1909552 (Refugee)

[2023] AATA 1482

1909552 (Refugee) [2023] AATA 1482 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Monir Hossain (MARN: 0958158)

CASE NUMBERS:  1909552 & 2100098

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Penelope Hunter

DATE:24 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa in:

i.     application 1909552, for a Safe Haven Enterprise (Subclass 790) visa, filed on 29 February 2016; and

ii.application 2100098, for a Safe Haven Enterprise (Subclass 790) visa, filed on 27 September 2020.

Statement made on 24 March 2023 at 2:19pm

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – a member of the BNP party – may have been a low lever supporter – not satisfied that he was of any interest to the Awami League or the authorities in Bangladesh – differing versions of his experiences – a failed asylum seeker returnee – manufactured claim to support his application for protection –applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 5AAA, 5AA, 5H, 5J, 5K, 5LA, 36, 46A, 48A, 65, 91K, 411, 424A, 427, 499

Migration Regulations 1994, Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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. This is an application for review of two decisions made by a delegate of the Minister for Home Affairs to refuse to grant a visa under s 65 of the Migration Act 1958 (Cth) (the Act). The first is a decision made by a delegate on 28 April 2017 to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV). The second is another decision to refuse to grant the applicant a SHEV as a result of an application made on 14 December 2020. The background to the application is explained below.

   BACKGROUND

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] 2012, according to Departmental records. He was initially considered an Unauthorised Maritime Arrival (UMA) as defined in s 5AA of the Act due to the method of his arrival to Australia, and was subject to s 46A of the Act.

3. The applicant was previously granted a Humanitarian Stay (Temporary) (Subclass 449) visa, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act, as the applicant was thought to be an unauthorised maritime arrival. On 21 December 2015, the then Minister for Immigration lifted the s 46A bar, and wrote to the applicant and invited him to apply for either a Temporary Protection (Subclass 785) visa (TPV) or a SHEV.

4. On 29 February 2016, the Department accepted an application for a SHEV. On 28 April 2017, a delegate of the Minister refused the application, and the applicant was notified of the decision.

5. On 3 May 2017, the Department referred the matter to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 11 December 2017, the IAA affirmed the decision under review.

6. The applicant sought a further review before the Federal Court. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not considered an UMA due to this 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 the applicant a SHEV is not a ‘fast track decision’ (as defined in s 5(1) of the Act). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411. On 16 January 2019, the Minister withdrew from the Federal Court proceedings.

7. On 23 March 2019, the Department renotified the applicant of the delegate’s decision to refuse the first SHEV application. On 17 April 2019, the applicant made an application for review to the Tribunal of that decision.

8. Then on 18 September 2020, the Department advised the applicant that his first SHEV was invalid due to the effect of s 91K of the Act. The applicant was also notified that the Minister had lifted the s 91K bar to allow him an opportunity to apply for a SHEV again. The Department also lifted the s 48A bar against the making of a further protection visa application onshore following a protection visa refusal or cancellation.

9. On 27 September 2020, the applicant made another application for a SHEV.

10. On 14 December 2020, a delegate of the Minister refused the second SHEV application. A valid application for review of this decision was made to the Tribunal on 4 January 2021.

11. Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Accordingly, the applicant’s first TPV application was not subject to a bar under s 91K of the Act and was also a valid application. It follows that the applicant had also made a valid application for review of the delegate’s decision of 28 April 2017.

12. In view of the above circumstances, which have resulted in the applicant having two valid applications for review of two separate decisions made by delegates of the Minister, the Tribunal determined to combine the two reviews pursuant to s 427(2) of the Act. The applicant was invited to appear before the Tribunal at a combined hearing, as detailed further below.

    CLAIMS AND EVIDENCE

13. The applicant claimed to be a citizen of Bangladesh and born in [year]. He was born in [Jessore] District, Kulna Division, Bangladesh. He claims to be of the Muslim religion and an ethnic Bengali.

    Entry interview

14. Following his arrival in Australia, the applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Department on 1 December 2012.

15. The applicant set out that he had been educated in Bangladesh to [a grade] and then worked as a [occupation]. He had [number siblings]. He had departed Bangladesh for [Country 1] in approximately 1997. The applicant advised that the reason for this travel was that he had too many brothers and sisters in Bangladesh and it was too hard to support everyone, so he went to [Country 1] for work. In 2006 he returned to Bangladesh for over a month, and then back to [Country 1]. He made a further trip to Bangladesh from June to September 2012, and then returned to [Country 1]. In October 2012, the applicant married [a] woman living in [Country 1]. In October 2012 he departed [Country 1] and travelled to [Australia].

16. When asked why he left his country of nationality, the applicant told the officer that he had left Bangladesh to work in [Country 1]. When he went back to Bangladesh the opposition people were demanding money and donations so he returned to [Country 1]. In [Country 1] his salary was not enough and there was also the threat of being caught because he was illegal and being asked to pay money or have a case brought against him. Local bad people in [Country 1] also took money from him. The applicant further disclosed that he and his brothers were involved with the Bangladesh Nationalist Party (BNP), and he was a member of the BNP party.

    First SHEV application

17. The applicant also submitted with his application a copy of his Bangladeshi birth certificate and citizenship certificate. He claimed that he was born on [Date 1], and that he had his parents [and siblings] who continued to reside in Bangladesh. The applicant set out that he had travelled to India for tourism in approximately 1994. Between 1997 and 2013 he was living in [Country 1] and he listed the reason for his visit as “work”.

18. The applicant set out the following reasons for claiming protection:

    i.In Bangladesh, he was involved with the BNP and he was a victim of political harassment. He got ‘death threat [sic]’ from local Awami League workers/supporters (the Awami League is in government). They try to destroy all opposition party leaders, active workers and supporters. They tried to kill him several times and he left his country for fear of persecution.

    ii.From his past experience, he believes that he will be harmed and mistreated by the Awami League government politicians, workers and supporters if he returns to Bangladesh. This is because he had a bitter experience in the past and it is common in Bangladesh for government party members to harass opposition party members, with the illegal support of the police.

    iii.Once government party workers/supporters beat him mercilessly on the way home from a party meeting. Another time he was attacked at a peaceful party rally and they beat him and left him on the road.

    iv.He went with his family to the police station to lodge a general diary. But the police officer refused to take the complaint and said that they cannot take any complaints against government party workers/supporters.

    v.The applicant did not move or try to move to another part of Bangladesh, because wherever he goes, he will have the same problem. The Awami League Government has a strong network all over the country and they will find him. He tried to live in hiding in Bangladesh but they found him when he returned home.

    vi.There is no authority in Bangladesh to protect him if he goes back because the authorities support the Awami League party. The Bangladesh authorities, such as the police and court, listen to the government. As his party is not in power, he will get no effective protection from any authority.

