had provided sufficient evidence of his identity.

   §  In the SHEV decision of the delegate noted these variations, and also that the applicant had provided a birth certificate issued on 2 February 2018, with the name ‘[name]’, and the [year] date of birth. The decision notes that, when asked about the name ‘[name]’, the applicant said that his real name is ‘[name]’, but the name ‘[name]’ had stuck because his teacher had called him that.

8. This leaves unaddressed the national ID card in the name ‘[name]’, DOB [date], that was sent to the Department by an ‘[name]’; by email on 12 June 2016, from the address ‘[email]’. The difference in name and date of birth, and the absence of other reference points (such as correct Boat ID number) suggest that this was not in fact sent by the applicant, or relating to him. What is of concern, however, is that the applicant subsequently produced documentation – such as the birth certificate issued on 2 February 2018 – that includes the name ‘[name]’ and his [date] date of birth.

   §  This does not sit well with his protection visa applications, in which he claims to have only ever used the name ‘[name]’ (with variations), and no other name.

   §  Also, the applicant has since claimed that his real name is ‘[name]’, explaining inconsistently that a teacher at school gave him the name ‘[name]’ and (in his s.424A reply) that he adopted the name ‘[name]’ only after his arrival in Australia.

   §  Moreover, the purported police, court and medical documents, allegedly relating to events in 2009, and submitted by the applicant after 2013, all refer to him only by the name ‘[name]’. At hearing and in his letter, the applicant did not address these inconsistencies, but merely stated that he is known as both ‘[name]’ and ‘[name]’, with the request that the Tribunal use the latter.

9. The Tribunal finds on the material before it that the applicant’s identity is ‘[name]’, born on [date]. It is of the view that the email of 12 June 2016 from an ‘[name]’ was in fact from a different individual, and not the applicant. The Tribunal considers that both the birth certificate issued on 2 February 2018 ([name], DOB [date]) and the national ID card purportedly issued on 28 October 2010 ([name]), are the applicant’s misguided attempts to clarify his identity, by suggesting that he was in fact known as ‘[name]’ all along.

10. At hearing, the Tribunal drew on country information about documentation from Bangladesh. For instance, the most recent DFAT country information report notes the difficulty in verifying documents, and the inconsistencies that appear between documents relating to the one person, whether through poor record-keeping or fraud. For instance:

    5.27 Documents from Bangladesh are difficult to verify. Document verification can involve a difficult, resource intensive and long bureaucratic process that is often not successful. Some documents can be verified more easily – for example birth, marriage and death certificates can be verified online – but such ‘verification’ is not necessarily an indication that the document is genuine. […]

    5.28 It is not uncommon for documents related to the same person (for example a birth and a marriage certificate of the same person) to have different details recorded, for example a variation in the spelling of a name or a different date of birth. This can be related to fraud but could also be caused by poor record[1]keeping practices or poor clerical practices (for example, typing or transcription errors).

11. As noted in the Tribunal’s s.424A letter, while it accepts that the applicant has provided satisfactory evidence of his identity (as have the delegates in the decisions under review), the documents that he has obtained since arriving contain incorrect information. This is relevant to the Tribunal’s assessment of other documents submitted in this case, and potentially its view of the applicant’s credibility as a whole.

    Receiving country

12. The applicant claims that he is a Bangladesh national. He has provided some identity and other documents (although, for reasons discussed elsewhere in this decision, the Tribunal has concerns about the authenticity and contents of some of those documents). He speaks Bengali, and demonstrated his familiarity with Bangladesh. On the available evidence, and in the absence of any suggestion to the contrary, the Tribunal accepts that he is a Bangladesh national. It therefore assesses his claims against that country as the receiving country.

    Assessment of facts

13. The Tribunal must make findings of fact as a basis for assessing Australia’s protection obligations. It is mindful of the principles that apply in fact-finding generally, and assessments of credibility.

14. As the Full Federal Court observed in AVQ15,[4] it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[5] However, it is also well-established that the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is it required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[6] The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility, and commentary on credibility assessments from other sources, in evaluating the applicant’s evidence as a whole.

    [4] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

    [5] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor

15. In the present case, the Tribunal takes into account that the applicant appears to have had limited formal education and life experience, and does not appear to have strong presentational skills. Also relevant is the passage of time, as his claims largely relate to events that (allegedly) took place in Bangladesh more than 14 years ago.

16. The Tribunal is struck by the variable and generally poor quality of the materials submitted on the applicant’s behalf. For instance, the primary applications both state that he has never been married or in a de facto relationship, and that he has never been known by any name other than ‘[name]’.[7] He contradicted this in other evidence. In a similar vein, he submitted undated statements with both applications which, along with other materials (such as the applicant’s response to the Tribunal’s s.424A letter) merely repeat snippets of information provided previously, without addressing issues raised at hearing and in correspondence, such as inconsistencies and anomalies in his claims and evidence. The Tribunal is left with the impression that the applicant has received only limited assistance with his applications, and that this may have added to doubts about his credibility. It takes this into account in the assessment below.

    [7] Form 866C, questions 35 and 9 respectively.

17. One area of particular concern is the stark difference between the applicant’s statements at his entry interview on 21 January 2013, and his subsequent claims. At that interview, he denied that he or family members had any political affiliation, and he stated that he left Bangladesh in 2009 for reasons of poverty. This contrasts with his subsequent claims, namely that he and his father supported the BNP, and that he fled Bangladesh in response to threats and violence. Just over three months after the entry interview, on 29 April 2013, the applicant is on record as having informed a Department officer that he had been a member of the BNP; that he had been arrested and beaten; and that he was subject to false charges. He explained that he had lied at the entry interview, fearing that the Australian authorities would deport him if he revealed the truth. On 21 May 2013, another three weeks later, he provided copies of documents to support these claims.

