1915511 (Refugee)

1915511 (Refugee) [2023] AATA 2389 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Md Sirajul Haque (MARN: 9790005)
CASE NUMBER:  1915511
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:James Silva
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2023 at 6:00pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party and member of youth wing – campaign and local committee activity – attack by supporters of governing party, abuse and threats – vague, inconsistent and unsubstantiated claims and evidence – general preference for party and low-level activity – no change of residence, work or activities – return after first short stay in Australia – activity in Australia a mix of social and low-key political, and partly to support protection claims – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (b), (3)(c)(iii), (6), 36(2)(a), (aa), (2A), 65
CASES
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [Age] year old man from Bangladesh, who claims to be a citizen of that country.
He most recently arrived in Australia [in] June 2017, on a visitor visa. He applied for a protection (class XA) visa on 4 August 2017. On 31 May 2019, a delegate of the Minister for Home Affairs made a decision to refuse to grant a protection visa, under s.65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out below, in the attachment to this decision.
Claims and evidence
Protection claims
The applicant claims to be a member and supporter of the opposition Bangladesh Nationalist Party (BNP) and its youth wing. He claims that the ruling Awami League (AL) oppressed his party and, most significantly, that some AL cadres assaulted him in August 2014. He claims to have fled the country for his safety in April 2017 and, following a brief visit to Australia, again in June 2017.
The applicant claims to have been involved with BNP-affiliated groups in Australia, and that the Bangladesh government’s capacity to monitor the diaspora’s activities, especially online, adds to the risk of him being persecuted or significantly harmed if he returns to Bangladesh.
Background
The applicant is a [Age] year old man from [a village] in [Suburb], some [distance] from the capital Dhaka. He speaks Bangla (Bengali) and English, and describes himself as a Muslim Bengali.
The applicant attended primary school in [Village]. He commenced his Secondary School Certificate studies, but his father fell ill and the applicant stopped studying to become the family’s breadwinner.
The applicant worked in [Work] sector from [Year] until his departure for Australia in June 2017. From March 2003 to June 2017, he worked in a [Workplace] in Savar. His written statement and completed application form give differing details as to his prior employment, i.e. periods of employment, location and job description, but these are not material to this decision.
The applicant married in 2001. His wife and two [children], born in [Year] and [Year], remain in Bangladesh. The applicant also identified his parents and [siblings] as close relatives in Bangladesh. He is in regular contact with his family. His father died in November 2022.
The applicant holds a Bangladesh passport issued in [2016], valid for five years. He obtained an Australian visitor visa on 4 April 2017. He arrived in Australia [in] April 2017 and stayed for five days. He returned some eight weeks later, [in] June 2017. As noted above, he lodged his protection visa application on 4 August 2017.
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The applicant’s protection visa application (Form 866 and attachments), completed with the assistance of his representative. It has attached to it a two-page statement of claims dated 3 August 2017.
§ The applicant provided a copy of his Bangladesh passport, issued in Dhaka [in] 2016 and valid for five years. The applicant said that he has renewed the passport, through an agent who applied for him through the post.
§ The applicant attended a protection visa interview (Department interview) on 14 May 2019. The Tribunal has listened to the recording of the interview, which is on file.
§ The protection visa decision record (‘delegate’s decision’) of 31 May 2019. The applicant forwarded a copy of the decision to the Tribunal.
§ The review application form contains no new information or claims.
§ On 12 April 2023, the representative sent an undated pre-hearing submission, and the following supporting documents:
-   Photographs described as showing ‘the applicant along with BNP leaders in Australia’.
-   A letter dated 12 April 2023 from [Mr A], President of ‘[Organisation 1] Australia’.
§ The Tribunal received a large volume of country information, amounting to some 150 pages. These were file attachments to three emails.
-   The reports appear to be cover the period from March 2013 to November 2020 (although the Tribunal notes that some photographs appear to have been clipped from other sources, and have no reference dates). The sources include English language press reports from Bangladesh and abroad,
-   The emails variously state that the materials demonstrate ‘that the BNP leaders and activists are subject to oppression by the current regime’, ‘that fundamental rights have been curtailed for the citizens of Bangladesh’ and ‘the democratic situation of the applicant’s country of origin’.
-   Some of the pdf file attachments refer to the source of the report (eg. Amnesty International), but there is no commentary on the substance of the individual reports, beyond broad references in the submission to Bangladesh’s poor human rights record and the government’s pursuit of the opposition parties.
The applicant appeared before the Tribunal on 20 April 2023, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bangla (Bengali) and English languages, who was present at the hearing. The Tribunal took oral evidence from [Mr A] (referred to above) and [Mr B], both Australian citizens of Bangladesh origin who are in [Organisation 1] Australia.
The applicant is represented in this matter by his migration agent Dr Md Sirajul Haque of MS Haque and Associates. Dr Haque attended the hearing.
Receiving country
The applicant claims to be a national of Bangladesh. He holds a Bangladesh passport, and is familiar with that country. There is nothing to suggest he holds any other nationality. The Tribunal assesses his protection claims against Bangladesh as the receiving country.