19. On 25 February 2017, the representative for the applicant submitted additional documents to the Department including a letter dated 22 December 2016, from [Mr A], president of the BNP [specified] Branch, [Jessore] confirming the applicant’s membership of the BNP for two years. The applicant also provided an unsigned statement, which set out the following (in summary):

    i.He is one of [number] brothers and sisters. His father was a freedom fighter and also a member of the BNP. His grandfather was also a member of the BNP and he is also a member of the BNP. From an early age he was interested in politics. He supported the BNP since 1993 but he started to work actively for them in 1995 when he became an official member of the local BNP.

    ii.He started working for the BNP in [a] Village. He organised meetings and protests and invited people to attend. He voted for the first time on 15 February 1996 in the General Election. The opposition parties boycotted this election. The BNP won this election but the parliament broke up after the first parliamentary assembly and handed over power to the caretaker government. The caretaker government declared that another general election be held on 12 June 1996. The BNP participated in this election, during which he campaigned door to door and made speeches relating to his BNP candidate. He participated in many meetings and rallies.

    iii.The Awami League won the 12 June 1996 election and formed government. After this, he was often harassed by Awami League party supporters at his shop. He reported the incident to the police but they refused to officially register his complaint.

    iv.His father started to think about his safety and became determined to send him overseas. He was trying to get a passport to go overseas, but due to a ‘false case’ he failed to obtain a passport. One of the local businessmen [offered] to help him get a passport and he went to [Country 1] in 1997.

    v.In [Country 1] he got a job in a [company]. He visited Bangladesh in 2006 and 2007 to check whether it was possible for him to stay in Bangladesh. Although the caretaker government was in power in 2007, at the grass roots level the Awami League had the authority. He found that the political situation in Bangladesh was getting worse. He was still a target of the Awami League, so he returned to [Country 1].

    vi.In his last few years he was illegal in [Country 1], and scared of the police and immigration authorities. If he was caught, he would be tortured and put in jail. There was also many Bangladeshi living in [Country 1] who were Awami League supporters and they recognised him. One night they beat him and threatened to inform the [Country 1] police about him. In fear he started thinking about leaving and an escape route from [Country 1]. A businessman said that he could help the applicant go to Australia by boat. He was also told that Australia was a peaceful country, where they help the poor and give protection to refugees. He travelled to Australia to seek protection.

    vii.Living in Sydney, he feels secure for the first time in his life. If he returns to his country, he will face imprisonment and torture and death. He keeps in contact with his family members about the political situation in Bangladesh. The Awami League formed government for the second time and are trying to wipe out the opposition, especially the BNP.

20. The applicant was invited to attend an interview before the delegate of the Minister on 28 February 2017. The interview was conducted with the assistance of an interpreter in the Bengali and English languages. Where relevant, the applicant’s oral evidence to the delegate in the course of that interview is referred to further below. At the interview the applicant provided to the delegate a copy of his Bangladeshi driver’s licence issued [in] 2011. In their decision record, the delegate expressed concern that the applicant’s responses at interview were vague and lacked clarity and detail. The delegate accepted as plausible that the applicant was involved with the BNP as a low level supporter, however inconsistences were identified and the delegate did not accept that the applicant had ever been threatened, harassed or beaten by the Awami League because of his political involvement.

    IAA review

21. On 11 December 2017, the IAA reviewed the decision to refuse the applicant’s TPV application. The IAA decision record is on the Department file, however the Tribunal has not had regard to the findings or reasons in that decision. In his submissions received on 3 October 2022, and again at the Tribunal hearing, the applicant objected to the IAA process. The Tribunal acknowledges that as per DBB16 v MIBP (2018) 260 FCR 447, the applicant is not a fast tracked applicant and the decision of the IAA is not a legally valid decision.

22. On 7 March 2023, the Tribunal wrote to the applicant and noted that it did not have before it a copy of any submissions he provided to the IAA. The applicant was requested to provide a copy to the Tribunal by 21 March 2023 if there was material he wished to rely upon additional to that submitted to the Tribunal and the Department. No further documents or response have been received from the applicant.

    The second SHEV application

23. On 27 September 2020, the applicant lodged with the Department a second SHEV application. In this application the applicant repeated the claims contained in his first SHEV application.

24. The applicant attended an interview before the delegate of the Minister on 2 December 2020.  The applicant has provided to the Tribunal a copy of the decision record of the delegate. The Tribunal had reviewed a recording of the interview and is satisfied that the decision record reflects the information provided by the applicant. The interview took place with the assistance of an interpreter in the English and Bengali languages. Following the interview the applicant provided to the Department a statement regarding his date of birth and details of other family members to address discrepancies. The delegate considered a number of the applicant’s claims to be inconsistent, illogical and not credible. Further, it was considered that he did not provide a satisfactory explanation of his activities with the BNP, and these claims of involvement had evolved over time. Although it was accepted that the applicant may have been a low-level supporter of the BNP, the delegate did not accept that the applicant was of significant adverse interest to the Awami League due to his support for the BNP. The delegate records that at the interview the applicant made the following additional claims:

    i.He had to leave Bangladesh in 1997 due to a false case against him as he was accused by the Awami League of stealing, and his father had to assist him to obtain a passport.

    ii.He resumed his political activities in Bangladesh when he returned in 2006 and 2012 and he was again attacked by Awami League supporters.

    iii.The applicant was in hiding during his three months in Bangladesh in 2012. Although he was beaten and assaulted by the Awami League during this period, he stayed because he wanted to help people.

    The review

25. Given that the applicant’s claims arise from the same experiences and that he had the same representative in both matters, the Tribunal determined to combine the first and second review applications.

26. On 29 August 2022, the Tribunal wrote to the applicant in respect of both review applications and invited him to attend a combined hearing on 11 October 2022.

27. On 3 October 2022, the applicant provided the Tribunal with an updated submission as to his claims. In summary, he stated:

    i.The delegate has misunderstood his situation. He confirmed that:

    ·He was a devoted BNP member.

    ·He had been threatened, beaten and targeted by the Awami League.