18. At hearing, the applicant said that, on arrival in Australia, he was uncertain about the Australian rules, and he simply followed the advice of others to deny any political involvement or problems in Bangladesh. He echoed this in his response to the Tribunal’s s.424A letter. In the Tribunal’s view, the applicant’s admission that he gave false information at the entry interview raises broad questions about the veracity of his subsequent claims and evidence, and whether they have been devised to obtain permanent residency. However, in the circumstances of this case – where the applicant appears to be unsophisticated and impressionable, and where he articulated claims and provided evidence within a few months of his entry interview – the Tribunal considers that it would be unwise to rely on his statements at interview, in isolation, to draw firm adverse inferences. Nonetheless, given the applicant’s unsatisfactory claims and evidence across a broad range of issues, including his identity, family composition and events in Bangladesh, his statements at the entry interview do form part of the Tribunal’s overall view that he is a witness of low reliability.

19. Overall, the material before the Tribunal is in a confused and unsatisfactory state. Many of the applicant’s submissions appear to be imprecise or contradictory, and to include sometimes ad hoc references (for instance, to incidents) that lack a clear context. Some of this may be attributable to the way in which the applicant expresses himself (including his narrative style); the gloss that may have been put on them at various points by translators, interpreters or his agent; and/or any propensity on the applicant’s part to tailor his evidence so as to strengthen his protection claims. These circumstances make it difficult to navigate the applicant’s shifting claims and evidence, and to assess their veracity. They do not, however, dispel the Tribunal’s broad concerns.

20. While there are some common features in the applicant’s claims – such as friction at political rallies, an assault by AL-affiliated men in January 2009, some action against the family [farm], and the filing of false criminal charges – the details of these claimed incidents, including their sequencing, were changeable. Also striking is that some of the written statements included mention of events, such as a kidnapping and an assault at a political rally, that simply did not appear to resonate with the applicant at hearing. The Tribunal is left with the strong impression that the applicant (and/or the person who assisted him with these statements), is presenting claims with scant attention to detail or consistency, and that they are not in fact based on his lived experience.

21. The applicant wrote that his mother died in mid-2009 and his father in 2012, while he was in [Country 1]. He stated that he was unable to return for their funerals, in part due to his lack of a valid Bangladesh passport, but also due to his fear of harm from the ruling AL party. The Tribunal accepts that the applicant would like to have returned for his parents’ funerals. It is possible that he did not have access to a valid [Country 1] passport to undertake such travel. Given the lack of information about the applicant’s situation in [Country 1] at the time, and broader concerns about his credibility, the Tribunal does not place weight on his failure to return to Bangladesh in 2009 and in 2012, as evidence that he fears politically motivated violence from the AL.

22. In sum, the Tribunal has significant concerns about the accuracy of the applicant’s claims and evidence, and his credibility as a witness. Its full assessment of his protection claims is below.

    Political claims: Bangladesh Nationalist Party (BNP)

23. At his entry interview on 21 January 2013, the applicant indicated that he did not have any political engagement, and nor did his family.

24. However, on 29 April 2013, he advised a Department case officer that he had indeed been a member of the BNP, and subject to arrest, assault and subsequently false criminal charges. On 21 May 2013, he provided copies of documents to support these claims.

25. As noted above, he explained that he did not present these claims at the entry interview, as he feared that the Australian authorities would send him to Papua New Guinea or Nauru, or to Bangladesh. The Department wrote to the applicant on 29 May 2017, inviting his comments on the omission. In his reply of 11 June 2017, he commented briefly (and cryptically) that his entry interview ‘was not accepted by the DIBP and [he had] been given another chance to provide the reason to leave Bangladesh’. He has maintained the position that decision-makers should disregard the entry interview, and instead regard his evidence in April/May 2013 as his decisive presentation of his claims and evidence.

26. The Tribunal accepts as plausible that the applicant followed the advice of others as to what he did or did not say at interview, rather than heed the interviewing officer’s warning about the need for true and correct answers. His denial of any political involvement is obviously of concern. For the reasons stated above, the Tribunal draws no adverse conclusions from the applicant’s statements at the entry interview on 21 January 2013.

    Introduction to the BNP in Bangladesh

27. The Department’s note of 29 April 2013 records the applicant as having advised that he was a member of the BNP, with no further details.

28. In the undated statement provided for the TPV application (and also in the subsequent SHEV application), the applicant recorded the following:

    §  His father was a farmer and small business owner, and a member of the BNP.

    §  Under his father’s influence, and due to the BNP ideology, in 2000, the applicant became involved in BNP politics.

29. In evidence to the Tribunal, the applicant noted that the delegate (presumably a reference to both delegates) had not accepted that he or his family members had been involved with the BNP. In an undated statement, he said that his father had held several positions in the local BNP and had some influence. This made it easy for the applicant to become a party member, without completing an application form, or paying a fee or receiving a membership card. He noted that he and his family support the BNP because of its commitment to democracy, economic freedom, equality and social cohesion.

    Party membership or function

30. The applicant claimed in his undated statement of claims that, after becoming politically engaged in 2000, he joined the local BNP branch in 2006. He reiterated that most recently in his statement to the Tribunal of 19 November 2023.

31. The Tribunal notes that in previous oral and written evidence, the applicant has referred to aspects of his (claimed) membership of the BNP. For instance, he mentioned that local party membership fees were collected at monthly meetings.

32. At the Tribunal hearing, he described himself as a ‘leg-worker’ (in the words of the interpreter, i.e. a grassroots worker). He said that he was busy, and did not really understand the distinction between a party member and a worker. In any event, everyone in the local area knew that he (and family members) were involved in the BNP. The Tribunal queried the references to the applicant in the (purported) FIR as ‘[a senior position]’ of the BNP’sJessore District Committee, and as ‘[a position]’ of the same committee in the (purported) complaint. These did not resonate with him. He said that perhaps his father held such a position.