Consideration of claims and evidence, and findings
Credibility
The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
The applicant’s claims and evidence, particularly relating to his activities in Bangladesh, were often vague, unsubstantiated and subject to revision. While he showed some general familiarity with local politics, his claims to have been personally involved with the BNP’s youth wing and to have been targeted lacked detail and supporting evidence. The applicant showed little interest in exploring whether such material may be available. The applicant’s circumstances as a whole – including his steady employment and stable residency, and his initial brief visit to Australia before returning to Bangladesh – strongly undermine his claim to have fled persecution or significant harm in Bangladesh, for political or any other reasons. Overall, the Tribunal formed the impression that the applicant was not engaged in trying to substantiate his claims relating to Bangladesh, relying instead on his activities in Australia as a basis for sur place protection claims.
The applicant’s representative and his witness [Mr B] impressed on the Tribunal that he has suffered mentally due to his separation from his family, citing his absence at his father’s funeral and his daughter’s wedding as evidence that he genuinely fears returning to Bangladesh. Mr Haque also noted that the Bangladesh economy had gradually improved, and the [Work] sector offered good employment opportunities. He tacitly invited the Tribunal to take this into account, and accept that the applicant was seeking protection due to a genuine fear of harm, rather than economic or similar reasons.
The Tribunal accepts that the applicant’s separation from his family and his migration uncertainty have been stressful. It also accepts that Bangladesh’s economy (particularly the [Work] sector) has improved, although, as the applicant intimated in his claims, the quality of life (including political stability and governance) lags well behind Australia’s. In the Tribunal’s view, these factors are of limited probative value in assessing whether Australia has protection obligations in respect of the applicant.
Overall, the Tribunal has significant concerns about the credibility of the applicant’s claims and evidence. Its full assessment follows below.
Political experiences and profile
Political interests and activities in Bangladesh
Political background
The applicant claimed in his statement of claims that he had been interested in politics ‘from the very beginning of [his] life’, and to have had a longstanding interest and engagement in the (now-) opposition BNP.
Context: Country information
The Department of Foreign Affairs and Trade (DFAT)’s most recent country report on Bangladesh[1] provides background information on the BNP within the setting of Bangladesh politics, which is broadly consistent with the materials provided by the applicant and Mr Haque during this review.[2]
[1] DFAT, Country Information Report – Bangladesh, 30 November 2022
[2] There was discussion at hearing on the separate issue of the Bangladesh government’s interest in the diaspora’s political activities abroad, considered below.
DFAT noted: ‘Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.’[3]
[3] Supra, no.1, para 3,65, p.20.
The report goes on to note the longstanding enmity between the two parties, including the deeply personal rivalry between their respective leaders, Prime Minister Sheikh Hasina (AL) and the BNP leader Khaleda Zia. Significantly, DFAT describes Bangladeshi politics as heavily based on patronage from political figures which, for most Bangladeshis, is far more important than ideology. This applies to party leaders and key figures. Also: ‘In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.’[4]
Political profile and activities
[4] Supra, no. 1, paras 3.66-67, p.20-21.
The applicant claims to have become involved in BNP politics; to have joined the party’s local youth wing (Bangladesh Jatiotabadi Jubodal, JBD) in about 2002; and to have later been appointed as the branch’s ‘publicity and publication secretary (2010 to 2017). The applicant’s evidence at the Department interview and at hearing suggested that he was somewhat uncertain as to dates and the sequence of events, as well as his (claimed) political responsibilities. With this in mind, the Tribunal explored whether he could relate his political work to other aspects of his life, and whether he had corroborative evidence.
As noted above, the applicant addressed general political matters in his statement and in the country information provided to the Tribunal, but there was little that directly pointed to, or supported, his claimed personal involvement.
At hearing, the applicant said that he became interested in BNP politics on his own initiative, rather than due to family tradition or any other circumstances. He said that he had heard stories of former BNP prime minister Ziaur Rahman’s direct involvement in the liberation struggle; the applicant believed this distinguished him from other political leaders. In terms of policy, he said that he agreed with the BNP’s focus on Islamic values, and he believed that they genuinely cared for the poor and homeless. He did not see these qualities in the other parties. The applicant’s comments about the BNP’s support for Islam is broadly consistent with country information about the party’s positioning. His comments about the leader’s personal qualities and the party’s benevolence may reflect the tone of Bangladeshi political advertising, but they do not shed light on the applicant’s own political opinion or conviction.
The applicant briefly referred to ‘political turmoil’ between AL and BNP supporters, during the period 1998 to 2003, when he worked in the [Workplace]. The Tribunal notes that the AL was in power from 1996 until 2001, when the BNP won a two-thirds majority. This appears to be around the time when the applicant claims to have been politically engaged, but it is not clear whether any such ‘turmoil’ affected him directly, at work or elsewhere.