    ·He was targeted in [Country 1] by Awami League supporters.

    ii.He was interested in BNP politics from a young age. At [age] he started to work for the BNP. He applied and became a member of the local BNP by completing a form and paying a fee of 5 taka. He was a popular and important person in the local BNP.

    iii.The local Awami League people/workers did not like him as he was a popular figure among the young members of his local BNP. After he became a member, he increased his party activities. He was a familiar face at all sorts of BNP activities, including party meetings and rallies, and was involved in recruiting new members. Local Awami League workers did not like his activities. They started to threaten him to get him to stop these activities. Sometimes they attacked him at rally or party meetings. He was the target of their attack.

    iv.He participated in rallies, meetings and protests. One of his important jobs was to arrange the meeting. To do this he had to identity the purpose/agenda of the meeting, the type of meeting, and the type of leaders attending the meeting. If the political meeting or gathering was only with the local leader, he set a different goal to a national leader. After setting the goal of the meeting, he had to set a budget, find the target people and consider management. Transport would need to be arranged to and from the meeting/gathering. He had to make sure people had sufficient food, water and sanitation facilities, he had to arrange the doctor and first aid facilities in case of emergency, and he had to ensure that an ambulance would be available and arrange police and security.

    v.While in [Country 1] the Awami League supporters identified him. They beat him often and asked him for money. He was continually under pressure from the Awami League people and it became impossible for him to stay in [Country 1].

    vi.In 2012, when he re-joined the BNP, he was again attacked by the Awami League. Their motive is to persecute all opposition in the country. They are serious about low level supporters and they are killing every level of supporter. In 2012 he became a prime target of the Awami League and his only option was to leave the country immediately.  

    vii.There were many political incidents at a local level in Bangladesh that are not reported to the media. The state does not provide any assistance.

1. The applicant appeared before the Tribunal on 11 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The Tribunal again discussed with the applicant at hearing the decision to combine the review applications. The applicant did not raise any objections and confirmed his consent to a joint hearing on his claims.

2. On 3 January 2023, the Tribunal wrote to the applicant and invited him to comment on certain information arising from both applications pursuant to the provisions of s 424A of the Act. The applicant sought and was granted an extension of time to respond, and on 23 January 2023, the Tribunal received a response. Where relevant, the information and the response of the applicant is set out below.

3. On 21 December 2022, the Tribunal wrote to the applicant and provided a copy of the updated Department of Foreign Affairs and Trade (DFAT) Country Information Report: Bangladesh of 30 November 2022. The Tribunal drew to the attention of the applicant several paragraphs of the report for comment as set out below, and no response has been received from the applicant:

   3.82 There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.

   3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.

4. On 7 March 2023, the Tribunal wrote to the applicant and noted that it did not have before it a copy of any submissions he provided to the IAA. The applicant was requested to provide a copy if there was material he wished to rely upon additional to that submitted to the Tribunal and the Department.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Nationality

11. The applicant arrived in Australia by boat without any identity documents. The applicant has produced to the Department a copy of his Bangladeshi Nationality Certificate, a copy of his Bangladeshi birth certificate and an original Bangladeshi driver’s licence. The Tribunal notes several discrepancies in these identity documents and information presented by the applicant to the Department. In particular, in his birth certificate the applicant is known as [applicant name], son of [father’s name], born [Date 1] but according to his motor driving licence, he is known as [applicant name Variant 1], born [Date 2].  At his Irregular  Maritime Interview on 1 December 2012, he claimed that his name was [applicant name Variant 2], born [Date 2]. In both his SHEV applications he claimed to be [applicant name], born [Date 1]. Before the Tribunal, the applicant also confirmed that his name was [applicant name], born [Date 1]. The Tribunal has also had regard to country information and considered the advice of DFAT that it is not uncommon for documents relating to the same person to have different details recorded, and that this can be caused by poor record-keeping or poor clerical practices.[1] Therefore, despite these minor discrepancies, on the basis of the documents submitted and his oral evidence, it is accepted that the applicant is a national of Bangladesh. The Tribunal will assess his claims on that basis. The Tribunal further accepts that he does not have the right to reside in any country other than Bangladesh. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Bangladesh is the receiving country for the applicant for the purposes of s 36(2)(aa).

    [1] DFAT Country Information Report – Bangladesh, 30 November 2022, at 5.28.

    Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

12. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

13. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

14. As many of the claims of the applicant relate to matters that may have occurred more than a decade ago, the Tribunal is careful in the weight that it places on inconsistencies and other unfavourable credibility concerns when making adverse findings. With this in mind, the Tribunal has had regard to the totality of the applicant’s evidence in both matters, the reasons he claims to have departed Bangladesh and why he alleges he cannot return, and the Tribunal is not satisfied that his claims are made out. The applicant’s evidence in many instances was found to be unreliable, substantially inconsistent and illogical. Where the Tribunal discusses inviting the applicant to comment on its concerns in January 2023, this was done pursuant to the provisions of s 424A of the Act. Overall, the Tribunal finds that there are considerable difficulties with the applicant’s evidence, as detailed below.

15. Firstly, the Tribunal has concerns about the claims and evidence of the applicant regarding his reasons for departure from Bangladesh, and in particular whether he was the subject of legal proceedings. In its invitation of 3 January 2023, the Tribunal put to the applicant for comment its concern regarding what it considered was inconsistent information as to whether he was the subject of an outstanding criminal case in Bangladesh. Particularly, it was noted that in both his SHEV applications filed on 29 February 2016 and 27 September 2020, he claimed that he had not been charged with any criminal offence that was awaiting action. Yet this claim first arose in submissions provided prior to his first SHEV interview in February 2017. During his interview with the delegate on 2 December 2020, the applicant then claimed that a false case had been brought against him by the Awami League to harass him and that he was accused of theft. At the Tribunal hearing, when asked about this matter, the applicant gave evidence that he did not have any problems with the authorities at the time he departed Bangladesh. The applicant’s response to the invitation to comment received on 23 January 2023 did not acknowledge the inconsistencies or address the Tribunal concerns but repeated the information provided at the SHEV interview with the delegate in December 2020 and again asserted that there was a false case against him and he was accused of theft. In light of the inconsistencies and the inability of the applicant to explain them, the Tribunal does not find the claim about the false case brought against him prior to departure from Bangladesh to be credible. The Tribunal has also had regard to the fact that the applicant returned to Bangladesh on two occasions following 1996, in 2006 and 2012, and it is not satisfied that he would have done so if there was an outstanding case against him. The applicant has also made no claims that he was pursued in relation to this matter upon his return in 2006 and 2012.

16. Secondly, the Tribunal also has difficulty reconciling the evidence of the applicant regarding the travel documents he had upon departure from Bangladesh in 1997. When asked about this matter at the hearing on 11 October 2022, the applicant gave evidence that he departed on a valid passport. When asked if he had any difficulty obtaining his passport, the applicant said he was unaware if there were any problems arranging the passport as an agent did it for him. The applicant also gave evidence when questioned that he had departed Bangladesh for [Country 1] legally on each occasion. The Tribunal wrote to the applicant following the hearing and invited comment on what appeared to be inconsistent information and claims that the applicant had made about his ability to obtain a passport. For example, at his Irregular Maritime Arrival Interview on 1 December 2012, he told the officer that he had departed Bangladesh on a passport issued in his name. In his statement provided to the Department on 25 February 2017, he said he had failed to get a passport and a local businessman [helped] him get a passport. During his first SHEV interview with a delegate of the Department on 28 February 2017, the applicant claimed that he initially went to [Country 1] illegally and while staying there he ‘became legalised’ with a new passport. In a subsequent interview with a different delegate in relation to his SHEV application on 2 December 2020, the applicant said that he left Bangladesh in 1997 with a valid passport. His response, received on 23 January 2023, has not explained the inconsistencies; he has not engaged with the concerns of the Tribunal that he has at various times claimed that there were difficulties obtaining a passport and that he may have left the country illegally. The Tribunal is concerned that the reason for these inconsistencies is that the applicant is attempting to embellish a claim that he had a profile that was of interest to the Awami League or the authorities in Bangladesh at the time of his departure. The Tribunal does not accept that the applicant had difficulties obtaining his passport in 1997, and finds that he was able to depart the country legally on that passport. The Tribunal is not satisfied that he was of any interest to the Awami League or the authorities in Bangladesh when he initially departed in 1997.  