33. The applicant did not corroborate his claim to have been a BNP member, or to have performed any specific function within his local branch, with either contemporaneous evidence (such as proof of membership, or photographs or correspondence from that time), or more recent letters of support. His variable evidence as to whether he was or was not a party member adds to the Tribunal’s doubts. Even allowing for the passage of time, it is difficult to believe that the applicant initially presented claims based on being targeted as a party member, and now recalls only that he was a grassroots worker. In sum, the Tribunal considers the applicant’s claim to have been a local member to be weak. (It considers that the references in the police documents to him holding more senior political positions ultimately go to the genuineness of those documents.)

    Political activities

1. The applicant described a range of political activities that he engaged in for the BNP which, regardless of whether he was formally a member or party merely an activist, potentially made him a target of AL leaders and cadres. These included the following (not exhaustive).

   §  In the undated original statement of claims, the applicant claimed to have attended many meetings and rallies with his father and grandfather, and to have been involved in ‘all kinds of preparations’ for the election. In his TPV interview, he referred to organising and attending party meetings, putting up posters, and participating in public protests and processions.

   §  The statement to support the SHEV application, refers to the applicant having attended meetings and rallies with his father and grandfather, and his involvement in the 2008 parliamentary election campaign.

   §  At hearing, the applicant said that as a grassroots worker (i.e. not a member), his tasks included talking to people and encouraging them to attend meetings. He implied that this was commensurate with his limited education. He said that, in the lead-up to the 2008 elections, he put up posters and encouraged people to attend rallies with political leaders. He followed the instructions of a now-deceased BNP leader. The applicant named the candidate he supported[8]. He could not recall the name of the winning AL candidate, but thought that he might have been given a diplomatic posting abroad.

   [8] He named ‘[Mr A]’ which appears to have been a reference [to a] candidate in the Jessore-2 constituency, [Mr A]; [deleted].

2. The Tribunal found the applicant’s statements about his claimed political work to be vague and unsubstantiated. The kinds of activities he described – such as helping set up and attending meetings, helping with leaflets and posters, and encouraging people to go to party events – are the kind of practical, collective activities that local political (and similar) groups might enlist young people to support them with. They do not ordinarily entail any profile or influence for participants, and do not necessarily indicate a genuine political conviction. A significant added concern in the present case is that the Tribunal formed the view that the applicant’s real priority was his family and their farm, and that his work with any political groups was at best peripheral.

3. In sum, the Tribunal does not accept that the applicant was member of the local BNP, but it accepts that he may have preferred the party, attended some large gatherings and occasionally assisted local party supporters. It does not accept that this amounts to a genuine political commitment on his part; that he had any profile or influence within the local BNP party branch; or that anyone (including AL supporters) would have perceived him as such.

   Ongoing political interests

4. [Country 1]: The applicant was in [Country 1] from approximately 2009 (age [age]) to late 2012. At hearing, he said that he did not follow any political matters while there. The Tribunal accepts that he did not engage in politics while in [Country 1], including any contacts with like-minded Bangladeshi residents there or back in his home area.

5. The applicant said in this context that, as he had no legal papers, he was mostly in hiding in [Country 1], implying that there was no opportunity to pursue political interests. The Tribunal accepts that the applicant may have had limited scope for such activities in [Country 1], given his work commitments and perhaps his lack of legal status. However, given its concerns about the applicant’s credibility (including the weak evidence that he was ever active in the BNP, in any capacity), the Tribunal does not accept at face value that he had any interest in supporting the BNP while living in [Country 1]. Also, irrespective of the reason for the applicant’s lack of political contacts during the period of 2009-2013, the Tribunal finds that his absence from the local BNP activities would, in any event, have (further) diminished any contacts or involvement that he may have had previously.

6. Australia: The applicant has been in Australia for more than 11 years. At hearing, the Tribunal queried whether the applicant had any ongoing interest in or association with the BNP, in Australia or in Bangladesh. The applicant provided few details and no supporting evidence. He said that he attends BNP gatherings when there is a notification. He mentioned attending a recent meeting on a Sunday, with a named local leader; and that he sometimes went to BNP meetings, although not on a regular basis.

7. The applicant said that he did not have any evidence relating to such contacts, adding that the local BNP group does not issue membership cards. He does not have any photographs or similar materials, in part because he is not tech-savvy and is not interested in photographs. In relation to social media, he said that he does not share political material online, as he does not have permanent residency and could therefore face problems if he shared material. He said that people in Australia (implicitly, members of the Bangladeshi community) know that he is affiliated with the party here. The applicant did not provide any supporting documentation or present any witnesses.

8. The Tribunal notes, for completeness, that the IAA decision refers to a scanned image of ‘an undated BNP Australia membership application form which has been filled out by the applicant and signed by him and two BNP Australia officials.’ The applicant did not submit any such material directly in relation to his TPV or SHEV applications, or to the Tribunal on review. Nonetheless, the Tribunal notes the mention of such an image in July 2018.

9. The Tribunal found the applicant’s account vague and unsubstantiated. He seemed more concerned to explain why he had no evidence of political activity in Australia, rather than trying to establish what might be available to corroborate his claims. The Tribunal accepts that he may have drawn on some basic knowledge of or social contacts with BNP supporters in Australia, but does not accept on the available material that he is actively involved in any such groups, including meetings or in any protests.

10. One strand of the applicant’s presentation was that he refrains from social media activities, and by implication is cautious in his political contacts in Australia, for fear of landing in trouble if he is removed to Bangladesh in the future. In light of the Tribunal’s assessment that he does not have any genuine political motivations, it does not accept that the applicant avoids expressing his political opinion or engaging in relevant conduct, to avoid any future harm in Bangladesh.

    Analysis and findings

11. The Tribunal accepts, on the basis that it is plausible, that the applicant prefers the BNP. General country information, including DFAT’s most recent country information report[9], indicates that it is the main opposition party, with traditionally more support in certain areas of the country, and seen as more conservative, anti-India, urban-based and accommodating of political Islam, compared with the ruling AL. The Tribunal takes into account that the applicant’s family, as landowners and small businesspeople, may have leaned towards the BNP.