2001 parliamentary election: The applicant wrote in his original statement of claims that he campaigned during the 2001 parliamentary election for the successful BNP candidate, [Mr C], who defeated the AL candidate [Mr D]. This appears to have been the beginning of his political engagement.
At hearing, the Tribunal asked the applicant for details of the BNP candidate(s) he had worked for, in 2001 and in other elections; their AL rivals; the successful candidate; and the name of the constituency. The applicant named [Mr C] as the BNP candidate in both 2001 and 2008. He named the successful AL candidate in both 2001 and 2008 as [Mr D]. However, he appeared somewhat uncertain when asked whether [Mr D] still held the seat (he eventually named the current MP), and what the official name of the constituency was.
The applicant said that in the 2001 parliamentary election campaign, he used to be in the front row at rallies, and lead the chant. This caught the attention of the leaders of the BNP’s youth wing in [Union] and was the start of his more serious political engagement.
2002: Bangladesh Jatiotabadi Jubodal (JBD) Membership: The applicant claimed that after the general elections, in which the BNP won a majority, the leaders of the JBD [Union] branch invited him (and others) to join them. From that time, the applicant used to participate in occasional meetings, leaving his workplace early if he needed to. In response to the Tribunal’s questions, he said that his employer knew about his political commitments and usually let him have time off, provided he made up the time later. He said that the JBD [Union] branch was quite large; there were more than 50 members.
2008: parliamentary election: The applicant claims that he again campaigned – ‘made good effort’ – during the 2008 elections, again for the local BNP candidate, [Mr C]. He told the Tribunal that during the campaign, he personally visited each of the [wards] in [Union], and gave instructions to the campaign teams. The Tribunal asked whether, in light of this work, he still maintained contact with [Mr C] or his staff. In reply the applicant said that he had contact with the president of the local (‘police station’, an administrative sub-division of the union) JBD some time ago, but they have since lost contact. The Tribunal queried the applicant’s reference to having visited wards (or, it would seem, have had some role in coordinating the local campaign) in his capacity as publicity secretary in 2008, when he did not take on that position until 2010. In reply he said that during the 2008 campaign, he used to encourage his like-minded colleagues at work to attend BNP rallies.
2010-2017: JBD ‘publicity and publication secretary: The applicant claimed that in 2010, he became the JBD [Union] branch publicity and publication secretary, a position that he held until his departure from Bangladesh in June 2017. He submitted to the Department two letters, one dated 9 May 2019 from the JBD [Suburb] Thana President, and one dated 10 May 2019 from [Mr E], Member Secretary of [Organisation 2], briefly confirming that the applicant held this position.
The Tribunal asked the applicant whether he had any corroborative evidence from his (claimed) long period as a JBD ordinary member, and later publicity secretary. He replied that he did not, noting that there were few mobile telephones at the time. He did not offer any other form of corroboration, such as examples of publicity material. Asked about any ongoing contacts with former political colleagues, he replied that he is no longer in contact with them. He said that he used to call them, but many are facing false criminal charges and/or are in hiding.
Assessment
The Tribunal found the applicant’s knowledge of local politics to be consistent with that of a reasonably well-informed resident.
In considering whether he was actually a political activist, it makes allowance for the passage of time, and the possibility that the applicant may not recall specifics relating to timelines and electoral details. Even so, it found his account of his activities as a JBD member and later publicity secretary to be scant, uncertain and changeable. Aside from a brief letter of support from a person claiming to be the current local JBD president, and assertions from others, there is no contemporaneous evidence of the applicant’s political work from 2002 to 2017. The Tribunal notes the applicant’s claim to have been actively involved in the JBD since 2008, including for seven years as its publicity secretary. Despite the AL’s government’s harsh crackdown on the opposition generally, and high levels of political violence between the major parties’ youth wings, he appears to have had stable living and working arrangements, with minimal adverse impact despite his claims work for the BNP’s youth wing. The Tribunal detected no real interest on his part in either substantiating his claimed past work for the party, or in demonstrating an effort to contact former political colleagues (apart from the provision of a brief letter of support in May 2019).
The above concerns cast doubt on the applicant’s claims to have been a committed BNP supporter, and a member and activist of the local youth wing. The Tribunal proceeds now to consider his other claims and evidence – relating to his activities in Australia, and his adverse experiences in Bangladesh – before making findings about the applicant’s profile.
Political activities in Australia

The applicant presented evidence of his association with the BNP in Australia, stating it is relevant to two aspects of his case: (a) his political activities here show his conviction, and are therefore relevant in assessing his past profile in Bangladesh; and (b) they will be of adverse interest to the Bangladesh authorities, thereby putting the applicant at (further) risk of persecution or significant harm. The Tribunal now assesses his political activities in Australia, insofar as they are relevant to the strength of his political conviction.
Primary application: The applicant’s protection visa application, lodged some two months after his second arrival in Australia, referred only to the applicant’s experiences and profile in Bangladesh.