17. Thirdly, the Tribunal is not satisfied that the applicant’s claims about being a popular and important BNP member in his area are made out. The applicant had claimed that he was interested in politics from a young age, and the Tribunal asked the applicant what attracted him to the party; the applicant told the Tribunal that it was its ideology. When the Tribunal asked the applicant to expand on what he meant by the party’s ideology, the applicant responded that they usually do the right thing. Under further questioning, he was unable to elaborate further. The applicant was also asked how the BNP was different to the Awami League, and he said that as he understood it, the Awami League did not accept what was good, but the BNP was on the right path. The Tribunal was not satisfied that the evidence presented by the applicant as to his understanding of Bangladeshi politics was reflective of someone who was an important member of the BNP and had an interest from an early age. Although in his written claims, and his statement to the Tribunal, he details when he became a member and when he voted, when questioned at the Tribunal hearing, the applicant had difficulty recalling these matters. For example, he could not remember when he enrolled as a member, but it may have been some time after he turned 18. He was not sure if he had ever voted in an election but thought that he might have done on one occasion before he departed Bangladesh. As to his popularity in the party, the applicant gave evidence that he followed the instructions of senior people in the party. He responded, when questioned, that his father and brothers supported the party and he was accompanied by some friends when he joined the party. When the Tribunal sought to distinguish the activities of the applicant from his friends and family, he offered that they were involved but not as actively as him. However, when describing the activities he undertook, he confirmed he was accompanied by friends and his brothers. From the evidence of the applicant at hearing, it appeared to the Tribunal that he was attracted to the party for its social atmosphere and the social activity, rather than out of political interest. When asked about his activities at the hearing, the applicant told the Tribunal that he would be involved in the organisation of processions when leaders came to his area; he said that he would do official work under the direction of senior members and also attend the processions. However, when presenting his evidence at the hearing, it is notable that he did not claim to campaign door to door, or to recruit members, protest or make speeches. The evidence of the applicant at hearing was that the main activity that he was engaged in with the BNP was social work. He identified, in particular, working to repair roads and also taking people who needed assistance for medical treatment. In considering the actual evidence of the applicant as to his involvement with the BNP, the Tribunal finds that his claims regarding his political interest and importance are not made out. The Tribunal considers that the applicant has embellished his claims during the visa review process in an attempt to increase his profile and ensure a positive protection outcome. The Tribunal finds that this also undermines the reliability and credibility of his claims.

18. Fourthly, the evidence that the applicant presented at hearing was that his social work put him under pressure from the Awami League, rather than his activities involving protesting, campaigning, making speeches or recruiting members. The applicant claimed that the Awami League was jealous of his volunteer involvement in road repairs. As to the motivation for this jealousy, the applicant told the Tribunal that if a road was damaged, the Awami League would not take the initiative to repair it. The applicant did not claim that he himself had organised this activity or campaigned for road repairs to be done. He was undertaking the work as a volunteer with others he knew, such as his brothers. The Tribunal had difficulty understanding how these particular activities could lead him to have an adverse profile with the Awami League, and the applicant’s claim that they were jealous did little to distinguish him from those who accompanied him in the activity, such as his brothers. The applicant further confirmed that many of his brothers continue to live in Bangladesh in his village in the family home and that nothing had happened to his family since his arrival in Australia.

19. Fifthly, the Tribunal also had difficulty reconciling the applicant’s varied evidence regarding his claimed past experiences of harm in Bangladesh. When the Tribunal discussed these matters at the hearing on 11 October 2022, and the applicant was asked about any harm from the Awami League prior to his departure in 1997, his evidence was that there was no major physical injury. Before the Tribunal, the applicant claimed that the Awami League would question him when he did social work like repairing roads and on occasions when he went to the marketplace, they smacked or slapped him or held his collar. The applicant was invited to comment by the Tribunal, in its correspondence of 3 January 2023, on his evidence at hearing and other information he has provided. In particular, the Tribunal identified that in both his SHEV applications, the applicant made claims that the Awami League supporters/workers tried to kill him several times, had beat him mercilessly on the way to his home from a party meeting and attacked him at a peaceful rally, beating him and leaving him on the side of the road. When interviewed by the delegate in February 2018 in relation to his first SHEV application, and asked if there was any specific event involving the Awami League that impacted upon him prior to his departure in 1997, the applicant said that nothing direct happened in front of him, that incidents may happen here and there, but he was not directly involved or affected by any incident. It is acknowledged that the applicant made reference to slapping or pushing during a procession but he claimed he was never beaten. Again, when interviewed by a delegate in relation to his second SHEV application, the applicant said that he was tortured by the Awami League in the 1996 campaign; it was like a fight with someone punching and someone kicking him. At this time, the applicant claimed that he was hit in the chest and hit in the face, started bleeding and lost consciousness. In a statement provided to the Tribunal on 3 October 2022, the applicant had asserted that he was threatened, beaten and targeted by the Awami League, and that he was attacked at party rallies and was the target of the attacks. The applicant’s response to the Tribunal’s invitation to comment received on 23 January 2023 reasserted his claims as set out in his SHEV applications. They did not acknowledge the different evidence that the applicant presented at various stages.  He merely confirmed that the Awami League tried to kill him several times, and again made the claim that he was beaten on the way home from a party meeting and at another time attacked on the way home from a peaceful rally and left at the side of the road. Further, in this response he introduced a new incident of harm, claiming that in 2012, he was beaten, punched, kicked and thrown off the road by the Awami League when he tried to do activities in Bangladesh. It is of considerable concern to the Tribunal that the applicant has not been able to provide a consistent account of his experiences in Bangladesh. While it is acknowledged that some time has passed since the applicant’s initial departure from Bangladesh, it is expected that he would be able to consistently recall significant incidents of claimed harm. Furthermore, the Tribunal draws an adverse inference from the applicant’s post hearing claim of harm arising in 2012, and does not accept that the applicant could not have raised this matter earlier in his statements, his interviews with the delegate or at the Tribunal hearing. The various versions presented by the applicant of his experiences of harm at the hands of the Awami League are not minor discrepancies, and to not recall whether there were several attempts upon his life and significant physical injury is problematic.  The Tribunal is unable reconcile these incidents with the various times he has claimed that there was just jostling, slapping and questioning. It follows that the discrepancies and inconsistencies in his evidence on this issue indicate to the Tribunal that he is not a reliable witness, and that his claims to have suffered serious harm and attempts to kill him by the Awami League in the past are not factual.