    [9] DFAT Country Information Report Bangladesh November 2022, paragraph 3.77ff

12. The Tribunal found the applicant’s account of his involvement with the BNP, whether as a young local supporter or, according to earlier versions of his claims, as a party member from 2006, to be very limited, vague and lacking even basic corroboration. It accepts that, as a person who favours the BNP, he may have been aware of and attended large political gatherings in the lead-up to the 2008 parliamentary elections, and even helped the party on occasions. However, it finds that any such activity was low-key and peripheral. It does not accept that he was actively involved in any campaign, or that he was a party member, or that he was perceived (by the AL or anyone) to have such a profile.

13. Even allowing for the applicant’s circumstances in [Country 1] and Australia – for instance, his legal status in [Country 1], and language, migration and other concerns in Australia – the Tribunal detects no genuine efforts to engage in Bangladesh politics, or to associate with BNP supporters in either country. It concludes that, since leaving Bangladesh in 2009 – more than 15 years ago – he has not demonstrated any political interests in the BNP or Bangladesh politics. Moreover, the Tribunal finds with confidence that, irrespective of any reputation his family may have had as BNP supporters in the past - no AL-affiliated persons in the applicant’s home area (including local AL leaders, cadres or general supporters) currently perceive the applicant as being active in the BNP. 

    Adverse experiences in Bangladesh

14. As noted above and discussed at hearing, the applicant indicated in his entry interview on 21 January 2013 that he left Bangladesh due to poverty and the poor law and order situation. He did not identify any specific past harm.

15. From 29 April 2013 on, the applicant submitted to the Department claims relating to his BNP involvement, and his mistreatment at the hands of the AL (that is, government agents, political opponents and/or their associates). The applicant’s claims have emerged from successive written statements, submissions, oral evidence at interviews and in the content of supporting documents, including purported police and court documents.

16. The Tribunal’s findings above that the applicant had only a general leaning towards the BNP and at most only occasionally attended rallies or helped with errands, but had no profile or genuine engagement - together with its adverse view of his credibility - cast strong doubt over all the applicant’s claims of past harm. Nonetheless, the Tribunal considers it appropriate to assess the applicant’s experiences in Bangladesh, including the circumstances of his departure from that country and subsequent developments. It does so to determine, amongst other things, whether he may be subject to future criminal prosecution and whether there may be residual claims relevant to an assessment of his future prospects.

17. During the course of his primary applications, and on review, the applicant’s successive accounts of his experiences in Bangladesh from 2006 until his departure in April 2009 have been difficult to piece together a single clear chronology; they have at various points included omissions and/or new information; and they have differed in important circumstantial details. In his evidence to the Tribunal (including his response to the s.424A letter), the applicant referred to his poor memory but did not provide any further reasons for such inconsistencies. Instead, he merely restated his latest version of events.

    Prior to the December 2008 elections

18. In his most recent statement, the applicant stated that during the 2008 parliamentary election campaign, he and his party colleagues ‘would fight with the AL when they had competing protests, but nothing else’. In a similar vein, he stated at the TPV interview that he was present at a political rally in December 2008 when AL cadres attacked his group; but he was in the back of the procession and escaped without injury.

19. The Tribunal infers from this, and the applicant’s evidence at hearing, that (a) he has no specific claims of past harm arising from any incidents prior to December 2008, and (b) that during the campaign itself, BNP and AL supporters fought on occasion, but he did not suffer any particular harm.

20. As noted in DFAT’s most recent country information report[10], violent clashes between rival groups, particularly ahead of elections, are a common occurrence in Bangladesh. Protests – often for party political, but also other social and economic reasons – are frequent, large and often result in violence, for participants and occasionally bystanders. At a general level then, this information broadly supports the applicant’s claim that he may have got caught up in some pre-election clashes, whether as a participant in large rallies or an observer.

    Violence in the wake of the 2008 elections

    [10] DFAT, Country information report – Bangladesh, November 2022, paragraph 2.33.

21. The applicant’s latest statement suggests that his claims of past harm relate to the period immediately after the elections held on 29 December 2008, i.e. in the first three months of 2009. Given the confused and changeable state of these claims, it is convenient to take as a starting point his most recent synopsis of his claimed mistreatment[11], which identifies the following:

    §  Attacks on the home and family: AL people attacked his home and threatened his family, warning that they would destroy them all if he continued his political work.

    §  Extortion and forced transfer of the [farm]: A local AL thug demanded extortion money from the [farm], returning several times with AL cadres. The police refused to assist. On the third occasion, the thugs again attacked the house, holding the applicant and his father at gunpoint, and forced them to sign papers for the sale of the [farm].

    §  Abduction and kidnapping for ransom: In January 2009 (after the election which the AL won), AL cadres kidnapped the applicant and held him for one week, until his father paid a ‘huge amount of ransom’.

    §  Assault: After his release, AL cadres attacked the applicant one evening, leaving him for dead. He was treated in a clinic for seven days. The applicant’s parents tried to lodge a police complaint, but were unable to do so.

    §  False cases: The applicant and his family found out there was a false (politically motivated) case against him. This prompted his father to start planning his departure from Bangladesh.

    Attacks on the home and family

    [11] Set out in his letter of 10 June 2024, responding to the Tribunal’s s.424A letter.

22. In his submission of 19 November 2023, the applicant wrote that AL people attacked his home and threatened his family, to force the applicant to stop his political work. The applicant ignored them, and continued his activities. The statement does not state when this occurred, but implies that it was in the lead-up to the election.