Material before the delegate: The applicant submitted to the delegate, in May 2019, a letter from [Mr E], Member Secretary of the ‘[Organisation 2]’ which restates aspects of the applicant’s claims relating to Bangladesh. [Mr E] wrote that he has known the applicant since his arrival in Australia in mid-2017, adding that ‘he continues to participate in BNP activities in Sydney, aiming to foster Bengali political culture’. There were no further claims or evidence and no substantive consideration of any activities he may have undertaken in Australia.
Material submitted to the Tribunal: The pre-hearing submission to the Tribunal addresses aspects of the applicant’s activities in Australia, stating that he ‘has been actively involved with the BNP in Australia’, with no further details as to what this involvement was or is.
The applicant submitted to the Tribunal photographs and a letter of support.
§There is a total of ten group photographs, which show the applicant in various BNP settings in Australia. The captions contain little information, except that one identifies a ‘[Mr F]’ and another a [named person] as BNP leaders. They include the following:
    Two photographs at what appears to be a restaurant with a BNP poster (the same poster features in several of the other photographs).
    The applicant standing behind a meeting table with about a dozen other men, with a political poster on the wall.
    The applicant at a Sydney park, as part of group of some 12 to 15 people (men, woman and children), standing behind the same poster.
    The applicant is in a group photograph on what appears to be the stage of a community hall; the signage and participants suggest that it was a kind of Australia-Bangladesh meeting.
§ [Mr A], President of the [Organisation 1] Australia, certified [in] April 2023 that he has known the applicant since 2019, as an active member of [Organisation 1] and participant in all their activities. [Mr A] described the [Organisation 1] as a social [organisation].
At hearing, the applicant and his witnesses provided further information about his involvement with the [Organisation 1] and other BNP groups, since arriving in Australia in June 2017.
The applicant confirmed that he had joined [Organisation 1] and other BNP-associated groups in Australia. He agreed with the Tribunal’s observation that the photographs and letters of support suggested that these groups were mainly social in nature, although the participants share pro-BNP views (as evidenced by the banners that appeared in the photographs).
§ He later went on to state that at least some of the activities he had taken part in were overtly political, and would be of adverse interest to the Bangladesh authorities.
§ The applicant described his recent participation in a video conference a month or two before the hearing, between BNP Secretary-General Mirza Fakhrul Islam Alamgir and BNP supporters in Australia. It was difficult to follow the applicant’s narrative, and Mr Haque provided some additional comments. It appears that a large number of BNP supporters in Australia had attended the video conference, and footage of it had been shared on social media a few weeks later. As the applicant did not submit any supporting evidence, the Tribunal is unable to confirm that his image is visible, who it was shared with and/or if it is generally accessible.
§ Similarly, the applicant referred to having posted political material on [Social media], although it later became clear that he ‘shared’ items that others had posted. Again, in the lack of supporting evidence, the Tribunal is unable to gauge the significance of the material, or the extent of its distribution,
§ During the exchange as to the nature of these activities, the applicant and Mr Haque pointed to the political dimension to these activities, such as lobbying Australian politicians to take a firm stance against Bangladesh’s human rights abuses. One example was the group photograph showing some Australian politicians who had attended what appeared to some kind of BNP-related community forum. The applicant appears on stage as part of the group photograph of this event. The applicant invited the Tribunal to take this (and the other photographs) as evidence of his political commitment, but he and Mr Haque contended, more emphatically, that the Bangladesh authorities would regard his participation at an anti-AL event in Australia as a matter of adverse interest.
In their oral evidence, [Mr A] and [Mr B] confirmed their roles within [Organisation 1] (as the president and a member, respectively), and gave some background information about the various BNP-associated groups in Sydney. They both attested to the applicant’s participation in [Organisation 1].
§ [Mr A] described [Organisation 1]’s role as mainly social, and seemed to suggest that it does not actively engage in politics.
§ [Mr B] claimed that the applicant was involved in BNP groups from the time of his arrival in Australia; that he was genuinely committed to the party; that he participated in a range of activities; and that he also donated money. He said that discussions within the Forum are often political, and that the group had been involved in the lobbying of Australian parliamentarians.
The Tribunal accepts [Mr A]’s and [Mr B]’s evidence that they regard the applicant as a genuine BNP supporter who has participated in various [Organisation 1] and BNP-related activities in Australia. The Tribunal formed the view that these men have accepted the applicant’s statements in good faith, and relied in part on their own observations. At the same time, it appears that they do not have direct knowledge of the applicant’s (claimed) profile in [Union]. The Tribunal accepts and gives due weight to [Mr A]’s and [Mr B]’s endorsement of this application, including their wish to assist a like-minded Bangladeshi to secure protection, and their criticism of the ruling AL government.
The applicant’s account of his involvement with BNP-linked groups in Australia is generally consistent with his claim to prefer the BNP. However, considering that he has been in Australia for some six years, the material that he has provided – such as his oral evidence, the letters of support, witness evidence and photographs – are of limited value in assessing the strength of his political opinion, and in particular whether it is the continuation of any political engagement in Bangladesh. In the Tribunal’s view, there is little that shows the timing, frequency and depth of the applicant’s engagement in such groups; and whether he has any role beyond that of a participant in mainly social functions.