1. Sixthly, the Tribunal also has difficulty trying to reconcile the divergent claims of the applicant about how the Awami League impacted his life in Bangladesh and whether he was required to spend time in hiding. This is because in both his SHEV applications he made claims that he had tried to live in hiding in Bangladesh but the Awami League found him when he returned home. During his interview with the delegate in relation to his second SHEV interview on 2 December 2020, it is acknowledged that the applicant made claims of being in hiding but this was at the time of his return to Bangladesh in 2012, when he claimed that he has spent most of this time hiding and fleeing from one place to another. Yet, on four other occasions (for example, in his statement provided to the Department on 25 February 2017, his statement provided to the Tribunal on 3 October 2022, during his interview with the delegate on 28 February 2022 and his hearing before the Tribunal on 11 October 2022) the applicant made no claims of being in hiding in Bangladesh at any time. When invited to comment on these inconsistencies by the Tribunal in its letter of 3 January 2023, the applicant responded that he had spent most of his time hiding when he had returned to Bangladesh in 2012, and fleeing from one place to the other. Then in the same response of 23 January 2023, he provided new claims to the Tribunal and asserted that at this time he tried to do some party activities but the Awami League harassed him and assaulted him physically. He claimed to have been beaten, punched and kicked and that they threw him off the road and did not allow him to move freely, and he had to spend most of his time hiding and fleeing from one place to another. The Tribunal has considered the various claims by the applicant on this matter and his explanation for them. When assessing the totality of the applicant’s evidence on this issue, it is unable to reconcile the differences. In particular, it is noted that when questioned by the delegate and when giving evidence at the Tribunal, the applicant had an opportunity to clarify his claims. Further, for the reasons set out above, the Tribunal draws an adverse inference from the late claim from the applicant about incidents of alleged harm by the Awami League in 2012. These issues further indicate to the Tribunal that the claims by the applicant that he was forced into hiding in the past were not factual.

2. Seventhly, the Tribunal draws an adverse inference from the fact that the applicant had previously returned to Bangladesh on two occasions, in 2006 and 2012. It is not accepted that he would have made these trips if he was an important BNP member as he claims, and if he had in the past been the victim of violent assaults, attempts on his life and a false case in relation to theft. It was also problematic for the Tribunal that the applicant claimed that he had returned to Bangladesh on both occasions in 2006 and 2012 because he wanted to return to his social work activities, because he claimed that this was important to him. Yet the applicant also confirmed that he had not taken any steps to undertake social work in [Country 1] and he had also not been involved in any social work in the years he has been in Australia. It follows that the Tribunal is not satisfied that the applicant returned to Bangladesh in 2006 and 2012 to resume his activities for the BNP, and consequently it also has concerns as to whether his claims arising from incidents that occurred on his return are factual.

3. Eighthly, also in relation to his 2006 visit to Bangladesh, it was difficult for the Tribunal to  reconcile his various claims and evidence about this experience. When questioned about this at the hearing of 11 October 2022, the applicant told the Tribunal that when he went back in 2006, he only thought about doing some activities for the BNP and had talked to his Chairman but did not actually get involved. His evidence to the Tribunal was that the Awami League was unhappy about his return and would say things like, “(n)ext time if we find you we will kill you”. When questioned, the applicant said that he endured no physical assaults, just slapping and smacking if he was going to the market. The applicant was invited to comment on his evidence at hearing and information he had provided on other occasions in the Tribunal’s correspondence of 3 January 2023. The Tribunal noted to the applicant that at his Irregular Maritime Arrival Interview on 1 December 2012, he told the officer that when he returned to Bangladesh from [Country 1], the opposition people were demanding money and donations so he went back to [Country 1]. Then in his statement provided to the Department on 25 February 2017, the applicant claimed that this happened when he returned to Bangladesh in 2006 and in 2007. Although in 2007 the caretaker government was in power, at the grass roots level the Awami League had the authority and he found that the political situation in Bangladesh was worse and that he was a target for the Awami League. During his interview with the delegate in respect of his second SHEV application on 2 December 2020, he made claims about undertaking BNP party work and said that the Awami League used to torture him and beat him up and that is why he had to leave. He further claimed that he was attacked when going to the markets and was threatened as follows: “(w)hy did you return from [Country 1], we will kill you”. The Tribunal also noted that it considered there to be inconsistent information about his experiences in 2006. In his response of 23 January 2023, the applicant asserted that at this time he was a target for the Awami League. He claimed that he was actually doing BNP work, as distinct from his evidence to the Tribunal at hearing that he was thinking about it, and he repeated claims about attacks, torture and beating. The applicant also went back to his initial evidence at his Irregular Maritime Interview that the Awami League also demanded money from him. In his response of 23 January 2023, the applicant further claimed that the situation was so bad for him that he returned to [Country 1]. The Tribunal does not accept the ultimate explanation of these inconsistencies offered by the applicant on 23 January 2023. The Tribunal has difficulty reconciling his conflicting claims of whether or not he undertook work for the BNP, whether there was minor scuffling and requests for money or he was tortured and beaten. It is noted that the applicant has asserted that the caretaker government was in place at this time. The Tribunal has had regard to country information and notes that in the lead up to the elections, which were initially proposed for January 2007, there were disputes over the leader of the proposed caretaker government, and there was particular turbulence, with reported clashes between the two political parties.[2] The BNP had previously held power from 2001 to 2006, yet the applicant chose this time of political instability to return to Bangladesh. The Tribunal does not accept that he would have done so if he had the profile that he claims. The Tribunal also does not accept that in the weeks he visited Bangladesh he would have engaged in political work in this environment. The Tribunal is unable to satisfactorily resolve the discrepancies set out above. It considers that the irreconcilable claims again demonstrate that the applicant is not a reliable witness and he has embellished his claims to suit a positive protection visa outcome and explain his previous returns to his home country.

   [2] UK Home Office, Country of Origin Information Service, Bangladesh, 15 June 2007, Chapter 4.