23. At hearing, the applicant said that AL cadres (the Latif group) used to come to the family home and intimidate them. He said that they have since ransacked and burned down the house, which is now abandoned. In response to the Tribunal’s questions, he said that he does not have further details of exactly what happened, as he was not there at the time. In other words, these events occurred after he left [Area 1] in early 2009, or after his departure from [Country 1]. He did not have any corroborative evidence.

24. The applicant also referred to the deaths of his mother in 2009 and his father in 2011, implying that these were at least partly linked with the stress the family was experiencing.

25. The Tribunal accepts as plausible that the applicant’s family home is now unoccupied (rather than destroyed by fire), but notes that the family continues to own and rent out the adjoining farmland. It is difficult to imagine why AL cadres (or other opponents) would attack the family home, yet leave the surrounding farmland intact as a source of income for the family. The Tribunal is concerned that the applicant has drawn on his family circumstances – such as his parents’ deaths, his siblings’ residence elsewhere and the prior closure of the [farm] (see below) – and presented this as being part of a sustained political campaign by the AL. It does not accept these claims at face value.

    Extortion and forced transfer of the [farm]

26. The submission of 19 November 2023 describes an AL activist demanding a large sum of money one day; and returning with friends a few days later. The applicant and his father lodged a complaint with the police. Three days later, the men stormed the house, pointed guns to the applicant and his father, and forced them to ‘sell’ the [farm] to them. Again, there is no timeframe, but the narrative suggests that it was prior to the election in December 2008.

27. At hearing, the applicant said the AL cadres ransacked the [farm]; the written claim that they forced him and his father to sell, or hand over title of it to them, did not resonate with him. Similarly, he did not recall anything specific happening to his father around this time (such as being held at gunpoint). He commented briefly that he does not know what happened around this time. He later appeared to recall that there had been extortion demands, but was unsure if there had been any weapons. He referred vaguely to the family having been devastated during the period, and also in the following years.

28. The applicant has consistently referred to the family (i.e. he and his brother) having run a successful [business] which later shut down. As noted above, he told the Tribunal that the family home is currently unoccupied, but the family owns and leases out some adjoining farmland. He did not appear to recognise the claim that AL cadres had forced him and his father to hand over or sell to them the [farm]. As discussed at hearing, he has variously referred to AL cadres having vandalised the [business] following the elections, and killing or stealing chickens. He told the Tribunal that after the election, AL cadres ransacked the [farm]. He claimed to have since learned that it, together with the family home, was completely burnt down.

29. The Tribunal found the applicant’s description of the [farm] and its operations credible, but does not accept that its closure had anything to do with his protection claims. The applicant’s uncertain evidence about his brother’s movements – i.e. whether he went to [Country 1] in 2007, 2008 or later – reinforces the Tribunal’s doubts about these claims, as his brother was his business partner in this venture.

30. The Tribunal accepts as plausible, given the reported extent of corruption in Bangladesh, that the applicant and his family may have had to make some payments to AL cadres or other local groups, in the form of de facto ‘protection money’. It does not accept that such payments, or any implied threats, amount to serious or significant harm. The Tribunal accepts that the [farm] closed at some point – possibly years before the applicant’s departure for [Country 1], as he claims to have worked as a casual farm labourer [after] that – but finds that this is unrelated to his protection claims.

    Abduction and kidnapping for ransom

31. The November 2023 statement refers to AL cadres having kidnapped the applicant as he was returning from a relative’s home, detaining and mistreating him in an unknown location, and releasing him only after his father paid a large ransom. It is referred to on both pages 3 and 5 of the statement, with details such as the names of the three AL cadres who seized him.

32. At hearing, the applicant did not appear to recognise this claim. He merely said that if the AL cadres had been able to get hold of him, this is what they could have done (i.e. as a hypothetical rather than actual past event). The Tribunal has found no prior mention of this.

33. The Tribunal finds that there was no abduction or kidnapping for ransom, for political, financial or any other reasons. This appears to be an example of the applicant, or a person assisting him, improvising with claims that bear little or no relation with the truth.

    Assault: January 2009

34. The applicant claimed in his November 2023 statement that AL cadres assaulted him in January 2009, while he was on his way home. He was left for dead, and some local people took him to a nearby hospital. The applicants’ parents tried to file a complaint at the police station, without success.

35. At hearing, the applicant said that this was the sole occasion in which he had been assaulted and injured.

    §  Initially, he said that local government officials identified him (and his political colleagues) as political terrorists. AL cadres then attacked him (and others), leaving them injured in the jungle. Relatives found him and took him for treatment in a hospital.

    §  Later, he said that the attack occurred while he was on his way home from the market (which was about 1km away), where he had been socialising. Latif’s people attacked him in the late evening, on an unmade village road. By ‘jungle’, he had been referring to nearby land with banana and other fruit trees.

1. The applicant pointed to some scarring near his [deleted], and said that he received 13 [stitches].

2. The applicant provided a medical certificate dated 3 May 2013 in English, from a surgeon [stating] that the applicant was treated from 6 to 13 January 2009, for [lacerations], and presented with multiple bruises on his body (this is poorly legible), following a physical assault. The Tribunal’s observed that the certificate had been prepared more than four years after the treatment, and evidently to assist the applicant in his bid for protection. In reply, the applicant said that the incident definitely occurred. His family had shown the medical papers to the doctor, to help him prepare the certificate.

3. The Tribunal accepts that the applicant has some [scarring], but this does not reveal the nature or circumstances of any injuries he has suffered. In relation to the certificate, it is unclear why – if the applicant’s family were able to show the doctor contemporaneous medical records (presumably medical notes, discharge certificate, receipts and the like) – he did not use these to support his protection claims.

4. As broadly discussed at hearing, and set out in the s.424A letter, the applicant has consistently claimed that AL opponents assaulted and seriously injured him in early 2009. However, there have been marked inconsistencies in his account of such attacks. In April/May 2013, he told a Department case manager that the AL cadres came to his home and assaulted him. In the TPV application, he claimed that he was assaulted once on his way home from a BNP party meeting, and on another occasion when AL cadres attacked him at a peaceful party rally, leaving him badly injured on the road.