The Tribunal alerted the applicant to the operation of s.5J(6), which requires it to disregard his conduct in Australia when assessing whether he has a well-founded fear of persecution for a s.5J(1) reason, unless he satisfies the Tribunal that he engaged in it otherwise than for the purpose of strengthening his claim to be a refugee. The applicant and Mr Haque impressed on the Tribunal that his political conviction was genuine.
The Tribunal finds that the applicant has engaged in this conduct for multiple purposes, one of which is to socialise with other Bangladeshis who favour the BNP, and another of which has been to elicit letters of support and photographs to support his claims to be a refugee. The Tribunal is therefore satisfied that this conduct does not fall within the scope of s.5J(6).
Consideration
The Tribunal accepts as plausible that the applicant prefers the BNP, taking into account (among other things) that the BNP is one of Bangladesh’s mainstream parties, the applicant’s familiarity with local politics in his area, and his association with BNP groups in Australia. However, it has misgivings about his claims to have been an active member in the BNP’s youth wing in [Union] from around 2002, to have campaigned for successive BNP candidates, to have been appointed as its publications and publicity secretary since 2010. It considers these claims, and makes findings, below.
Adverse experiences in Bangladesh
In his written statements, the applicant referred to the general political climate in Bangladesh during his years of (claimed) political work for the BNP. He was able to pursue his interests during the period of BNP rule, but the transfer of power to the caretaker government in 2006 resulted in ‘serious political chaos and turmoil’ throughout the country, including the arrest of the BNP leader Begum Khaleda Zia and of other BNP leaders and activists, and the attempted killing of Tarique Rahman (Khaleda Zia’s son, who fled to London in September 2009 amidst corruption allegations).
In relation to the December 2008 general elections, which resulted in a landslide victory for the AL, the applicant claimed that the military had ‘designed and fabricated them’. He did not claim to have suffered any harm personally, in the aftermath of the AL election win, or around the time of the following general elections in January 2014 (which were preceded by a government crackdown on the opposition, and which the BNP and other opposition parties boycotted).
Attack, August 2014
The applicant wrote that [in] August 2014, AL cadres, led by a [Mr F], attacked him while he was on his way from home. The attack happened at [Location] at 7:00pm. The men punched and kicked the applicant, leaving him unconscious on the street. He woke up in a clinic, where he received treatment for one week.
At hearing, the applicant said that he had been at a tea shop with some local people, waiting for a bus. They were discussing politics; the applicant said that these were people who used to accompany him to meetings in the local area. The local AL leader [Mr F][5] appeared, with some 14 or 15 people, and starting punching the applicant (as well as his travel companions). The applicant did not reply directly to the Tribunal’s question as to what [Mr F] said, but said that [Mr F] knew him well and was aware that he played a key role at political rallies. The applicant said that the attackers punched him in the head and kicked him in the abdomen, until the applicant lost consciousness. Asked about any injuries, the applicant said that he had a rib fracture, and cuts to the elbow. He spent about a week in the clinic. The applicant did not have documentation, but said that he may still have a chest x-ray somewhere.
[5] The applicant indicated this was the president of the BNP party proper, not its youth wing.
As the Tribunal signalled at hearing, it has misgivings about this claim. Given the applicant’s (claimed) association with the JBD since 2010, and against the backdrop of regular political violence between the two main parties and their youth and student wings, there is no obvious context for what the applicant presented as an unprovoked attack by the local party leader in a public place, in 2014.
August 2014 to April 2017
The applicant indicated that after he was discharged from the clinic, he returned to work at the [Workplace].
In response to questions, he said that he did not report the incident to the police, noting briefly that they are all AL. He informed the local JBD president and other political colleagues, who visited him in hospital and expressed regret for what had happened; the implication was that they were unable to help in any other way.
The applicant confirmed that his and the family’s living and working arrangements remained unchanged after the attack. Asked about any precautions, he said that his family members went in person to [Mr F], and gave him the assurance that the applicant would no longer engage in political work. The applicant said that he in fact continued his political work, but was not as active as previously. Other JBD colleagues had similar experiences.
At hearing, he said that there were no further incidents apart from the August 2014 assault. He then qualified this to say that, while there had been only one assault, he was subject to verbal abuse and threats on an ongoing basis. He noted that AL people lived in his area, and they could simply make their opponents disappear. Throughout the exchange, the Tribunal had the impression that the applicant had not given these matters much thought, and was improvising in his responses.
April to June 2017: Departure from Bangladesh, return and renewed danger
Departure: April 2017: As noted in the delegate’s decision record, the applicant was granted a visitor visa on 4 April 2017, and arrived in Australia [Number] days later, [in] April 2017.