4. Ninthly, the Tribunal found that the information presented by the applicant regarding his return to Bangladesh in 2012 was similarly problematic. When asked what happened upon his return, the applicant said that he was about undertake some social work repairing roads for the BNP when there was conflict between the Awami League and the BNP. The clash was the only incident that occurred during his visit in 2012 and he remained in the country for approximately three months. The applicant also told the Tribunal that he did not experience any harm on this occasion and there was nothing that happened to cause him to fear for his safety. He told the Tribunal that during this time, he stayed in the family home and visited other relatives’ homes. The Tribunal contrasts this response with the applicant’s comments at his Irregular Maritime Arrival Interview on 1 December 2012, at which he told the officer that when he returned to Bangladesh from [Country 1], the opposition people were demanding money and donations so he returned to [Country 1]. In his statement provided to the Department on 25 February 2017, the applicant claimed only to have returned to Bangladesh in 2006 and in 2007, not 2012. Then at his interview with the delegate in relation to his first SHEV application on 28 February 2017, the applicant said that when he returned to Bangladesh in 2012, if he tried to do something with the BNP party, the Awami League would put pressure on him, and they did not allow him to move freely. Again, it is noted that in his later interview with the delegate in relation to the second SHEV application on 2 December 2020, the applicant said that when he went back he had to spend most of his time in hiding and fleeing from one place to another. He claimed that the Awami League harassed him and assaulted him physically. He claimed that they beat him, threw him on the road and punched and kicked him. Also, in his statement to the Tribunal received on 3 October 2022, the applicant said that in 2012 he became a prime target of the Awami League and that he had only one option to save his life – leaving Bangladesh immediately. Following the hearing, the Tribunal asked him to comment on what it considered to be widely varied descriptions of his experience in 2012, and in his response of 23 January 2023, the applicant said he had returned to Bangladesh in 2006, 2007 and in 2012. He did not in his response provide an explanation of his comments to the Tribunal at the hearing. The applicant instead asserted that all the previous claims of harm in 2012 had happened. He did not address what the Tribunal had identified as differences in past descriptions of events. He stated that pressure was placed upon him by the Awami League, and he was harassed, assaulted, beaten, punched, kicked and thrown on the road. He claimed to be unable to move freely and spent most of his time in hiding. Despite the fact that he remained in Bangladesh for three months, the applicant also stated in his response asserted that he had to leave Bangladesh immediately to save his life. The Tribunal does not accept that he would have remained in the country for this length of time if he was in hiding, unable to move freely and harassed, assaulted, beaten, punched, kicked and thrown on the road. He claimed to be unable to move freely and spent most of his time in hiding. Again, the Tribunal finds the inability of the applicant to address the inconsistencies to be problematic. It further demonstrates to the Tribunal that the applicant was not a reliable witness and his claims about past harm and also the claims regarding his experiences in Bangladesh are not factual.

5. Tenthly, adding further weight to the concerns of the Tribunal is the reported political situation in Bangladesh at the time of the applicant’s returns in 2006 and 2012. The applicant told the Tribunal that he chose to return at these times as he wanted to try to resume his social work activities for the BNP. The BNP had been the ruling pollical party between 2001 and 2006;[3] on his evidence, the applicant did not attempt to return during this period. The applicant set out in his statement of February 2017, provided in relation to his first SHEV application, that when he returned in 2006, the country was heading to elections and the caretaker government was in control of the country. He also confirmed for the Tribunal that during his return in 2012, the Awami League was in power. The Tribunal further notes from the country information that it was a time of particular political instability[4] following the actions of the Awami League to abolish the non-party caretaker government provisions in July 2011.[5] When asked by the Tribunal why he thought that it would be safe to resume BNP activities at these times, the applicant was unable to provide a persuasive explanation. He offered that he thought that he would give it a try. The Tribunal is not persuaded that if the applicant had the profile that he claimed, and if he considered he was of ongoing adverse interest to the Awami League, he would return to Bangladesh at these times, and in particular with the intention of resuming what he considered to be BNP activity.

   [3] EASO COI Information Report Bangladesh – Country Overview, December 2017, at paragraph 3.12.

   [4] The Freedom House report, Freedom in the World 2013, covering events in 2012, published 31 January 2013, further commented that: ‘Political polarization and dysfunction continued to worsen during 2012, as the opposition held numerous street protests and threatened to boycott elections that must be held by early 2014 … The BNP-led opposition continued to intermittently boycott Parliament and rigidly oppose the AL government’s initiatives in 2012, resorting once again to the use of hartals and mass protests. More than 100,000 people participated in one rally in March [2012]. A key goal of BNP activism during the year was the reinstatement of the caretaker government system for the next elections, which must be held by early 2014.’

   [5] US State Department 2011 Country Report on Human Rights Practices, Bangladesh, released on 24 May 2012.

6. Eleventh, the Tribunal also had difficulties with the claims and evidence of the applicant regarding his attempts to seek assistance from the authorities in Bangladesh. When questioned at the Tribunal hearing on 11 October 2022, the applicant provided two specific examples of times he claimed to have sought the assistance of the authorities in Bangladesh in the past. In particular, he said that he had sought the assistance of the police a year before he departed Bangladesh in 1997, following a fight between the Awami League and the BNP when he was starting to do some work repairing a road, but the police had told him that these were trifling issues and that if there was a big problem to come back to them. He also gave evidence to the Tribunal that he had reported Awami League supporters to the police once more in 2006 and the police said that they would look into it but they did not take any physical steps. In both of his SHEV applications, the applicant claimed that he had gone with his family to the local police station and tried to lodge a general diary against the Awami League workers, but the police officer refused to take it and the officer said that he could not accept any complaint against a government party worker/supporter. In a statement provided to the Department on 25 February 2017, the applicant made claims that he was often harassed at his shop prior to his departure in 1997 by Awami League supporters, and he had reported incidents to the police but they refused to register his complaint. Then, during his interview with the delegate in relation to his first SHEV application interview on 28 February 2017, when the applicant was asked whether he had in the past reported the conduct of the Awami League to the police, he said no. When the applicant was interviewed by another delegate in relation to his second SHEV application, the applicant claimed that in 2012 he had tried unsuccessfully to report to the police assaults by the Awami League. Again, the applicant was invited to comment on the varied evidence and claims he had presented and the inconsistencies identified. In his response of 23 January 2023, the applicant did not address the inconsistencies. Instead, he claimed that he went with his family to lodge a complaint in 1996 and again in 2012 and these were not accepted. The Tribunal has weighed the varied evidence identified and the applicant’s response. The response does not address the concerns of the Tribunal or assist in reconciling the differing versions of his experiences as to whether he actually sought the assistance of the authorities in Bangladesh in the past, and if so, when and in what circumstances these requests for help occurred. The inability to reconcile these matters further demonstrates to the Tribunal that the applicant is not a reliable witness and his claims about his experiences in Bangladesh, his need to seek assistance and the refusal of his requests for help by the authorities in the past are not factual.  