5. The Tribunal accepts that the applicant has suffered an injury to his head, at some point. However, it does not accept that these were the result of a targeted attack by AL cadres in the immediate aftermath of the December 2008. Even though country information indicates a surge in political violence and targeted attacks following the AL victory, the Tribunal does not accept that the applicant had any association with the BNP (as a member or active supporter) that would have warranted such an attack. Second, the inconsistencies and uncertainty about the actual alleged attack are, in the Tribunal’s view, not trivial. Third, the applicant has not provided contemporaneous documents to show that he received medical treatment at that time, despite his claim that his family showed these to the doctor who wrote the certificate some four years later. The Tribunal places minimal weight on the certificate, as evidence of the applicant having received treatment in January 2009, or the circumstances that led to the injuries (‘physical attack’). Finally, while the applicant has [scars], these do not reveal the circumstances in which the injury occurred.

6. On the available material, the Tribunal does not accept that AL cadres attacked the applicant in the first week of January 2009.

   Politically motivated false charges

7. The applicant first alerted a Department officer in April 2013 (hence, several months after his arrival in Australia) to there being politically motivated false claims against him. He has referred to such charges on numerous occasions, and provided supporting documents, as follows:

8. At interview in April 2013, he stated that after his hospitalisation (following the assault, which he now puts at January 2013), someone in his village alerted him that the AL had brought a case against him, relating to firearm possession.

9. There was no mention in the TPV application[12] of the criminal charges, or that he has been charged with any offence awaiting legal action. However, he did refer to the false case in his TPV interview on 31 March 2017 and in his SHEV application.

   [12] As noted in the Tribunal’s s.424A letter.

10. General country information indicates that the AL-led government has for many years used false criminal charges against political opponents, including to harass and intimidate them, and potentially lead to their imprisonment. For instance, the most recent DFAT report notes: ‘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.’  DFAT goes on to note that, while high profile BNP figures and activists are more likely to be targeted in this way, any BNP member who actively opposes the government may be caught up in such actions. While the general thrust of this information is that active BNP supporters may be vulnerable to politically motivated false charges, the Tribunal’s findings about the applicant’s minimal political interests indicate that he does not have any relevant profile.

11. The applicant provided several documents relating to the claimed charges and court action. These are:

    §  Purported First Information Report (FIR) in English, filed on 11 March 2009. This identifies the applicant, [age] years old and described as [senior position] of the Jessore District BNP, as one of four men accused of firearms offences and a section of the Arms Act. The co-accused are listed as being the General Secretary, Vice President and Assistant General Secretary of the same BNP branch.

    §  The complaint [in] poor English, appears to state that, acting on intelligence, the police officer found the accused in the possession of nine pistols and other weapons, in [a] Bazar at 8:30pm. Although it is far from clear, the text may indicate that the applicant and others were planning to commit murder and overturn the government.

    §  A purported charge sheet, dated 30 March 2009.

    §  A purported order from the [Court][13], dated 5 June 2009, issues an arrest warrant for the applicant, who had absconded. It notes that the charges against two of the accused had been proved, and a fourth co-accused had died in ‘crossfire’ (police shooting).

    [13] The translated text reads: [deleted].

12. At hearing, the Tribunal asked the applicant about the provenance of these documents, his knowledge of the contents, and for an update on any legal proceedings. In so doing, it alerted him to country information about the prevalence of document fraud in Bangladesh, including purported police and court documents, and indicated its concern about at least some of the other documents he had presented (in particular, the national identity cards).

    §  The applicant said that his sister had obtained the police and court documents for him. He said that he had asked her to obtain documents in English, as officials in Australia cannot read Bengali. He does not know how she obtained them, and had not made any further enquiries. Asked how she had sent them to him, he thought that she may have sent them by email in 2013, but is unsure and was unable to check because he lost his mobile telephone.

    §  Significantly, the applicant did not present any copies of the original Bengali language texts. The documents in English bear wet stamps stating that they have been attested by an advocate in Jessore, there is no indication that they have been translated.

    §  The Tribunal also asked the applicant about the content of the documents, such as whether he knew his co-accused and why there was a reference to him as [position] of the Jessore District BNP. It was appeared that he has not looked at the documents. He said that he does not know anything (and had evidently not enquired) about the other accused persons; and perhaps the reference to his position in the BNP was based on his father’s profile. He added that the allegations regarding weapons possessions are untrue. The Tribunal accepts that a person who is subject to false criminal charges may feel that their accusers can fabricate anything. However, they may nonetheless be curious to check the details of the charges and find out what led to them. The applicant’s indifference to these matters strongly suggests that the documents themselves are not genuine, and have no real-life consequences (other than in support of the protection visa application).

    §  Asked about any further developments in these criminal proceedings, the applicant said he learned from neighbours that the police used to call on the abandoned family home from time to time, up to about 2015. He has no more information about the status of any charges against him. In response to further questions, he said that his wife and daughter had moved away. (In earlier evidence, he had stated that his parents had died, his sisters were married, and his brother had left for [Country 1].) The Tribunal notes that, even though the alleged charges form the centrepiece of the applicant’s protection claims, he appears to have not turned his mind to making enquiries about their progress in the Bangladeshi courts.

13. All of these factors give rise to concerns about the genuineness of the purported police and court documents. On the material as a whole, the Tribunal finds that they have been made-to-order, at the applicant’s and his sister’s request. It places no weight on them as evidence to support the applicant’s protection claims, including that he is subject to politically motivated criminal charges.

14. Given the Tribunal’s concerns about the applicant’s account of these charges and their consequences, the purported documents he submitted and his credibility as a whole, the Tribunal finds that there are in fact no false charges. It flows from this that the Tribunal also does not accept that the applicant applied for a Bangladesh passport in early 2009, but was refused because of the charges, or that these had any influence on his conduct (namely, his travel to Dhaka and then to [Country 1]).

    The applicant’s experiences as a whole from January to April 2009

15. The first months of 2009, following the AL victory in the parliamentary elections, was a period of considerable violence in Bangladesh. While the Tribunal has significant problems with the applicant’s individual claims of past harm, it has also considered how they relate to each other, and whether they could amount to a cogent picture of him experiencing turmoil and constant threats.

16. At hearing, the applicant said that after his initial treatment in the clinic after the attack, he went to another place for treatment and recovery. (The Tribunal took this to mean that, after his discharge from the clinic, purportedly on 13 January 2009, he went elsewhere, and did not go directly to Dhaka.) He said that he then went to Dhaka, and stayed there for some three weeks.

17. The Tribunal found the applicant’s account confused and unpersuasive. It accepts that the passage of time makes it difficult to recall details. However, the applicant seemed unable to provide a basic account of the sequence of events, or to be able to address anomalies in his statements and supporting documents. For instance, the clinic report gives his discharge date as 13 January 2009, almost two months before the alleged false charges were brought (the FIR is dated 11 March 2009). It is difficult to accept, then, that news of the false charges prompted him to go straight from the clinic to Dhaka, where he claims to have been in hiding.

18. During the review, the Tribunal sought to clarify how these incidents related to each other, i.e, the sequence and timing of developments from late December 2008 to the applicant’s departure in April 2009. This included, critically, the applicant’s treatment in a clinic (up to 13 January 2009), his discovery while in the clinic that there were false charges against him, the documents suggesting that the criminal proceedings started in the second week of March 2009; and his activities up to his departure from Bangladesh in April 2009. The applicant confirmed his claim that after leaving the clinic (and aware that he was subject to false charges), he went to Dhaka. He said that he spent about a week in Dhaka, before departing for [Country 1]. He added that he was in poor shape, having been beaten badly and being in hiding due to the false charges and his political opponents’ pursuit of him. Despite his claims in both his TPV and SHEV applications that while he was in Dhaka, an AL cadre recognised him and tried to kill him, he did not claim to have had any adverse experiences while in ‘hiding’ in Dhaka.

19. The Tribunal finds with confidence that, while the applicant may have drawn on some aspects of his life – such as problems with the [farm], and an injury he suffered [at] some point – his claims to have been subjected to political violence and threats at the hands of AL cadres in [Area 1] and the surrounding area, and his family’s adverse experiences, are untrue.

    Summary

20. The Tribunal accepts that the applicant may have drawn on some aspects of his and his family’s experiences prior to April 2009, but it does not accept that he was subject to any targeting by AL cadres, including threats, assaults, property damager and intimidation of his family. It does not accept any of the claims set out in the most recent statement. Given the piecemeal, often unclear presentation of claims during the course of his TPV and SHEV applications, and on review, the Tribunal goes on to also not accept any associated or implied claims of past harm that he has presented.

    Departure from Bangladesh

21. The applicant has consistently claimed to have left Bangladesh on a ‘fake passport’, but details and surrounding circumstances are sketchy and somewhat inconsistent.

22. The applicant claimed in his submission to the Tribunal that the Bangladesh authorities denied him a passport because of the false case against him. According to this scenario (which the Tribunal does not accept as truthful), this would mean that the passport authorities became aware of the false charges, which were filed on 11 March 2009; they refused the applicant’s passport application after this; and the applicant then found an agent who was able to arrange the applicant’s travel to [Country 1] by April 2009. This appears to be very tight timing. 

23. The applicant wrote in his submission to the Tribunal that a local ‘manpower businessman’, i.e. labour hire agent, approached him with the opportunity to work in [Country 1]. This person arranged a fake passport for him. Having rejected the applicant’s claims that he was subject to adverse treatment at the hands of political opponents; that he was subject (among other things) to false criminal charges); and that he was refused a genuine passport because of those charges, the Tribunal finds that the real reason for the applicant’s departure from Bangladesh in April 2009 was that he was offered the opportunity to work in [Country 1].

24. The Tribunal accepts as plausible that the labour hire agent arranged a ‘fake passport’, for instance, for photo-substitution of the applicant’s photograph into a Bangladeshi passport that contained a [Country 1] visa with work permission, or through similar means. It accepts that the applicant’s focus was on being able to travel to and work in [Country 1], and not on the details of how the agent arranged it. In any event, it finds that the purpose of any fraudulent activity was to secure entry into [Country 1]. It does not accept that the timing or manner of the applicant’s departure are related to his protection claims, or even the unstable political conditions that prevailed in Bangladesh in the first half of 2009.

    Developments in Bangladesh since 2013

25. The applicant claims to have had minimal contact with family (including his wife and child, or other direct family members), friends or like-minded BNP supporters, since arriving in Australia.

26. The applicant claims that his political opponents continue to search for him, intent on harming or killing him. He claimed at hearing to have learned that the AL cadres have looted the family home, and burned it and the farm down. At the TPV interview, he claimed to have learned about new criminal charges against him under the Digital Security Act, although he did not refer to this at the Tribunal hearing or address this claim in his reply to the Tribunal’s s.424A letter.

27. At hearing, the applicant said that he had recently learned from his sister about the jailing of [villagers] in his home area. He said that this was relevant to his circumstances, implying that had to do with extortion (including politically motivated extortion). Replying to the Tribunal’s questions, he said that there is coverage of this in social media (Facebook), although he did not submit any examples or show an interest in doing so.

28. The Tribunal found the applicant’s references to adverse developments since his departure from Bangladesh to be improvised, unsubstantiated and unpersuasive. It does not accept that there have been any incidents relevant to the applicant’s protection claims.

    Failed asylum seeker

29. The applicant claims to fear persecution or significant harm as a failed asylum seeker, essentially on the basis that the AL-led government will assume that he has made claims based on an anti-government political opinion. The Tribunal accepts that, if he were to return to Bangladesh, the authorities may perceive of him as a failed asylum seeker. It takes into account, among other things, the applicant’s travel history (including departure for [Country 1] in 2009, his onward travel to Australia in 2013 and his lack of any substantive visa) and the likelihood that the Bangladesh consular authorities would need to issue him with a travel document for his return to that country. In these circumstances, it is highly likely that the authorities will surmise that he has sought protection in Australia, and that it did not result in permanent residency.

    ASSESSMENT – REFUGEE CRITERION

30. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct and relevant country information, he has a well-founded fear of persecution for any reason set out in s.5J(1) of the Act, on his return to Bangladesh, now or in the reasonably foreseeable future.

31. When asked about his future conduct if he returns to Bangladesh, the applicant said that he feared local thugs in his village would target him, and he was not sure what other options he would have elsewhere in the country. It was apparent that he had not turned his mind to this. The Tribunal accepts that he is unsure about this, after a prolonged absence in [Country 1] and then Australia. It proceeds on the basis that he would return to his home area, at least initially.

32. The Tribunal, having found that the applicant merely favours the BNP, was not actively involved in any party activities or campaigning, and did not suffer any harm for such reasons (and nor did his family), concludes that he is not a person of adverse interest to any AL leaders, members or supporters, in his home area of [Area 1], or anywhere in the country. It follows that the Tribunal is not satisfied that there is a real chance such persons will target him for reason of any past profile.

33. The Tribunal does not accept that the applicant, who has been outside Bangladesh for some 14 years, has any political interests or conviction that motivate him to be politically active. It accepts that he may have met or socialised with some Bangladeshis in Australia who favour the BNP, but it is not satisfied that he has developed any political commitment, or will be perceived as having done so. In light of these findings, the Tribunal does not accept that the applicant has, in Australia, refrained from political activities (such as posting material online) for fear of being targeted if he were to return to Bangladesh.

34. The Tribunal has accepted that the Bangladesh authorities may perceive the applicant to be a failed asylum seeker, if he is returned to Bangladesh. DFAT’s most recent country information, which was referred to at hearing and in the applicant’s submission of 19 November 2023, addresses the prospects for returnees, including people who left Bangladesh on fraudulent documents, in the following terms:

    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.

1. The applicant wrote in his submission: ‘I think the delegate failed to realise the actual situation in Bangladesh’, and recapped his claim that AL activists, workers and supporters are still looking for him. At hearing, he vaguely referred to the digitalisation of records, and stated that it is a ‘big possibility’ that the AL authorities will punish him. Responding to the Tribunal’s observation that this did not seem to be a priority for the authorities, he replied that he is not sure what will happen.

2. While the Tribunal accepts that the applicant may have departed Bangladesh on a fraudulent passport (or one that had been altered), and is therefore technically in breach of the Overseas Employment and Migrants Act (OEMA) 2013, the Tribunal notes that he left in 2009, and that he does not have any adverse profile for political or other reasons. It finds that, while the Bangladesh authorities may assume or become aware of the circumstances of his departure and his failed asylum application, there is no real chance of them targeting him (including for any reason of any imputed political opinion) and inflicting serious harm on him.

3. The applicant has at various times expressed other claims. For instance, at the TPV interview he mentioned that there is a false case against him under the Digital Security Act. He did not provide any details or supporting evidence, and he did not address this at the hearing on in response to the Tribunal’s s.424A letter. The Tribunal finds on the available evidence that there is no foundation to this claim.

4. Similarly, at the outset of the Tribunal hearing, he claimed that his family had told him that his political opponents will target and try to extort him, on the basis that he has lived in a Western country. Despite ample opportunity to do so, he did not expand on this during the course of the hearing. Having concluded that the applicant is not politically active, and is not a person of adverse interest to AL supporters in his home area, the Tribunal does not accept that such people will be motivated to single the applicant out and extort him if he returns to his home area. The Tribunal did not understand the applicant to be claiming more generally that he is at risk of extortion merely for having lived abroad for some 15 years, and it is not satisfied that he has any genuine or well-founded fear of persecution as a returnee who has lived in a developed country.

   Overall assessment

5. The Tribunal has considered all the applicant’s claims and evidence, including their cumulative effect. It is not satisfied that he faces a real chance of serious harm for reason of his political opinion (actual or imputed), or for any reason, now or in the reasonably foreseeable future, if he returns to Bangladesh.

6. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1)(a), now or in the reasonably foreseeable future, if he returns to Bangladesh. He therefore does not meet the refugee criterion in s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

7. The Tribunal, having concluded that the applicant does not satisfy s.36(2)(a) now proceeds whether he meets the complementary protection criterion in s.36(2)(aa). It has regard to the findings of fact above, his future conduct and relevant country information. It notes also that s.36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

8. The Tribunal refers to the findings of fact above, the applicant’s brief comments on his future conduct, and the Tribunal’s views on any associated risk. The Tribunal is not satisfied that there are substantial grounds for believing that the applicant – who has minimal interest in the BNP, and has no political profile - will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

9. Implicit in the applicant’s claims is a criticism of Bangladesh’s political culture, governance and social conditions. The Tribunal is not satisfied that his exposure to such conditions if he returns to Bangladesh gives rise to a real risk that he would result significant harm as exhaustively defined by s.36(2A). In any event, the Tribunal considers that such risks (which it does not accept would be a real risk of significant harm) are faced by the population of Bangladesh generally, and not faced by the applicant personally. It is therefore taken not to be a real risk that the applicant will suffer significant harm: s.36(2B).

10. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Conclusion

11. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

12. 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).

13. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

14. The Tribunal affirms the decisions not to grant the applicant the protection visas.

    James Silva
    Member

    ATTACHMENT - CRITERIA FOR A PROTECTION VISA

    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.

    …

    
    

(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547