At the Department interview, the applicant said that he fled Bangladesh for his safety. At hearing, he said, somewhat more vaguely, that he had wanted to find a safe place to live. The Tribunal does not detect any real inconsistency in the applicant’s responses, although the former suggests imminent danger and urgency. Subsequent events – namely, the applicant’s brief stay in Australia before returning to Bangladesh, and his return to Australia some two months later – suggested that the applicant’s travel from Bangladesh was not in fact a response to any threat, but rather part of a more considered plan to migrate.
Return to Bangladesh: As noted in the delegate’s decision record and discussed at hearing, the applicant spent five days in Australia, before returning to Bangladesh [in] April 2017.
At hearing, the applicant explained that after he departed Bangladesh, local AL leaders came to know that he had gone to Australia and came asking after him. Speaking through his family, they asked him to return and promised not to harm him, so long as he refrained from political activities. He returned to Bangladesh on the strength of these assurances. The Tribunal put to the applicant that it was difficult to believe that he was prepared to trust the people who were threatening him, or (if he was an ardent BNP supporter/member, as claimed) that he was willing to comply with the condition not to engage in politics. The applicant replied that he had been homesick and missing his family. He noted that he did not trust the AL cadres completely.
Renewed threats: The applicant claims that on his return, he realised that his life was still in danger. He returned to Australia some seven weeks later, [in] June 2017.
At hearing, the applicant said that on his return to Bangladesh, he resumed work at the [Workplace] and kept working until his second departure in June 2017. The AL cadres repeated their warning for him not to engage in politics, and reminded him of their assault in August 2014. He complied, although he had some discussions with party colleagues about re-opening the local BNP branch office. The Tribunal put to the applicant that his stay for almost two months suggested that he was finishing up at work and making orderly arrangements to migrate, rather than fleeing persecution or significant harm. He replied that he was in fact in ‘hiding’, and avoided public exposure. At the time, the media was reporting that the AL was compiling lists (i.e. black lists, or hit lists) of BNP supporters at the local (union) level. This intensified the applicant’s fear, and his resolve to leave Bangladesh for his safety.
Consideration
The Tribunal has significant concerns about the applicant’s claims of past harm in Bangladesh. First, general country information indicates that the youth wings of the main political parties engage in political violence, on an ongoing basis. At one level, this supports the applicant’s claim of a brazen attack in a public place in August 2014. However, it does not sit well with the applicant’s other claims that the rest of his political work – from about 2001 to 2017 – was mostly without incident. Second, the applicant’s evidence about the alleged attack in August 2014 seemed vague. The applicant appeared to be waiting for the Tribunal’s prompts and thinking on his feet, rather than recalling a personal lived experience. Third, the applicant’s steady work and residential arrangements throughout this period, during which the AL government clamped down on the opposition BNP and its affiliate groups, including the youth wing, adds doubt to his claims. Finally, the Tribunal finds the applicant’s conduct – in particular, his return to Bangladesh after just five days in Australia, and his stay there for almost two months before returning – inconsistent with his claim to have been assaulted in August 2014, and to have engaged in politics in a climate of fear.
Taking all of these concerns together, and given also the Tribunal’s doubts about the applicant’s political interests and activities in Bangladesh, it does not accept that the applicant was assaulted in August 2014; or that he was subject to ongoing adverse interest by AL associates (including the local AL party leader, or youth wing activists, or anyone else); or that he engaged in political activities in fear; or that he had to refrain from political activities after the August 2014 attack, to reduce the risk of further violence. The Tribunal does not accept any associated claims of past harm.
The Tribunal concludes that the applicant left Bangladesh for reasons unrelated to his protection claims; that he returned to Bangladesh to resume work and continue arrangements for his move to Australia (and not subject to any assurances for his safety); that he resumed work there; and that he left Bangladesh again some two months later, also for reasons unrelated to his claims.
Findings of fact
In light of the above analysis, of the applicant’s political interests in Bangladesh, his adverse experiences there, and his activities in Australia, the Tribunal makes the following findings:
§ The applicant prefers the BNP, due largely to the profile of local leaders in Savar and his attraction to the party’s general positions. However, the applicant has not been directly involved in any political activities (such as campaigning and attending rallies), has not been a member or office bearer in the BNP or its youth wing, and has not promoted the party in any other context (such as at work).
§ Like all Bangladeshis, the applicant has lived through periods of political turmoil, including during the caretaker government period (2004-2006) and in the wake of the December 2008 elections. However, he has not been directly affected (for instance, by any heightened tension with rival political or youth wing counterparts, or by being forced to refrain from political activities).
§ There was no attack in August 2014, and no other circumstance that prompted him to leave Bangladesh ‘for his safety’, in April 2017 or June 2017.
§ He has no subjective fear of being persecuted or significantly harmed if he returns to Bangladesh, including for political reasons.
§ The applicant has participated in a number of events in Australia hosted by the [Organisation] and other groups linked with the BNP, and recently joined in an online video conference with the BNP Secretary-General, as part of a large event. It finds that he has mainly done so for social reasons, to meet up with like-minded Bangladeshi expatriates, but that his wish to obtain evidence for his protection visa application (such as photographs and witness statements, and to associate himself with events that might bolster his protection claims) is also a major factor. This conduct does not fall within the scope of s.5J(6) of the Act.
§ The applicant’s interest in the BNP has not evolved during his stay in Australia. The applicant’s political engagement is low, and his interest in the BNP is only one of general preference.
Assessment: Refugee criterion

To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a). The Tribunal assesses this in light of the applicant’s past circumstances in Bangladesh, his current interests and profile, and having regard to other relevant factors such as his future conduct and country information.
The applicant claims to fear harm from the ‘current regime’, which the Tribunal understands to mean the ruling AL government, the AL party and agents acting on behalf of these.
At hearing, the applicant said that he cannot return to Bangladesh, and declined to discuss his future conduct if he were to go back. He referred to the pain of being separated from his family, implicitly requesting that they be permitted to join him in Australia. The Tribunal finds on the limited available material that the applicant would return to the family home in [Suburb], and look for employment in the thriving [Work] sector in Savar.
For the reasons stated above, the Tribunal accepts that the applicant prefers the BNP, but does not accept that he has any further political engagement beyond this; that he joined the BNP youth wing, or had any other prominent role in processions or other party activities; that he attracted the adverse attention of the opposition AL; or that he was subject to an assault or other harm. Furthermore, it finds that he left Bangladesh, in April 2017 and again in June 2017 for reasons unrelated to his protection claims. The Tribunal concludes that the AL government and party, and their agents and cadres, have no adverse interest in the applicant based on his past activities or profile in Bangladesh.
The Tribunal does not accept that the applicant has any political opinion in favour of the BNP that has in the past, or that will in the future, motivate him to engage in political activities, including within the BNP party or its various wings (such as the youth wing); by way of personal involvement in campaigns, processions and other public activities; or through otherwise expressing any pro-BNP or anti-government views. In reaching this view, the Tribunal takes into account the applicant’s involvement with BNP-branded groups in Australia. It finds that the applicant’s main motivations for attendance at these events have social (to meet and find support from other Bangladesh expatriates who support the BNP) and to garner support for his protection visa application. The Tribunal is not satisfied that the applicant’s involvement in these groups in Australia reflects a genuine political engagement that would inform his activities if he returns to Bangladesh.
Given the Tribunal’s assessment that the applicant’s level of political interest is low, and that he will not be motivated to engage in political activities if he returns to Bangladesh, the question does not arise of him having to alter or conceal his true political beliefs, or refrain from any activities, in order to avoid a real chance of persecution: s.5(3)(c)(iii) and s.5(3).
The applicant, Mr Haque and his witnesses impressed on the Tribunal that his activities in Australia give rise to a real chance of persecution. In the submission received on 13 April 2023, Mr Haque contended that ‘the applicant’s conduct in Australia separately creates a real chance that [he] will face serious harm if he is required to return to Bangladesh’. For the reasons stated above, the Tribunal finds that this conduct does not fall within s.5J(6) of the Act.
The Tribunal accepts that the applicant has attended events of [Organisation 1] and, earlier, [Organisation 2]. These have included meetings in halls, gatherings in public parks and restaurant visits, with BNP banners shown prominently. The Tribunal also accepts as plausible that he has made donations to these groups, that he has shared some relevant material online through a [Social media] or other social media account and that he has participated in one or more online discussions. However, the Tribunal notes its earlier finding that the applicant was not politically active in Bangladesh. Moreover, despite the applicant’s and his witnesses’ broad statements, the corroborative evidence of his political involvement over almost six years in Australia is weak, and mainly limited to his appearance in group photographs on several occasions. The Tribunal is of the view that the applicant and his witnesses gave somewhat exaggerated accounts of the extent of his involvement, and hence his profile.
There was extensive discussion of this claim at the hearing. The Tribunal drew attention to the following excerpts from the most recent DFAT country report on Bangladesh (November 2022) [6],, which it considers to be a fair reflection of views from other sources.
§ On the treatment in Bangladesh of the BNP opposition generally, DFAT stated[7]:
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.[8]
§ In terms of the Bangladesh government’s monitoring of its nationals activities abroad, including anti-government lobbying, DFAT summarised the situation as follows[9]:
Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities
[6] DFAT, Country Information Report – Bangladesh, 30 November 2022
[7] DFAT, Country Information Report – Bangladesh, 30 November 2022
[8] Ibid, para 3.84.
[9] Ibid, para 5.25
The Tribunal explored with the applicant, Mr Haque, [Mr A] and [Mr B] whether they were aware of any independent reports that the Bangladesh authorities have pursued returning citizens, on the basis of their activities abroad.
§ The applicant did not have any such reports but, in response to the Tribunal’s questions, noted that he has shared political materials through his [Social media] account. (The Tribunal considers these, and similar claims, below.)
§ Mr Haque emphasised the ease with which the Bangladesh authorities can monitor social media and other online materials, and their undoubted sensitivity to public statements by Australian politicians critical of Bangladesh’s human rights record.
The Tribunal advised that its assessment of the applicant’s sur place claims (insofar as they did not fall within s.5J(6) would take into account: (a) the applicant’s prior profile in Bangladesh; (b) the nature and extent of his activities in Australia; and (c) any reports (particularly verified independent reports) as to the Bangladesh authorities’ targeting of returnees on the basis of activities abroad. During the exchange, the applicant and Mr Haque addressed these; the applicant’s witnesses also touched on them.
§ The applicant and Mr Haque drew to the Tribunal’s attention a recent videoconference that the applicant had attended about a month earlier, between the BNP Secretary-General in Bangladesh, Mr Mirza Fakhrul Islam Alamgir, and members of the Bangladesh diaspora (BNP supporters) in Australia. In response to questions, the applicant said that a large number of BNP supporters attended by video.
Mr Haque said that the video recording had been posted on the internet. The applicant’s face was visible, and as a result, many people came to know of his position in this pro-BNP, anti-government event,
The applicant added that a week or two later, some people started threatening his family (he mentioned his son in this context). He said that his family had not faced any such previous threats, i,e. this was a new and unexpected development, linked to his participation at the BNP videoconference.
§ Mr Haque also pointed to the group photographs showing the applicant at various BNP events in Australia. Of particular interest were two where the applicant appears in a group photograph together with [Mr F][10], described as ‘BNP leader’, with several Australian politicians, at what appears to be an Australian-Bangladeshi forum. He posited that the Bangladesh authorities would have an adverse interest in groups or individuals who were actively lobbying abroad, against the interest of the AL-led government.
§ [Mr A] described [Organisation 1] as a social group for like-minded Bangladeshis, without any political agenda. He opined that the Bangladesh authorities could target anyone supporting the BNP or opposing the government. Asked whether he was aware of any active monitoring of [Organisation 1] or similar groups, he said that he had heard of the authorities monitoring the diaspora during the visit of Prime Minister Sheikh Hasina in April 2018.
§ [Mr B] spoke more expansively of [Organisation 1]’s (or its members’) political work, such as lobbying parliamentarians, hosting discussions and seminars, and the like. He said that the media (in Australia and Bangladesh) report on these activities. Asked whether, to his knowledge, the Bangladeshi authorities monitor such activities and pursue participants, he said that this does happen, although he does not have specific evidence of it.
[10] This appears to refer to [Organisation 2], whose Member Secretary [Mr E], wrote a letter of support for the applicant [in] May 2019. This is one of several groups in Australia claiming to represent the BNP.
The Tribunal finds that the applicant’s links with BNP groups is mostly social, although he broadly shares the political views of their members. Insofar as he has attended gatherings with political content, appeared in group photographs, shared material online and otherwise shown his links with these groups, the Tribunal notes that he holds no formal responsibilities and finds that his participation has been occasional and low-key.
In the Tribunal’s view, it is not possible to know the extent to which the Bangladeshi authorities monitor activities that it perceive to be pro-BNP or anti-government. However, the Tribunal finds that even if they were to become aware of his presence at one or more of these events, there is no real chance of the Bangladesh authorities taking an adverse interest in the applicant and pursuing him on his return to Bangladesh. In reaching this conclusion, the Tribunal places weight on its finding that the applicant has no past political engagement or profile in Bangladesh, and that he has not acquired any profile or influence in Australia.
Having considered the applicant’s claims and evidence individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm for reasons of his political opinion, including for reason of any past profile, or his more recent association with BNP-associated groups in Australia. It concludes that he does not have a well-founded fear of persecution within the meaning of s.5J(1)(a) and (b).
The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Bangladesh.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Assessment: Complementary protection
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
The applicant’s claims for complementary protection arise from the same facts that he relies on in relation to the refugee criterion, namely his pro-BNP and anti-government political views, and his past and current profile. Based on the above findings, including in relation to the applicant’s conduct in Australia, the Tribunal is not satisfied that there are substantial grounds for believing that he faces a real risk of significant harm due to any of the circumstances set out in his protection claims. The applicant’s claims relate to some extent to Bangladesh’s political stability, governance and human rights in the broadest sense. However, the Tribunal is not satisfied that the applicant faces a real risk of significant harm as a result of these general conditions in Bangladesh (as defined by s.36(2A). Moreover, even if it were satisfied that there is such a real risk, s.36(2B) would require that there is taken not to be a real risk, as the real risk is one faced by the population of Bangladesh generally and is not faced by the applicant personally: s.26*2B(c).
Having regard to the above assessment of his circumstances and concerns, the Tribunal concludes that there are no substantial grounds for believing that the applicant will be subject to harm from the AL government, its politicians and supporters, or anyone else, if he returns to Bangladesh, including as a result of any past profile or due to his activities in Australia.
The Tribunal therefore finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on him such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no grounds that suggest he will be subject to significant harm, for any reason, if he returns to Bangladesh.
Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm, as required by s.36(2)(aa).
Conclusion
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).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member
Attachment - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2389

4 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Natural Justice

Standing