7. Twelfth, the Tribunal also considers that the varied evidence of the applicant as to his experiences in [Country 1] undermines his reliability. During the Tribunal hearing, the applicant reported that after he returned to [Country 1] from Bangladesh in 2012, the Awami League had communicated with their supporters in [Country 1] and he experienced some harassment. When the Tribunal requested further clarification, the applicant gave evidence that this was only verbal harassment. Following the hearing, the Tribunal wrote to the applicant and invited him to comment on what the Tribunal considered to be inconsistent claims about his experience in [Country 1]. At his Irregular Maritime Arrival Interview on 1 December 2012, the applicant had stated that he had left [Country 1] and travelled to Australia as the salary provided was not enough and there was also the threat that, because he was illegal, if he was caught, the ‘goons’ would ask for money. The applicant also stated that even at times when he was legal in [Country 1], local bad people took money from him. Then, in his statement provided to the Department on 25 February 2017, prior to his first SHEV interview, he claimed that he was illegal in [Country 1] the last few years he was there, and he was always scared of the [Country 1] police and the immigration department, because if he was caught, he would be tortured and put in jail. He claimed that there were also many Bangladeshi living in [Country 1] at this time who were Awami League supporters, and one night they beat him up and threatened to inform the [Country 1] police about his illegal stay in [Country 1]. At his SHEV interview with the delegate, on 2 December 2020, he said that in [Country 1] some people from Bangladesh had found him; they were people from his village, and they threatened him. They came to know that he was there and they started to harass him and told him that they would kill him and he could not escape. The information in his statement provided to the Tribunal on 3 October 2022 contained a claim that he was threatened by the Awami League in [Country 1]. The Tribunal had concerns that the applicant had conflated harassment from local individuals in [Country 1] with harassment from Bangladeshi Awami League supporters in an effort to raise his profile. The Tribunal was also concerned that the harassment ranged from mere verbal abuse to physical beatings and threats to kill. In his comment in response received on 23 January 2023, the applicant appeared to adjust his evidence and maintained that he was always scared of the [Country 1] police and immigration department, and that there were also many Bangladeshi that lived in [Country 1] who beat him and threatened to inform the [Country 1] police about his illegal stay. The response provided by the applicant, which elevates both the harassment of the [Country 1] authorities and the Awami League members, is a noted shift in his evidence. The Tribunal considers that the applicant is trying to elevate his profile, and his experiences, to assist his claims for protection. The Tribunal does not accept the claims of the applicant that he was harassed, beaten or threatened with death by the Awami League in [Country 1]. It is not accepted that people from his village rang people that they knew in [Country 1] to harass the applicant. The Tribunal does not accept that if the applicant had been of interest to the Awami League since 1997, as he claimed, they would have waited until 2012 to approach him. The Tribunal does not consider these claims to be factual. It is accepted that the applicant may have feared the [Country 1] authorities due to his status of not having a valid visa at times, but the Tribunal considers that the applicant has fabricated his claims about ongoing harassment by the Awami League in [Country 1] to assist his claims for protection, and that they are not reliable or factual.

1. Thirteenth, the Tribunal is unable to place weight on the documents provided by the applicant to support his claims. It was noted that the Bangladeshi driver’s licence produced by the applicant was issued [in] 2011, identifying a date of birth that the applicant now claims is incorrect, that is, [Date 2]. The applicant was asked at the hearing how he came to obtain a licence issued on this date when he claims he was not in Bangladesh during 2011. The Tribunal also discussed with the applicant country information to the effect that the use of fraudulently obtained genuine documents remains widespread in Bangladesh.[6] The applicant conceded that the driver’s licence may not be genuine. He told the Tribunal that his brother had sent it to him when he was in Australia some time before his SHEV interview as he was thinking of doing some driving work. However, the applicant insisted that his other documents and in particular his letter of support from [Mr A], president of the BNP [specified Branch], were genuinely obtained by his brother. However, the Tribunal notes that this correspondence also refers to the applicant’s date of birth as [Date 2], and it states that the applicant had been an active member of the BNP in his related post for two years. The document is dated 22 April 2016. The applicant has been in Australia since 2012; he was not present in Bangladesh in the two years prior to the letter and could not have been active in the BNP at this time. If the applicant had actually become a member of the BNP, it is expected that genuine documents produced by the party would reflect this membership in the late 1990s, consistent with the claims of the applicant. Consequently, the Tribunal places no weight on this letter of support, and taking into consideration the totality of the applicant’s evidence and the various findings in relation to that evidence, the Tribunal is not satisfied that he was ever an actual member of the BNP party. 

   [6] DFAT Country Information Report – Bangladesh, 22 August 2019 at 5.39.

2. The applicant’s credibility is of central importance to the Tribunal in the determination of his applications for protection. As noted above, the Tribunal has been mindful of the time that has elapsed since the events the applicant is relying upon took place in Bangladesh. The Tribunal has also considered his experiences with the migration system, and his limited formal education. In assessing the totality of the evidence, the Tribunal considers that many of his written claims cannot be substantiated. Overall, the Tribunal’s adverse credibility concerns in relation to the applicant are so extensive and numerous that when cumulatively considered, the Tribunal is unable to give the applicant the benefit of the doubt. The Tribunal is not satisfied that he is a reliable witness or that his claims regarding his experiences in Bangladesh are factual. 

3. Therefore, while the Tribunal does not accept that the applicant was a member of the BNP in the past, it does accept that he may have supported them, along with members of his family. The Tribunal finds that any involvement with the BNP during the late 1990s was of a very low-level. It is not satisfied that he had active involvement for several years, that he was a popular or important person or that he had a profile that would make him a target for the Awami League. The Tribunal does not accept that he recruited members, that he campaigned door to door, or that he made speeches and organised protests, meetings or rallies. It is accepted that the applicant may have been present at some rallies, and observed some political harassment. The Tribunal does not accept that he was the victim or target or political harassment or a false case. It is not accepted that he was ever tortured, beaten mercilessly, attacked at a rally, threatened with death or harmed or mistreated by the Awami League in the past. Nor does the Tribunal accept the applicant held any fears about returning to Bangladesh in 2006 and 2012, or about departing from Bangladesh, based on his manufactured claims about his political activity and profile.

4. The Tribunal is not satisfied that the applicant had a profile of political interest to the Awami League or anyone else on his departure from Bangladesh in 1997, 2006 and in 2012.  It is not accepted that he faced harassment in [Country 1] from the Awami League. The applicant told the Tribunal when questioned at the hearing that he has also had no involvement with the BNP in Australia. He also said that he has not engaged in any social or charitable work. The Tribunal is satisfied that the applicant has done nothing to establish a profile since his last departure from Bangladesh in 2012. In considering the risk to the applicant upon returning to Bangladesh as a low level supporter of the BNP, the Tribunal has had regard to the applicant’s evidence in respect of his family members. He claimed, and the Tribunal accepts, that he comes from a family of BNP supporters. His father was a supporter and the Tribunal accepts the claims of the applicant that he followed his elder brothers in supporting the BNP. The applicant advised the Tribunal at hearing that his family still continues to support the BNP, yet it is the evidence of the applicant that nothing has happened to them since he has been in Australia. The applicant claimed to have weekly contact with his family, and at least four of his brothers continue to live with his mother in the family home. There are no claims by the applicant of any incidents of ongoing harm caused by the Awami League members or supporters in relation to the applicant’s family members. The Tribunal places weight on this to further support a finding that the applicant, who has essentially resided outside the country since 1997, will be of no interest to Awami League supporters or members if he returns to Bangladesh now or in the reasonably foreseeable future.

5. The Tribunal has also had regard to relevant country information and accepts that the applicant may prefer the BNP to the Awami League if he were to return to Bangladesh. However, as the Tribunal does not accept that he has been an active member in Bangladesh in the past, it does not accept that he would be an active member or actively support the BNP on return. Having regard to the fact that the applicant has not engaged in social work since he has been outside Bangladesh, a period of more than two decades, the Tribunal is not satisfied that the applicant has a genuine desire to undertake this activity, or that he would do so in a manner that would give him an adverse political profile.  Further, the Tribunal has had regard to the latest assessment of DFAT (in relation to which the applicant has not provided any further comment or response) that there are few examples of incidents that demonstrate a pattern of violence or discrimination against low-level BNP members, and that in relation to low-level actors, the nature of their activities is unlikely to attract attention in the first place.[7] Further, due to the patronage-based nature of Bangladeshi politics, the BNP has lost support (it has less to offer members), and therefore its influence has reduced and it has less capacity to hold mass demonstrations, further reducing its visibility.[8] The Tribunal finds that the applicant does not face a real chance of serious harm from Awami League supporters, the authorities in Bangladesh or anyone else because of his past or future support of the BNP on return to Bangladesh in the reasonably foreseeable future. His fears of persecution due to his actual or imputed opinion and being actively involved in the BNP in Bangladesh are not well founded.

   [7] DFAT Country Information Report – Bangladesh, 30 November 2022, at 3.82.

   [8] As above at 3.84.

6. The Tribunal then turned to consider the claims of the applicant as a failed asylum seeker. It is accepted that if his application for protection is refused, he will be considered a failed asylum seeker. The applicant has claimed he would be subject to harm for this reason. The Tribunal has hard regard to the DFAT advice, which has remained consistent in both the 2019 and 2022 Country Information Reports, that most returnees including failed asylum seekers are unlikely to face adverse attention regardless of whether they return voluntarily or involuntarily.[9] When asked at the hearing to comment on this information and the risk of harm he believed that being a failed asylum seeker would create, the applicant did not identify that being a failed asylum seeker would give rise to any issues. However, he made the claim that he presumed that he would be in great trouble because people would know that he had lived in a good country and they would think that he had earned a lot of money. The Tribunal has also considered the DFAT assessment that authorities in Bangladesh may take an interest in high profile individuals.[10] It is not accepted that the applicant would be a high profile individual. It is not accepted that the applicant has been actively involved with the BNP in Bangladesh or Australia in the past. Given these considerations and noting DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention, the Tribunal finds that the chance of the applicant facing serious harm upon return to Bangladesh as a failed asylum seeker is remote. His fear of persecution on this basis is not well-founded.

   [9]  DFAT Country Information Report – Bangladesh, 22 August 2019 at 5.30, and DFAT Country Information Report – Bangladesh, 30 November 2022 at 5.26.

   [10] As above.

7. As to the applicant’s claim that as a person who has worked and lived overseas or who is returning from a good country, he would be in great trouble as he would be perceived to be wealthy, this was only advanced by the applicant at his Tribunal hearing on 11 October 2022. The applicant did not claim that he had actual wealth, but the Tribunal does accept that the applicant has been outside his country for a number of years, and that he has been present and at times working in Australia since 2012. It has also had regard to the evidence of the applicant that several of his brothers had worked overseas for years in [Country 1], and that they have now returned to Bangladesh. The applicant has not made any claims that this period of overseas work has caused any issues for his family members. The applicant has not presented, and the Tribunal has not been able to locate, evidence of people returning from working overseas or wealthy people being harmed for this reason, or any related reason. The Tribunal takes note of the comments by DFAT that Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year.[11] The Tribunal acknowledges that the general security situation in Bangladesh is at a different level to Australia, and that extortion, theft and robbery can occur on a day-to day basis. The Tribunal finds that the applicant is not wealthy and does not accept that there is a real chance the applicant would face harm for reason of having lived and worked overseas or being perceived to be wealthy. Furthermore, if the applicant was targeted for the reason of his perceived wealth, this would be for the reason of obtaining illegal profit, and not for the reason of any intention to harm the applicant personally. It would not be persecution for a reason within the meaning of s 5J(1) of the Act.

   [11] DFAT Country Information Report – Bangladesh, 30 November 2022, at 5.25.

8. The Tribunal has also considered the claims of the applicant cumulatively and individually. For the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Bangladesh for the reasons he has claimed in the reasonably foreseeable future and finds that his fear of persecution is not well-founded.

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Is the applicant entitled to complementary protection?

10. 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).

11. For the reasons set out above, the Tribunal does not accept that the applicant’s claims about his experiences in Bangladesh are factual. It does not accept that he has any profile as a BNP leader or as a popular or important member of the BNP. It is not accepted that he was ever harmed in the past in Bangladesh for this reason. Although the Tribunal accepts that he may have been a low lever supporter, it is not satisfied that this past or any future support at the same level would give rise to a real risk of significant harm to the applicant.

12. Additionally, while it is accepted that the applicant would be perceived as a failed asylum seeker, the Tribunal is not satisfied that will give rise to a real risk of significant harm to the applicant. The Tribunal finds that the applicant is not wealthy, however it is also accepted that he has lived and worked overseas for a significant period. It is not accepted that he would be perceived as wealthy for this reason alone. This latter late claim is not demonstrated on his evidence or supported by country information before the Tribunal. As discussed above, while the Tribunal accepts that robbery and extortion do occur in Bangladesh, such incidents constitute criminal behaviour and not an intention to target the applicant for significant harm such that he would be arbitrarily deprived of his life, subject to the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

13. Having considered the applicant’s claims singularly and cumulatively, for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he would suffer significant harm.

14. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

15. 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 any of the criteria in s 36(2).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a protection visa in:

    1. application 1909552, for a Safe Haven Enterprise (Subclass 790) visa, filed on 29 February 2016; and
    2. application 2100098, for a Safe Haven Enterprise (Subclass 790) visa, filed on 27 September 2020.

    Penelope Hunter
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …