2005913 (Refugee)

[2021] AATA 5302

2005913 (Refugee) [2021] AATA 5302 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005913

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Haag

DATE:26 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2021 at 10:50am

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – political opinions – membership of the main opposition party the BNP – not a high-profile member of the BNP and anti-government activist – wealthy businessman – significant inconsistencies in evidence –credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 201 FCR 505

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 a decision made by a delegate of the Minister for Home Affairs on 10 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 18 August 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a refugee, or that there exists a real risk of the applicant suffering harm upon his return to Bangladesh.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this case are whether the applicant meets the refugee or complementary protection criteria. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

10. The applicant claims, and the Tribunal accepts, that he is a national of Bangladesh. He was born on [date] in Dhaka, Bangladesh. A copy of his passport, which he provided to the Department, corroborated this claim. There is no evidence to suggest the applicant’s passport is a bogus document.

11. The Tribunal is satisfied that the applicant would be recognised in Bangladesh as a national of Bangladesh, and that the applicant is a national of Bangladesh. Accordingly, the Tribunal finds Bangladesh is the applicant’s receiving country for the purposes of s 36(2)(aa) of the Act.

12. There is no evidence to suggest that the applicant has a right to enter and reside in a country other than Bangladesh, and accordingly, the Tribunal finds that the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.

13. The

    Tribunal convened hearings to consider the merits of the review application on

    
    

    22 September 2021. The applicant participated in the hearing before the Tribunal via video conference. The applicant was assisted in the hearing by his representative, who also participated in person. The Tribunal was assisted in the hearing by an interpreter in the English and Bengali languages.

14. The applicant provided the Tribunal with a copy of the record of the delegate’s decision for the purposes of this review.  The Tribunal has read the decision.

    Applicant’s background and visa history

15. The applicant stated that he was married [in] August 1998 and has three children. His wife and children are not included in his application for a protection visa. The applicant stated that he is Sunni Muslim in terms of faith, and can speak, read, and write English and Bengali.

16. The applicant arrived in Australia on [date] November 2015 at [age] years of age as the holder of a visitor visa, which ceased [in] December 2015.

17. On 18 August 2016, the applicant applied for a protection visa. The application was lodged nearly nine months from the applicant’s arrival in Australia.

    Protection claims

18. In seeking protection, the applicant’s claims for protection may be summarised as follows:  

    ·The conflict between the Bangladesh Nationalist Party (BNP) and the Awami League (AL) causes an ongoing rift between the people of Bangladesh;

    ·The current Prime Minister of Bangladesh, Sheikh Hasina, is the head of the AL;

    ·The AL controls the government of Bangladesh and it did so during the period the applicant was politically active in Bangladesh as a member of the BNP;

    ·Sheikh Hasina’s family was killed in 1975 by the then President of Bangladesh;

    ·Sheikh Hasina still pursues and executes those she believes are responsible for her family’s killing;

    ·Sheikh Hasina, and the AL more broadly, believe that current members of the BNP are remnants of the military coup that killed her family;

    ·The applicant’s family are BNP supporters and live in an area that supports the BNP;

    ·The applicant’s [relative] was a [government official] in a regional area;

    ·The applicant joined the BNP in June of July 2013;

    ·The police are corrupt, and the authorities do not care about anyone who supports the BNP;

    ·People the government thinks are part of the BNP can be arrested, tortured, killed or caused to disappear;

    ·He knew he had no choice but to leave Bangladesh and come to Australia; he could not keep bribing the police not to arrest and prosecute him; and he was at risk of being murdered by police under the pretext of the police shooting him in ‘crossfire or a police ‘encounter’;

    ·The applicant fears that if he returns to Bangladesh he would be arrested by the authorities at the airport and unjustly prosecuted; and

    ·His life will be at risk if his visa application is refused, and he is removed to Bangladesh;

    ·He joined the BNP because he liked the commitment of the party to the welfare of the people; the commitment of the party to Bangladeshi nationalism and freedom of religious belief; supporters of the AL extorted money from him; he was angered by the way he and other people were being treated by the government and supporters of the AL;

    ·He was specifically targeted by members of the AL due to being a wealthy and successful businessman. Members of the AL made monthly demands of him for payment and threatened that, if he did not pay, they would harm his family, target his home, and arrange to have him subjected to false criminal charges;

    ·Every month, AL members took [products] from his shop and money from him against his will;

    ·Supporters of the AL regularly prevented his goods from being delivered to his [shop] until he paid them money to release the goods;

    ·Members of the AL regularly extorted money from businesses; 

    ·He could not complain to the police. When people complained to the police, the police would inform the AL leaders, who would then threaten the complainants’ lives and livelihood;

    ·His political activities occurred in Dhaka, the City in which he lived with his family and where his shop was situated;

    ·He contributed money to the BNP, and attended party meetings whenever he was notified of a meeting by party members more highly placed than himself in the organisation;

    ·In these meetings, he discussed BNP policies and strategies to regain control of the government;

    ·He and others would give speeches at these party meetings;

    ·He would organise party workers and recruit people to join the party;

    ·He conducted social activities on behalf of the BNP, including donating food and donating money to support grieving family members of deceased party members;

    ·As a member of the BNP he organised people to oppose the government extorting money from business;

    ·He informed businesspeople that it was their right not to be subjected to government extortion;

    ·In 2013, after joining the BNP, he organised and participated in anti-government demonstrations which expressed objection to government policies, human rights abuses; illegal land confiscation and occupation;

    ·Unnamed persons higher up in the party than the applicant directed the applicant and others to protest against government activities;

    ·The applicant organised demonstrations;

    ·He led demonstrations, and made speeches to the demonstrators;

    ·He started this role in demonstrations in 2013 and continued them in 2014 and 2015;

    ·He was involved in 10 to 15 demonstrations in 2013 and the number increased in 2014 after the 2014 election that saw the AL elected to government;

    ·The head of the BNP called for all supporters of the BNP to march on the streets, and the applicant did so;

    ·He attended general strikes and street protests;

    ·On [date] March or [date] March 2015, the applicant attended a general strike;

    ·At one of the general strikes, probably [in] March 2015 someone must have identified him;

    ·On [date] May 2015, four police officers came to his home and accused him of participating in anti-government activities. They told him that he had to accompany them to the police station;

    ·He bribed the police officers with 10,000 taka each and they left. He knew they, or someone else, would return to his home;

    ·Fearing he would be killed by police due to his anti-government activities and, in order to avoid the police, he went into hiding;

    ·He went into hiding in the countryside; he stayed in the homes of various relatives, moving from house to house to avoid capture by the police;

    ·He hid in two places; [Village 1] and [Village 2], situated about [number] kilometres from his home in Dhaka;

    ·He returned to his home every now and then, but there was a risk in doing so;

    ·He applied for his second Australian visitor visa to visit his [Relative 1]. While he was afraid for his family in Bangladesh, he thought it would be too hard to get an Australian visa for the whole family. He applied for a visa for himself;

    ·He was granted a visitor visa on [date] July 2015;

    ·He did not leave Bangladesh immediately after he was granted the visitor visa because he did not want to leave his family, and hoped that his situation would calm;

    ·Things seemed to ‘quiet down’[1] for him;

    [1] The applicant’s statutory declaration, paragraph 32, declared at Melbourne on 16 August 2016 before [an] Australian legal practitioner, and the applicant’s then legal representative who assisted him to apply for the protection visa: Department file and Tribunal file.

    ·Although the situation for him was calmed, he felt it was not safe for him to resume living in the family home with his wife and children;

    ·He remained in hiding with his various relatives but continued to visit his family every now and then;

    ·After he was granted his Australian visitor visa, he and his wife decided to travel together from Bangladesh to [Country 1] and [Country 2] with their children to visit his wife’s [Relative 1] due to the ‘very stressful time’[2] they had experienced in Bangladesh;

    [2] Applicant’s statutory declaration, 16 August 2016, [33].

    ·He had no difficulty in leaving or re-entering Bangladesh because he is not a prominent member of the BNP, and was a local rather than national target; nevertheless, his personal situation was ‘still dangerous and life threatening’[3]

    [3] Applicant’s statutory declaration, 16 August 2016, [34].

    ·He could not seek help from any authority as the police were corrupt and the authorities would not help someone who supported the BNP;

    ·A week after he returned to Bangladesh from [Country 1], the police visited his home. He was in hiding from the police and absent from the home at that time. His wife informed the police that she did not know where he was;

    ·The police told his wife to tell him to report to the police when she sees him;

    ·In a telephone call between the applicant and his wife she informed him of the police visit;

    ·He asked a family friend to go to the police station and ask if they intended to take action against him;

    ·The police informed the family friend that there was a criminal prosecution against the applicant; this meant to the applicant that his arrest was ‘just a matter of time’;[4]

    [4] Applicant’s statutory declaration, 16 August 2016, [38].

    ·He knew he had no choice but to leave Bangladesh;

    ·He could not continue bribing the police indefinitely and he would eventually be prosecuted or killed by the police;

    ·He decided to use his Australian visitor visa to leave Bangladesh; he departed Bangladesh on [date] November 2015;

    ·He left Bangladesh through the main airport at Dhaka and the authorities did not hinder his departure;

    ·His visitor visa lapsed on [date] December 2015 and he became an unlawful non-citizen in Australia;

    ·He did not intend to become unlawful; he wanted to ‘see about getting a valid visa to stay’[5] and to think about what he would do next, but was so overcome by stress and worry about what he should do next that he overstayed his visitor visa;

    [5] Applicant’s statutory declaration, 16 August 2016, [42].

    ·During that time, he was waiting to see if it would be safe for him to return to Bangladesh;

    ·His family told him not to return to Bangladesh;

    ·The police are an authority unto themselves;

    ·He is afraid that if he returns, he will be arrested, tortured and killed or charged and executed;[6]

    [6] Applicant’s statutory declaration, 16 August 2016, [46].

    ·He stayed at home in Australia between December 2015 and August 2016 until it was suggested to him that he seek migration advice;

    ·He was not aware that he could apply for protection until he consulted a migration agent in August 2016;

    ·His political colleagues are either in jail or in hiding;

    ·He has been unable to support himself in Australia; he is unemployed and relied on rental income from his wife but was unable to continue doing so due to the COVID pandemic. He now relies on support from friends and the Bangladeshi community in Australia, though it is difficult to support himself;

    ·He has not participated in BNP activities in Australia, and is not aware of any BNP organisation in Australia;

    ·He has not sought BNP-affiliated organisations in Australia as he fears that, if he were to involve himself with the BNP in Australia, he would be exposed and put his family at risk of harm;

    ·Nobody in Bangladesh knows he is in Australia;

    ·The AL was re-elected in 2019 and currently it governs the country;

    ·If it is discovered that he is in hiding in Australia, his family could be arrested, tortured, and extorted to force the applicant to return to Bangladesh;

    ·The police still regularly visit his home and ask his wife where he is;

    ·He had hoped that it would be safe for him to return to Bangladesh, but he was told by his family that he must not return;

    ·He is afraid that, if he returns to Bangladesh, he will be arrested, prosecuted, imprisoned, tortured, and killed.

    COUNTRY INFORMATION

19. On 22 August 2019, DFAT published a country information report for the purposes of protection status determination. Amongst other things, that report provides:

    POLITICAL SYSTEM

    Bangladesh is a parliamentary democracy. The unicameral National Parliament and the largely ceremonial presidency both have five-year terms. Parliament comprises 350 seats, of which 300 are directly elected and 50 reserved for female members nominated by political parties based on their share of elected seats. The president is elected by a simple parliamentary majority, and can be impeached by a two-thirds majority. A simple majority passes legislation, but constitutional amendments require a two-thirds majority.

    Bangladesh’s political system is characterised by a strong degree of centralised executive control. Article 55 of the Constitution vests all executive authority in the Prime Minister rather than Cabinet. The Prime Minister also relies on unelected advisers alongside elected officials. This centralisation of authority in the executive has been a feature of all Bangladeshi governments regardless of party allegiance.

    The Bangladesh Electoral Commission (BEC) oversees elections. Elections in Bangladesh have not always been free, fair and inclusive, although regular changes of government have conferred some legitimacy on the electoral process. The Grand Alliance of the ruling AL won Bangladesh’s most recent election on 30 December 2018, winning over 96 per cent of seats (288 out of 298). The lead-up to the poll was characterised by violence, including street clashes, and allegations of targeted attacks against opposition figures (see Bangladesh Nationalist Party (BNP). Both independent observers and opposition spokespersons alleged electoral irregularities, including the casting of votes and sealing of ballot boxes before polling day, and the intimidation and harassment of voters at polling places. The aftermath of the 2018 election was relatively peaceful, however, when compared to the aftermath of the previous election in January 2014, the most violent in the nation’s history.

    Information about political parties and refugee claims based on political opinion is covered in Political Opinion (actual or imputed).

    HUMAN RIGHTS FRAMEWORK

    Bangladesh is a state party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of Persons With Disabilities (CRPD), the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Convention on the Rights of All Migrant Workers and Members of Their Families (CMW), and the Convention on the Rights of the Child (CRC) and its Optional Protocols on the involvement of children in armed conflict (CRC-OP-AC) and on the sale of children, child prostitution, and child pornography (CRC-OP- SC). Bangladesh has not signed the Optional Protocol to CAT (CAT-OP), the Second Optional Protocol to ICCPR aiming to the abolition of the death penalty (CCPR-OP2-DP), or the Convention for the Protection of All Persons from Enforced Disappearance (CED).

    The Constitution guarantees fundamental rights for citizens, including equality before the law and the right to protection of the law (Article 27); the rights to life and personal liberty (Article 32); freedom from discrimination based on religion, race, caste, sex or place of birth (Article 28); and the freedoms of religion (Article 41), movement (Article 36), assembly (Article 37), association (Article 38), thought, conscience and speech (Article 39), and profession and occupation (Article 40). The Constitution does not, however, protect against discrimination on political grounds.

    National Human Rights Institution

    The National Human Rights Commission Act (2009) established Bangladesh’s National Human Rights Commission (NHRC), the primary focus of which is public education and advocacy. The President appoints NHRC members on the recommendation of a seven-member committee comprising leaders of the ruling party. The Finance Ministry channels funding for the NHRC through the Ministry of Law and Justice. Several other government ministries hold responsibility for protecting human rights in accordance with the Constitution and corresponding legislation.

    The NHRC is responsible for investigating allegations of human rights violations by individuals, public servants, government agencies, institutions and the state. However, it does not have jurisdiction to investigate complaints against ‘disciplinary forces,’ including the Bangladesh Police. More than three- quarters of cases referred to the NHRC are against law enforcement officers, and the NHRC must refer these cases to the Ministry for Home Affairs.

    The NHRC was established in line with the Paris Principles, which are the international standard for national human rights institutions. The Global Alliance of National Human Rights Institutions currently gives the NHRC a ‘B’ rating (in a ranking system where ‘A’ is the most compliant and ‘C’ is the least compliant with the Paris Principles). The rating reflects the Global Alliance’s view that the NHRC’s lack of autonomy and limited enforcement powers inhibit its ability to hold state authorities to account for violating citizens’ rights.

    SECURITY SITUATION

    The security situation in Bangladesh is volatile and can deteriorate quickly. Security threats include politically motivated violence, particularly ahead of elections; terrorist attacks committed by Islamist extremist groups; criminal violence; and sporadic clashes in the CHT between indigenous groups and Bengali settlers over land ownership and usage (see Chittagong Hill Tracts (CHT) indigenous people). Authorities have expressed concern that the large-scale influx of Rohingya from Rakhine State, Myanmar (see People who identify as Rohingya (Rohingya)) into Bangladesh in 2017 may lead to additional security threats in the Cox’s Bazar district, including communal violence, people smuggling, drug and human trafficking, and possible radicalisation.

    Successive Bangladeshi governments have faced the challenge of dealing with extremist Islamist groups, who may plan or execute violence against a wide range of government and civilian targets.

    Authorities have taken a hard-line approach in responding to these attacks, which has included proscribing key militant groups and arresting hundreds of militants. Human rights groups have reported that security operations against militant groups have resulted in high numbers of extra-judicial killings (see Extra-Judicial Killings).

    Between January 2013 and mid-2016, domestic militants (including some claiming allegiance with the Islamic State terrorist organisation) conducted a wave of militant attacks across the country that caused numerous fatalities. These attacks, most of which were small-scale in nature, targeted foreign nationals, religious and sexual minorities, and members of groups perceived to threaten conservative Islamist values, including activists, bloggers, and publishers (see relevant sections). The most serious attack was a hostage- taking incident at a restaurant in a wealthy area of Dhaka in July 2016 that resulted in the deaths of two police officers and 20 hostages, most of whom were foreigners (the ‘Holey Bakery attack’). Bangladeshi authorities conducted extensive counter-terrorism operations in response. DFAT understands that these operations, together with the government’s gradually improving coordination on counter-terrorism, have reduced the capability of militant groups. While there have not been any subsequent attacks similar in scale to the Holey Bakery attack, the risk of further attacks cannot be discounted.

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.

    The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.

    Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors (see Political Auxiliary Organisations).

    Being a member of a political party or one of its auxiliary organisations may assist in getting a job (see Employment). There are, however, a very large number of job seekers in Bangladesh, and such membership is unlikely to be the sole determinant of whether or not someone is able to gain employment. Social networks and personality-driven politics are important in Bangladesh. Payment of bribes to secure employment is also common, along with patronage and cronyism.

    DFAT has not seen evidence of forced recruitment to political parties, and considers it unlikely to occur. Parties hold membership campaigns each year, through which parties recruit large numbers of members. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshis have a limited interest in politics, and those that do are not necessarily members of any party.

    Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.

    Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI (see relevant sections). These restrictions have included:

    * using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;

    * using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and

    * pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.

    Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.

    While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country (see Media). Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.

    DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.

    Awami League (AL)

    The AL traces its history to the 1947 partition of India and Pakistan, and emphasises its role in the separation of East Pakistan to become Bangladesh. Its policy platforms include secularism, liberalism, cooperation with India, and rural and agricultural based policies.

    At the top of the party is the Central Committee, known as the Presidium. There are 15 members of the Presidium, including the Prime Minister. The Presidium is part of an 81-person Central Working Party and is supported by an advisory committee of technical advisers. Each district and sub-district (upazila) has its own committee. Some also join Political Auxiliary Organisations and rise through the ranks.

    The party holds membership campaigns every year through which people can apply for membership. Applicants are required to pay a fee of about 20 taka (about 30 cents). Once people have joined it takes two years for them to be admitted as full members. People are involved at different levels, including in village politics or in auxiliary committees. There is no official distinction between levels of supporters, but people are commonly involved in different wings of the party and focus on different jurisdictions, such as the village or district level. The party also has overseas wings for the Bangladeshi diaspora, which exist in some major cities in Australia as well as other countries.

    The AL has recently made efforts to increase social inclusion in state institutions, including through increasing the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they have experienced less discrimination and violence under the AL in its recent terms in office than they had under earlier AL governments.

    Intra-party violence reportedly occurs regularly, including in the lead-up to the 2018 election and around sub-national elections and student organisation elections. Such violence is usually about disputes over candidate pre-selection or internal disputes between business people. While often described as ‘factional’ violence, the factions may be personality or patronage-based rather than ideologically based. The rate of intra-party violence in the lead-up to the 2018 election was reportedly lower than in previous years. The party has strong disciplinary policies to deal with rogue candidates, and has used these policies on occasion to expel such candidates from the party. People involved in political disputes may be both the victims and perpetrators of violence.

    DFAT assesses that the patronage and personality-based nature of political alliances within the AL, and other disputes between AL members, has the potential to lead to violence. The extent of the violence, whether affecting an AL candidate or their supporters, is dependent on the political and social profile and supporter base of the disappointed candidate.

    Bangladesh Nationalist Party (BNP)

    The BNP was founded in 1978 following the assassination of President Mujibur Rahman, and was established on a platform of Bangladeshi nationalism and Islamic identity. At its founding, and at the 2014 election, it cooperated with JI. In the lead-up to the 2018 election, however, BNP attempted to distance itself from JI as a way to demonstrate that it did not support extremist ideology.

    The BNP Standing Committee is the top decision-making body of the party. Various secretaries have responsibility over political portfolios, such as foreign affairs or information, within that body. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.

    Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.

    BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.

    Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.

    DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.

    Political Auxiliary Organisations

    Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers or labourers). These organisations might be known by other names, such as ‘fronts’, ‘wings’, ‘associates’ or ‘leagues’. While the exact size of these organisations is unknown, they are large: local sources estimate that the AL’s student wing, the Bangladesh Chhatra League (BCL), alone has ten million people. The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities, and the auxiliary organisations maintain a high degree of autonomy.

    The auxiliary organisations support the political parties through fundraising and election-related activities. However, they also play a major role in inter-and intra-party violence. DFAT assesses as credible allegations that members of student wings are sometimes party activists rather than genuine students, and that auxiliary organisations engage in criminal activities on occasion, including violence and extortion.

    Student elections, like other elections, can turn violent and be characterised by inter-party and intra-party violence in a pattern similar to civic elections. The BCL has effectively controlled public university campuses since 2009, preventing members of other parties’ student wings from undertaking activities and even from sitting examinations. In rural areas, AL members and activists have reportedly extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money.

    In addition to the BCL, other key AL auxiliary organisations include the Bangladesh Awami Jubo League (youth wing), the Bangladesh Mahila Awami League (women’s wing), the Awami Swechhashebok League (volunteers’ wing), the Bangladesh Krishok League (farmers’ wing), the Jatiyo Sramik League (workers’/labour wing), and the Awami Ainjibee Parishad (lawyers’ wing). Key BNP auxiliary organisations include the Jatiyatabadi Chhatra Dal (student wing), the Jatiyatabadi Jubo Dal (youth wing), the Bangladesh Jatiyatabadi Mohila Dal (women’s wing), the Bangladesh Jatiyatabadi Krishak Dal (farmers’ wing), the Bangladesh Jatiyatabadi Muktijoddha Dal (freedom fighters’ wing), the Bangladesh Jatiyatabadi Sechchasebak Dal (volunteers’ wing), the Bangladesh Jatiyatabadi Samajik Sangskritik Sangstha (cultural wing), the Bangladesh Jatiyatabadi Sramik Dal (workers’/labour wing), the Bangladesh Jatiyatabadi Tanti Dal (weavers’ wing), the Bangladesh Jatiyatabadi Olama Dal (religious wing), and the Bangladesh Jatiyatabadi Matshayajibi Dal (fishermen’s wing).

    Politically Motivated Violence (PMV)

    Bangladesh is historically prone to high levels of politically motivated violence (PMV). Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party (intra- party violence), supporters of rival parties (inter-party violence), between party supporters and law enforcement agencies, and between issues-based, politically motivated protester groups and law enforcement agencies and/or party auxiliary organisations. Fatalities and serious injuries often result from these clashes. PMV tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.

    The number of casualties resulting from PMV varies from year-to-year. In 2018, Odhikar reported that 120 people were killed and 7,051 injured in PMV-related incidents, compared with 77 deaths and 4,635 injuries in 2017 and 215 deaths and 9,053 injuries in 2016. The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV leaving hundreds dead and thousands injured across the country. As was the case in 2015, 2016, and 2018, local government and council elections in March 2019 continued to be marred by high levels of PMV. The period leading up to the December 2018 national elections was also marked with some violence, primarily of an inter-party nature, but PMV-related deaths and casualties were significantly down and the aftermath was relatively peaceful compared with the national elections held five years earlier.

    Intra-party violence has become far more common than inter-party violence, particularly between AL factions and individuals. In 2018, Odhikar documented 281 cases of AL intra-party violence resulting in 53 fatalities and 3,225 injuries, but only 14 cases of BNP intra-party violence resulting in three deaths and 115 injuries. These figures were roughly equivalent to those of preceding years. DFAT understands that the high frequency and intense nature of AL intra-party violence can be attributed to the party’s control over state institutions in recent times. This domination has led to competition between rival AL factions and individuals for pre-selection as electoral candidates, and therefore access to, and influence on, processes and outcomes of lucrative contracts, tenders and appointments to senior party positions.

    Protestors and Street Demonstrations

    The August 2018 ‘Road Safety Movement’ saw widespread protests across the country. While the initial spark had been the number of road safety-related deaths, the largely spontaneous protests evolved into demonstrations against a wide range of grievances. Authorities reportedly used tear gas and rubber bullets against protestors. Many demonstrators were reportedly beaten, arrested, and/or charged under national security laws. There have been reports of enforced disappearances in connection with the protests (see Enforced or Involuntary Disappearances).

    In-country sources report that police closely monitor protests related to labour disputes, especially in garment factories. This monitoring has had the effect of reducing the number and scale of such protests, although they do occur on occasion (see following section). DFAT is aware of reports of enforced disappearance in connection with people protesting factory conditions (see Enforced or Involuntary Disappearances).

    Extra-Judicial Killings

    International and local rights groups report that extra-judicial killings committed by government security forces occur frequently in Bangladesh. In April 2017, the UN Human Rights Committee expressed concern at the high rate of extra-judicial killings by police officers, soldiers and Rapid Action Battalion members (see Police), the excessive use of force by state actors, and the lack of investigations and accountability of perpetrators.

    Human rights groups report that many suspicious deaths have occurred during raids, arrests, and other law enforcement operations in what authorities have described as ‘crossfire’. Officials and the media use this term to characterise exchanges of gunfire between security forces and criminal gangs or militants. In many such cases, security forces claim to have taken a suspect in custody to a crime scene or hideout late at night to recover weapons or identify conspirators, only for the suspect to be killed when his conspirators shot at police. Human rights groups allege that law enforcement units have detained, interrogated and tortured suspects, brought them back to the scene of the original arrest, executed them, and attributed the death to lawful self-defence in a ‘crossfire’ incident. Odhikar documented 456 extra-judicial killings from 1 January to 30 November 2018, 449 of which were ‘crossfire’ incidents.

    STATE PROTECTION

    Political interference and corruption operate to constrain the rule of law in Bangladesh. While some state institutions continue to work to enforce the fundamental rights of citizens, insufficient funding and a lack of political support hamper their efforts. Other organs of state protection, including the military, police, and lower courts, can be heavily politicised, under-resourced, and subject to corruption. DFAT assesses that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.

    Military

    Chapter IV of the Constitution covers matters relating to the military. Article 61 gives supreme command of the military to the President, Article 62 empowers parliament to raise and maintain the defence services and to appoint their chiefs of staff, and Article 63 states that parliamentary assent is necessary to declare war. The Minister for Defence is responsible for defence policy. Although the Bangladesh Army Act 1952 provides for the possible introduction of compulsory military service, Bangladesh has never had conscription. The Bangladeshi Armed Forces comprise an army, navy and air force. The army has a force size of approximately 200,000 personnel; the navy, around 27,000 personnel; and the air force, around 20,000. The military has contributed significantly to UN peacekeeping missions since the 1980s.

    The military has intervened in politics on several occasions since independence (see Recent History) In-country sources report that the military is a highly politicised organisation. Following a failed coup attempt in 2012, the AL reportedly purged the military of government critics, opposition party supporters, and officers with close contacts in the Pakistani military. The government has also reportedly increased salaries, created more senior positions, allocated valuable land to senior officers, and allowed the military to consolidate its control over the CHT (see Chittagong Hill Tracts (CHT) indigenous people).

    Police

    Bangladesh Police (‘the police’) is the country’s primary law enforcement agency, and it plays a central role in maintaining national law and order. The Minister for Home Affairs has portfolio responsibility. The police force comprises approximately 195,000 personnel, organised into a number of specialised organisations that include the RAB, the Criminal Investigation Department, the Special Branch, the Armed Police Battalion, Metropolitan Police, and multiple anti-terrorism units.

    Professionalism varies across the police. The national system of policing can be effective, and the force has often demonstrated an ability to track down suspects across the country. Political and bureaucratic interference is a significant impediment to police efficiency, however. Both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests. Police systems are heavily bureaucratic. While senior officers are relatively well trained and well paid, and occupy important positions within the bureaucracy, those in lower ranks are often poorly paid, trained and equipped. Low salaries encourage some police to supplement their income through demanding bribes from members of the public (see also Corruption and Prevalence of Fraud). The US State Department has consistently reported that public distrust of police and security services deters many Bangladeshis from approaching government forces to seek assistance or to report criminal incidents.

    Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. Investigations into police misconduct are internal, and generally lack either transparency or credibility. DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.

    INTERNAL RELOCATION

    Article 36 of the Constitution guarantees citizens the right to move freely throughout Bangladesh, to reside and settle in any place therein, and to leave and re-enter Bangladesh. There is no legal impediment to internal movement within Bangladesh, and Bangladeshis can and do relocate for a variety of reasons. Major cities, such as Dhaka and Chittagong, offer greater opportunities for employment. DFAT assesses that women without access to family or other support networks are likely to face greater difficulties in relocating then men, particularly if they are poor, single, and/or have suffered gender-based violence.

    EXIT AND ENTRY PROCEDURES

    The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh’; or where doing so would be contrary to the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.

    The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. Authorities require permission from both parents before allowing travel by a minor (children under the age of 12). Minors who have passports or whose names are listed on a guardian or parent’s passport may travel with only one parent.

    Bangladesh is largely surrounded by India, and a number of land border crossings exist. There are 32 checkpoints in total and 24 of these are operational. One crossing exists at the border with Myanmar. Some parts of the border are fenced and some parts are open. Bangladeshi border police cooperate with Indian Border Force officers. There have been some recent cases of farmers and agricultural workers being killed when crossing the border with India away from official checkpoints. Indian border officers have generally blamed these cases on the victims being mistaken for drug traffickers. DFAT assesses that those crossing the border outside of regular checkpoints may be at risk of being killed when trying to cross the border.

    PREVALENCE OF FRAUD

    The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.

    It is common for Bangladeshis to acquire documents through an agent, or ‘middleman’. This individual will make an application for documents on behalf of the person that has requested them, a process which may be subject to fraud. It is therefore possible that the person seeking the document does not know that their documents are fraudulent. The risk involved with the use of middlemen may be unavoidable, as some sources report that it is not possible to get documents without the use of such an agent.

    Passport fraud is a particularly common type of fraud, given many Bangladeshis travel or are trafficked abroad in order to get work. DFAT is aware of Rohingya obtaining genuine Bangladeshi passports by fraudulent means, such as paying bribes. Once these passports expire they cannot be renewed, which has led to some high profile cases of stateless people abroad unable to return, or being arrested or detained by Bangladeshi authorities upon return. Some Bangladeshis reportedly try to leave on fraudulent passports via India, where the bona fides of the passport are more difficult to check. These travellers may be detected by Indian immigration at inward or outward borders. Bangladeshi immigration officers at the border may lack the skills and expertise to identify fraudulent documents on entry or exit. Attempting to obtain a genuine passport without corruption can be difficult as each step of obtaining documents may require bribes. For example, obtaining a passport might require a police certificate, which could require a bribe. A fraudulent document can be more easily detected than a fraudulently obtained genuine document.

    Fraudulent NICs are harder to produce as they contain a plastic chip with biometric information embedded. A genuine, but fraudulently obtained document may contain some correct biometric information. Authorities can also check NICs on a national database, which may provide some protection against fraud.

    Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.

    Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents, can often be difficult to verify through formal channels. This is for a variety of reasons, including expectations by some officials of facilitation payments, or genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh.

    SECTION 5AAA OF THE MIGRATION ACT1958

1. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be persons 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 the applicants in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.

2. The Tribunal will now itemise the applicant’s travel and visa history:

   ·[December] 2013 granted a Sponsored Family Stream (Subclass FA-600) visitor visa.

   ·Departed Bangladesh by air from Dhaka on [date] February 2014, arrived [Country 2] that day. Departed [Country 2] by air on [date] February 2014. Arrived Australia on [date] February 2014 on a Visitor visa FA-600. Departed Australia [date] February 2014 and arrived Dhaka on [date] February 2014.

   ·9 July 2015 the applicant lodged an application for a Sponsored Family Stream (Subclass FA-600) visitor visa.

   ·[Date] July 2015 the applicant was granted Visitor visa FA-600 (second visitor visa).

   ·[In] August 2015 the applicant arrived in [Country 2], [date] September 2015 departed [Country 2] and arrived [Country 1],[date] September 2015 departed [Country 1] and returned to Bangladesh.

   ·[In] November 2015 the applicant arrived in [Country 3] from Bangladesh. Departed [Country 3] and arrived in Australia on [date] November 2015 on his second visitor visa, thereafter he has remained in Australia.

   ·[Date] December 2015 the applicant’s second visitor visa expired.

   ·9 August 2016 applicant signed his application for a Protection (Subclass XA 86) visa, [number] days after he entered Australia as the holder of his second visitor visa.

   ·18 August 2016, the application for protection was lodged with the Department 9 days after the applicant signed the application and [number] days after the date of his arrival.

3. The applicant claims he is entitled to protection under Australian law because there is a real chance that, if he were returned to Bangladesh now or in the reasonably foreseeable future, he would be persecuted for reasons of his political opinions, his membership of a particular social group, namely the BNP.

4. The applicant first claimed protection on 18 August 2018 when his previous representative, [an] Australian legal practitioner, lodged his protection application with the Department on that date.  The applicant signed his application forms on 9 August 2016. His application included, amongst other documents, a copy of a statutory declaration he declared before his legal representative at Melbourne on 16 August 2016 (statutory declaration).

5. In the visa application form the applicant claimed that he left his home country in fear of persecution because police and unspecified government authorities were seeking to arrest, torture and kill him due to his anti-government activities and his membership of the main opposition party, the BNP.[7]

   [7] Application form, Department file: see responses to questions 89, 90, 92, 94 & 95.

6. In question 91 of the visa application form, the applicant was asked to give details of any harm he experienced, including the type of harm, the person or persons responsible for the harm and why they harmed him.  In response the applicant stated, ‘I was accused of breaking curfew and participating in antigovernment activities. Please see attached statement.’ Here the applicant was referring to his statutory declaration.

7. In the statutory declaration the applicant put into context the harm he relied on in his application to the Department to establish that he was facing persecution in Bangladesh and therefore he is a refugee. Additionally, he particularised the anti-government activities he engaged in, which he claims gave rise to the police and government authority’s determination to find, arrest, torture and kill him.

8. As the Tribunal understands the applicant’s statutory declaration, he contends that before joining the BNP, he showed his support for the BNP by his presence on the streets of Dhaka where he, along with other supporters of the BNP, participated in anti-government strikes and demonstrations. The applicant does not contend in his statutory declaration or the visa application forms, that he conducted himself in any way that was likely to distinguish himself from any of the other BNP supporters who were present on those occasions.

9. According to the statutory declaration the applicant became a member of the BNP about three years before he declared his statutory declaration on 16 August 2016. In response to questions from the Tribunal at hearing the applicant said he joined the BNP in June or July 2013.

10. According to his statutory declaration he joined the BNP because he was angry about the way in which he and other people in his area were being treated by the government authorities. At that time, he was a successful [retailer]. He conducted his business from a retail shop in Dhaka. After joining the BNP, the applicant claims that because he was an active member of the BNP and successful in business, he was specifically targeted by unnamed government authorities who threatened to hurt his family, target his home and arrange for him to be falsely charged and prosecuted if he did not pay them money.  Every month thereafter, members and leaders of the AL attended his [shop] and took ‘armfuls of [products] and money.’[8]

    [8] Statutory declaration, Department file and Tribunal file, [20].

11. According to the applicant’s statutory declaration, protection measures are not available to him because police, government authorities and members of the governing party, the AL, were responsible for the threats of harm and extortion.  To report the offending conduct to the police would heighten his risks because the police would inform the leaders of the AL thereby putting his life and that of his family and their livelihood under direct threat.[9]

    [9] Statutory declaration, [22].

12. According to the applicant’s statutory declaration, the grave threats to himself and his family forced him give to supporters and leaders of the AL money and [products] and this occurred every month. This extortionist behaviour made him angry.  Consequently, the applicant said he ‘decided to be more active in my support for the BNP.’[10] The applicant then gives details of his subsequent political activity: he ‘went to the hartals, the general strikes’.[11]  The applicant does not say in his statutory declaration that he occupied a leadership position in the BNP or an affiliated party organisation; attended and addressed BNP branch meetings; organised, addressed or led anti-government street demonstrations, organised or led strikes; or, that he addressed or played any prominent part in anti-government strikes or street demonstrations. According to the statutory declaration, after he decided to give more active support to the BNP, his anti-government activity comprised his attendance at an unspecified number of general strikes.[12]

    [10] Statutory declaration, [23].

    [11] Statutory declaration, [23].

    [12] Statutory declaration, [23]

13. The applicant believes he was identified [in] March 2015[13] at a general strike. He attributes to this event the attendance of four police officers at his home on the evening of [date] May 2015. The police accused him of participating in anti-government activities. On the applicant’s account of what happened, the police arrested him and required him to accompany them to a police station.

    [13] Statutory declaration, [24].

14. According to the applicant, the police let him go in return for a bribe. Nevertheless, the applicant believed this was not the end of the risk he faced. He knew[14] the police or others would be back. Consequently, the applicant left his home and family and his business and went into hiding in the countryside. There he lived with various relatives, moving from house to house in order to avoid capture.  Nevertheless, the applicant returned home ‘every now and then’[15] despite the continuing risk of capture, torture and death he knew he was facing.

    [14] Statutory declaration, [26].

    [15] Statutory declaration, [27].

15. If the applicant’s account of his circumstances is to be accepted, whenever he returned to Dhaka to visit his family, he repeatedly ran a high risk of torture and death. There is no evidence of any compelling reason relating to the welfare of his family or any other pressing reason commensurate with the risk of capture he claims when he visited his family.

16. In the statutory declaration the applicant does not assert that the risk he ran in returning to Dhaka to visit his family ever eventuated. In his oral evidence the applicant claimed he was beaten several times. In the context of the applicant’s evidence the beatings he referred to occurred when he ventured into Dhaka from his hiding place in the country to visit his family.

17. In evidence the applicant contended that in February 2014, he returned to Dhaka after travelling to [Country 2] and on to Australia on his first visitor visa, he returned to Dhaka without experiencing any problems at the airport. However, he experienced problems after he arrived home. He was beaten and his assailants demanded money from him. The Tribunal reminded the applicant that he claimed he was in hiding and inquired where the beatings occurred. The applicant’s position at hearing amounts to this: he was beaten several times and the beatings occurred in the street when he returned home to visit his family. The applicant claimed he was unable to remember the dates of the beatings except the date of the beating mentioned in a document which purports to be signed by [Mr A] ([Mr A document]) in his capacity as [Position 1] of [Branch 1], Dhaka of the BNP.

18. The [Mr A document] described in detail a life threating incident said to have occurred on
    [date] May 2015.  Given the gravity of the events described in the [Mr A document], the Tribunal was concerned that the applicant did not explicitly refer to it in his statutory declaration. This concern is compounded by the applicant’s evidence to the effect that the street assaults after he returned from his trip to Australia in early September 2015, prompted him to decide to leave Bangladesh.

19. Turning now to the [Mr A document]. According to the [Mr A document], on an unidentified date the applicant informed [Mr A] that when he was in front of a grocery shop on [date] May 2015 at about [time], he was attacked by four or five supporters of AL. They abused him, and ‘stuck and knife and pistol to his belly.’[16] The assailants threatened to have him killed if he did not cease his political activities. According to the applicant’s evidence at hearing this incident happened on the street outside the grocery shop when he was shopping for groceries. He felt he could be killed. He was saved by the intervention of other people. The applicant went into hiding after this incident.

    [16] [Mr A] document (undated): Department file and Tribunal file.

20. The Tribunal queried the applicant about the omission of this incident from his statutory declaration. This incident is obviously highly relevant to establishing the applicant’s claim for protection. There are three aspects to the applicant’s response to the Tribunal’s concern. In summary he responded that he mentioned that police were looking for him; he did not have any documents about the attack; and he reported the incident to the branch [Position 1] of the BNP, meaning [Mr A].

21. The Tribunal will consider individually each part of the applicant’s response. In his response he said he had indicated in his statutory declaration that the police were looking for him. The applicant did not identify the part of his statutory declaration that referred to police looking for him in relation to the assault outside the grocery shop on [date] May 2015. Upon rereading the statutory declaration, the Tribunal was unable to identify any text that spoke about the attack outside the grocery shop. An obvious difficulty with this element of the applicant’s response is this: the incident, as it was described in the [Mr A document] and by the applicant at hearing, was carried out by supporters of the AL. Neither the [Mr A document] nor the applicant at hearing asserted that members of the police force were involved in the attack.

22. The Tribunal does not accept that any reference in the statutory declaration to the police looking for the applicant was intended to refer to the [date] May 2015 attack. The Tribunal finds this aspect of the applicant’s evidence to be unpersuasive.

23. Another reason offered by the applicant at hearing for not specifying the grocery shop attack in his statutory declaration was that he did not have any documentation about the incident. According the applicant’s evidence at hearing after the attack he went into hiding in the countryside. That evidence is some measure of the gravity and significance of the attack in the mind of the applicant.  Given the gravity of the attack, the Tribunal is of the view that it is unlikely the applicant was deterred from giving a detailed account of the attack in his statutory declaration, if it in fact it occurred, simply because he did not have any documents about it.  In forming this view of the evidence, the Tribunal has given regard to its assessment of the applicant as a witness in this review.

24. The applicant impressed the Tribunal as being a thoughtful, confident and considered witness who gave evidence in a confident and considered manner. The applicant impressed the Tribunal as likely to have relied on the attack in his description of the persecution he claims he suffered in Bangladesh if in fact the attack occurred, irrespective of whether he had documents about the incident. The Tribunal finds the aspect of the applicant’s evidence discussed in this paragraph to be unpersuasive.

25. Additionally, at hearing the applicant asserted part of his explanation for omitting the grocery shop attack from his statutory declaration is that he informed the [Position 1] of his party, namely [Mr A] of the attack. The [Mr A document] contains a restatement of what the author claims the applicant told him about the attack outside a grocery shop in Dhaka.

26. The [Mr A document] is undated. There is no evidence as to exactly when the document was written. It is not possible to independently verify whether the document was written before or after the date on which the applicant signed his statutory declaration. The Tribunal has read and carefully considered the contents of the [Mr A document].

27. In the description of the attack that the [Mr A document] attributes to the applicant, he reported that a knife and pistol had been held to his belly by supporters of the AL. In evidence at the hearing about this incident the applicant described what happened during the attack. In describing that he was beaten and that he feared he could be killed, the applicant clearly focused his mind on what was done to him, and what caused him to fear he could be killed. At hearing the applicant did not say in his evidence that he was threatened with a knife or a pistol during the attack, or that those weapons were present during the alleged attack. In evidence the applicant did not claim any aspect of the [Mr A document] is inaccurate.   As the Tribunal understands the applicant’s evidence, he relies on the whole of the contents of the [Mr A document] in this review.

28. It the view of the Tribunal it is unlikely the applicant would limit the description of the assault to a beating and verbal threats, if in fact a knife and pistol had been used against him in the attack. The Tribunal finds this inconsistency in the two different accounts of the grocery shop attack, to be a material inconsistency which the applicant has not accounted for satisfactorily. The inconsistency weighs against accepting that the incident outside the grocery shop in fact occurred. It also weighs against accepting the applicant is a reliable and accurate witness in this review. 

29. There is an additional material inconsistency in the applicant’s evidence at hearing and the applicant’s statutory declaration. At hearing the applicant claimed he was beaten on the street several times. In the account he provided in the statutory declaration of the harm he claims he suffered in Bangladesh, he makes no mention of these beatings. This inconsistency is considered by the Tribunal to be a material inconsistency in the facts upon which he claims to be entitled to protection under Australian law. The inconsistency weighs against accepting the applicant suffered any beatings for reasons of his political opinion or for any other reason.

30. Furthermore, the Tribunal is of the view that it is inherently unlikely that the applicant would come out of hiding, risking capture by the police, detection by the authorities and supporters of the AL, his liberty, and his life, to go grocery shopping on [date] May 2015.

31. At hearing the applicant was asked if he was involved in an any particular demonstration that had caused him problems.  In response the applicant identified a demonstration on [date] March 2015. The Tribunal inquired about the role he played in that demonstration. The applicant asserted that on that day he organised a demonstration. During the demonstration BNP supporters were attacked by their political opponents and many people were harmed. According to the applicant’s evidence, he organised and led a group of 70 to 80 BNP demonstrators in a violent attack on the Government supporters. In his statutory declaration the applicant had limited his account of his role in a strike [in] March 2015 to simply attend a strike on either one of those days. He did not claim he performed an organisational or leadership role in the strike, nor did he claim he led a violent attack on government supporters during that strike.

32. The description in the statutory declaration of the role the applicant played [in] March 2015 is materially different to the one he gave at hearing of the role he played in the strike.

33. The Tribunal referred the applicant to his statutory declaration and told the applicant that his description in that document of the role he played [in] March impresses the Tribunal as falling well short of what he said in evidence about his role on [date] March. The applicant was invited to comment on what the Tribunal regarded as two significantly different accounts of the role he played on [date] March. The essential nature of the applicant’s response to the Tribunal’s concern was that he mentioned the incident in his statutory declaration; that the role he played is mentioned in the court documents before the Tribunal; he described his role in detail to his previous migration agent; he understands his agent did not give a full account of his role in his statutory declaration; he was not aware of the limited description of his role on [date] March in his statutory declaration until it was mentioned by the Tribunal; he did not have the benefit of an interpreter when he made his statutory declaration.

34. There are difficulties with the applicant’s explanation for the significant difference between the account he gave in his statutory declaration and the account he gave in evidence about his role in a general strike on 18 March 2015. Earlier in his evidence the applicant confidently and unequivocally confirmed the contents of his statutory declaration are 100% correct. The statutory declaration formed part of the documentation the applicant lodged with the Department. According to the statutory declaration it was properly declared on 16 August 2016 before an Australian legal practitioner within the meaning of the Legal Profession Uniform Application Act 2014. There is no dispute that the declaration was signed by the applicant. In signing the declaration, the applicant declared that the statements made in the declaration are true in every particular.

1. In the absence of compelling supporting evidence, and in view of the applicant’s evidence that the contents of his statutory declaration are 100% correct, the Tribunal does not accept that the applicant’s legal representative, acting against her client’s best interests and her instructions for no evident reason, neglected to record in the statutory declaration her instructions about the role the applicant played on [date] March 2015. 

2. The applicant’s explanation for the discrepancies between his statutory declaration and his evidence at hearing also needs to be considered in the context of the professional assistance he received in this review. In this review the applicant was assisted by [a] registered migration agent. He submitted the applicant’s statutory declaration to the Tribunal as evidence in the review. The document was submitted without qualification as evidence relied on by the applicant in support of his visa application.

3. After considering the evidence, including the fact that the applicant, through his current representative, re-submitted the affidavit without qualification to the Tribunal as evidence in support of his application in this review, the Tribunal does not accept the applicant’s explanations for the differences between his account at hearing of the events of [date] March 2015, and the account he gave in his statutory declaration. In reaching this view the Tribunal has given significant weight to the applicant’s evidence at hearing that his statutory declaration is 100% correct.

4. Additionally, the applicant presented to the Tribunal as being a thoughtful, considered and confident witness, who, in the Tribunal’s assessment of him as a witness, did not present as a vulnerable person, or a person constrained by cultural considerations who may have declared and signed his statutory declaration without first satisfying himself that the document stated what he intended it to state. 

5. The applicant gave further evidence relevant to the role he played in the BNP including the events of [date] March 2015.

6. The applicant’s political activism included attending BNP party meetings from time to time. He attended these meetings after he was given details of the meetings by persons more senior in the party than himself. In evidence the applicant described himself as actively involved in organising and motivating members of the party, supporting the poor, making speeches to party meetings and anti-government demonstrations and strikes, and leading demonstrations in Dhaka.

7. The [Mr A document] indicates the applicant joined the BNP in 2013, and in 2014 he was appointed to [a position] of a local branch of BNP in Dhaka. The applicant was such a skilful and popular anti-government activist, that the AL attacked him and tried to kill him many times. The author opines that it is highly likely he will be killed and for that reason he should not return to Bangladesh.

8. In considering the [Mr A document] the Tribunal referred the applicant to part of his statutory declaration. The Tribunal reminded the applicant that according to his statutory declaration, when he visited [Country 1] with his wife and children[17] he had no problems leaving and re-entering the country because he was not  ‘a very high figure in the BNP.’[18]  This statement appeared to be inconsistent with the applicant’s evidence and the contents of the [Mr A document] about the prominent leadership role the applicant was playing in the BNP, and that his political activism and popularity had led to many attempts by the AL to kill him. The Tribunal asked the applicant to comment on that apparent inconsistency. The applicant said his previous agent was at fault.  She did not write the statutory declaration correctly. What [Mr A] had narrated about him is correct. The agent did not correctly record what she was told and what he wanted written in the document. The applicant contended he did not understand what was written in the document because he did not have the benefit of an interpreter.  The applicant was informed the Tribunal was having difficulty with his evidence because he had already said in evidence that the contents of his statutory declaration was 100% correct. The applicant held his position that what his agent had written was incorrect and different from what he wanted written in his statutory declaration.

   [17] This visit occurred between [August] 2015 and  [September] 2015.

   [18] Statutory declaration, [34].

9. For the reason already stated in relation to the applicant’s evidence about the failures of his previous legal representative, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant’s previous agent is responsible for the discrepancies between the applicant’s statutory declaration and his evidence. Moreover, as the Tribunal has already observed in this decision, the Tribunal is not satisfied the applicant signed his statutory declaration without first being satisfied the entire contents of the document are 100% correct.

10. The Tribunal is not satisfied that the applicant’s statutory declaration was submitted first to the Department, and subsequently to the Tribunal, without his prior knowledge of the contents of the document and intention that the document be submitted in both instances for the purpose of advancing his protection claims.

11. The essential nature of the applicant’s political activism, according to his statutory declaration is this: he supported the BNP before he joined the party in 2013. As a supporter of the BNP he attended strikes; after the 2014 election he joined a strike in response to the national leader of the party calling all supporters of the BNP to ‘come onto the streets.’[19] The applicant decided to become more politically active. His heightened political activism comprised attending more general strikes. At one of these strikes on a date the applicant was unsure of, but he thought was probably [date range] March 2015, he thinks someone identified him.  The applicant seems to link that strike to the events of the evening of [date] May 2015.

    [19] Statutory declaration, [18].

12. On that occasion four police accused him of participating in anti-government activities, arrested him for the purpose of taking him to a police station. He successfully bribed the police not to remove him from his home, and they left him there. Knowing the police or others would return to his home and capture him there, he left Dhaka and went into hiding. He stayed in the homes of various relatives in the countryside. In hiding he did not participate in political activities.

13. According to the applicant’s oral evidence, after joining the party in June or July 2013 he organised, addressed, and led 10 to 15 demonstrations that year. That number increased in 2014 and 2015. According to the applicant’s oral evidence, he played a prominent and public leadership role in the BNP.  He attended and addressed party meetings. He addressed and led many demonstrations in Dhaka; donated funds to the poor; and on [date] March 2015 he led a group of 70 to 80 demonstrating BNP supporters in a violent attack on government loyalists.  Additionally, and without qualification, the applicant adopted as accurate the contents of the [Mr A document]. (More about the [Mr A document] later.)

14. The Tribunal is of the view that the account of his political activism he gave in his oral evidence, is materially inconsistent with the account he gave of his political activities in his statutory declaration.

15. In the latter description, the essential nature of his political activism amounts to him attending strikes and protests in support of the BNP; joining the BNP in 2013; increasing his political activism by attending an unspecified number of general strikes along with other members of the BNP. He does not describe himself as doing anything at these demonstrations that the Tribunal regards as reasonably likely to distinguish him from the group of BNP protesters.  

16. Whereas in oral evidence the applicant asserts he was a prominent leader of the BNP who made political speeches at party meetings; publicly promoted the party; made anti-government speeches at public demonstrations; organised and led many anti-government demonstrations; and on [date] March, organised and led BNP protesters in a violent attack on supporters of the government and the AL.  In other words, in oral evidence the applicant elevated his political activities and profile from simply joining BNP street protests and strikes as a supporter and later a member of the BNP, to being a prominent member of the BNP, an anti-government public speaker who organised and led many anti-government protests, which included during one strike, organising and leading a group of BNP protesters in a violent attack on government loyalists and supporters of the AL.

17. On the Tribunal’s assessment of the evidence the inconsistencies between both descriptions of the applicant’s anti-government activities are material inconsistencies which weigh against accepting the applicant is a reliable witness. The inconsistencies also weigh against accepting as reliable the descriptions given in the statutory declaration; the applicant’s evidence at hearing; and, the [Mr A document], of his role in the BNP and his anti-government activities.

18. The Tribunal will now consider the [Mr A document] more specifically. The document is addressed in general terms, ‘To Whom It May Concern.’  Printed at the top of the document in the English language, are the words Bangladesh Nationalist Party and [a] Unit.  The document purports to be signed by [Mr A], [Position 1], [Branch 1], Dhaka. A stamp on the document indicates it was attested to [in] Bangaldesh [in] October 2019, about four years after the applicant applied for protection.

19. At hearing the Tribunal informed the applicant that DFAT country information indicates non-genuine political party documents are readily available in Bangladesh. In that context the Tribunal informed the applicant of its concern that the Bangladesh Nationalist Party document was not genuine. In response the applicant asserted that he was not concerned about the DFAT information, that all documents he submitted are genuine.

20. The applicant further acknowledged that he was aware that it was not unlikely to find fraudulent documents, but that a few occurrences could not support a generalisation about fraudulent documents.  The Tribunal gives greater weight to the DFAT country information than it does to the applicant’s opinion about the prevalence of fraudulent documents in Bangladesh. 

21. The [Mr A document] is a simple document without any security features that may serve to indicate the document is genuine. It is of concern to the Tribunal that the [Mr A document] is undated. The date stamp at the foot of the document, being [date] October 2019, does not establish the date on which the document was written.

22. [Mr A] was not a witness in the hearing.  The applicant was given an opportunity in the hearing response form he received from the Tribunal to inform the Tribunal of the name of any witness he wanted to give oral evidence in the hearing and to provide the means to contact them. In his response the applicant informed the Tribunal that he did not want the Tribunal to take oral evidence from any witness and provided no contact information in respect of any potential witnesses. It is his right to take that course of action.

23. It is evident that the applicant did not want [Mr A] to give oral evidence in the review. Consequently, the circumstances that led to the writing of the [Mr A document] and the accuracy and reliability of the contents of the document has not been verified in evidence from the person who wrote the document.

24. Moreover, without the assistance of oral evidence from the person who wrote the [Mr A document], the existence and identity of [Mr A]; the authorship of the [Mr A document]; and the authenticity and accuracy of the contents of the document have not been verified by the purported author of the document.

25. The applicant contends the [Mr A document] was written by [Mr A] and that it was written independently of him; that it is a genuine BNP document; and, that it was provided to the applicant in the form it was submitted to the Department and Tribunal. The Tribunal has considered that evidence.

26. The text of the document is set at an angle from the letter head and signature block, and the green strip at the foot of the document. That suggests the text of the document may have been pasted into the document from another document. That is a matter of concern to the Tribunal.

27. Having considered the applicant’s evidence relevant to whether the [Mr A document] is a genuine BNP document; that [Mr A] is the author of the document; that the information in the document is accurate and it was written independently of the applicant; the DFAT country information about the prevalence of fraud; the widespread use of fraudulent documents and the availability of fraudulent political documents; the characteristics of the document; the appearance of the text on the page; and, the absence of evidence from the author of the document: the Tribunal finds the evidence is insufficient to establish to the satisfaction of the Tribunal that the [Mr A document] is a genuine BNP document written by a person known as [Mr A] and that it was issued with the knowledge and consent of an authorised office holder of the BNP.

28. In reaching this view of the evidence, the Tribunal has also given regard to the inconsistency in the name of the branch of the party as it appears in the letterhead of the document, compared to the name of the party as it appears below the name [Mr A]. The Tribunal is of the view that in a genuine BNP document it is unlikely the local name of the party as it appears on party letterhead, would not be written the same way below the signature of the [Position 1] of the entity. That is not the case with the [Mr A document].

29. On the basis of the foregoing considerations concerning the [Mr A document] the Tribunal has given no weight to the [Mr A document].

30. The applicant sought to support his claim for protection with an affidavit that indicates it was deposed to in Bangladesh on [date] October 2019, by his wife, [about] four years after he first applied for protection. The applicant did not inform the Tribunal that he wanted his wife to give evidence and he did not provide her contact details to the Tribunal.  

31. The Tribunal has read and considered the contents of the affidavit. It is self-evident that many of the events described in the affidavit were not witnessed by the applicant. As the Tribunal understands the applicant’s case, he contends his wife is a truthful and accurate person and what is said in the affidavit should be accepted as accurate and reliable.  Nevertheless, in the absence of the applicant’s wife giving evidence in this review, her veracity and the accuracy of the statements of fact made in the affidavit, and the circumstances in which the affidavit was made, being four years after the applicant applied for protection, these are matters that remain unexamined and untested in this review. The applicant provided no explanation for not asking for his wife to be called as a witness in the review. The applicant did not make his wife available to give evidence by providing her contact information to the Tribunal. In these circumstances the Tribunal gives neutral weight to the affidavit.

32. The applicant’s travel history was set out in the record of the delegate’s decision, a copy of which the applicant provided to the Tribunal. His travel history is not in dispute. 

33. At the hearing the Tribunal referred the applicant to parts of his travel and visa history. It is consistent with the travel and visa information the applicant provided to the Department in his original visa application.        

34. On 9 July 2015 the applicant applied for a Sponsored Family Stream (Subclass FA-600) visitor visa.

35. On 30 July 2015 the applicant was granted a Visitor visa FA-600 (second visitor visa).

36. On [date] August 2015 the applicant arrived in [Country 2]. [September] 2015 he departed [Country 2] and arrived in [Country 1]. [In] September 2015 he departed [Country 1] and returned to Bangladesh.

37. [In] November 2015 the applicant arrived in [Country 3] from Bangladesh. He departed [Country 3] and arrived in Australia on [date] November 2015 on his second visitor visa, thereafter he has remained in Australia.

38. On [date] December 2015 the applicant’s second visitor visa expired.

39. On 9 August 2016 the applicant signed his application for a Protection (Subclass XA 86) visa, [number] days after he entered Australia as the holder of his second visitor visa.

40. On 18 August 2016, the application for protection was lodged with the Department 9 days after the applicant signed the application and [number] days after the date of his arrival.

41. The applicant raised his visit to [Country 1] in 2015 in his statutory declaration.  On this occasion the applicant, his wife and children, visited his wife’s [Relative 1] because they had experienced a very stressful time.[20] Considered in the context of the applicant’s claims and evidence, the Tribunal considers this to be a reference to the applicant living in hiding and fearing beatings, arrest, torture, being ‘disappeared’ and murdered by police.  In evidence the applicant acknowledged that he included a visit to [Country 2] in this visit.

    [20] Statutory declaration, [33].

42. In referring to the [Country 1] [[Country 2]] trip the applicant identified the circumstances that worked to allow him to depart and re-enter Dhaka by air without experiencing any problems. On both occasions he used his own passport.

43. The applicant states he was able to freely depart and re-enter the country because he ‘was not a very high up figure in the BNP.’[21] He was ‘a local target, but it was still dangerous and life threatening.’[22] At hearing the applicant elaborated on this aspect of his statutory declaration. He asserted that he was able pass through the airport without being stopped by the authorities because the airport was in a different administrative area from where the political case had been filed against him. The applicant also claimed at hearing the airport is mostly under the administrative control of customs, not the police. In his evidence he did not assert that police did not have a presence at the airport.  

    [21] Statutory declaration, [34].

    [22] Statutory declaration, [34].

44. The reasons he advanced for being able to freely travel in and out of Dhaka by air are materially inconsistent with the contents of the [Mr A document], and the applicant’s description of his political activism in Dhaka. Leading up to his travel to [Country 1] and [Country 2] with his wife and children, the applicant places himself in branch meetings addressing the membership; organising and leading demonstrations and general strikes on the streets of Dhaka in 2013, 2014 and 2015; making public speeches at these various protests; and, motivating members of the BNP in Dhaka to engage in anti-government demonstrations and to participate in general strikes. 

45. Additionally, at hearing the applicant claimed that during a general strike in Dhaka on [date] March 2015, he led a violent attack on supporters of the AL Government. Police arrested him at his home on [date] May 2015. He bribed the police to release him. He then went alone into hiding in the countryside.

46. Moreover, according to the [Mr A document], the applicant had achieved such popularity as party organiser and leader, that the governing party targeted him for death and made many attempts to kill him.

100.   The foregoing circumstances considered as a whole, if accepted as largely true, can reasonably be regarded as evidence that the applicant was a high-profile member of the BNP and anti-government activist, so popular and well know that state sponsored actors targeted him for death and made many attempts to kill him. This evidence is not consistent with the applicant being a low-profile member of the BNP.

101.   Furthermore, the Tribunal regards it as inherently unlikely the applicant would only be targeted in his local area, an area he did not define in his evidence, if in fact he played the role in the BNP and lead anti-government general strikes and demonstrations, and he was so popular that state sponsored actors had targeted him to be ‘disappeared’ or to be falsely prosecuted and executed. 

102.   According to the applicant’s evidence, knowing police would return to his home to take him away, he fled to the countryside.  At hearing the applicant contended that he hid in a number of villages located about [number] kilometres from Dhaka where he lived in the homes of various relatives. To further minimise his risk of capture, he moved from house to house.[23] Nevertheless, he returned to his Dhaka every now and then, to visit his family, but he acknowledges that was a risky undertaking.[24]

[23] Statutory declaration, [27].

[24] Statutory declaration, [27].

103.   Essentially, the applicant’s evidence, if accepted, demonstrates he was at risk of being captured in both Dhaka and the countryside. This evidence is inconsistent with the applicant’s evidence that he was only a local target. This evidence also contradicts the applicant’s claim that he was able to freely leave and re-enter Bangladesh by air between  [August] 2015 and [September] 2015 without being detained at the airport because he was a local target. The expression ‘local target’ appears to relate to a geographic area, the area in Dhaka in which he was at risk of arrest and death: it is lacking in detail and vague, and that is a matter of concern to the Tribunal.

104.   The foregoing consideration of the applicant’s evidence about not being highly placed in the BNP organisation, and that he was only a local target is fundamentally inconsistent with his evidence about his anti-government activities and role in the BNP, and that he was at risk of capture and death at the hands of state sponsored actors in Dhaka and the countryside. Consequently, the Tribunal doubts the truthfulness and reliability of his explanation for being able to leave and return to Bangladesh without any problems.

105.   In the context of the applicant’s evidence about his family visit to [Country 2] and [Country 1] in late 2015, the Tribunal inquired into the applicant’s reasons for not taking advantage of his Australian visitor visa and going on from there to Australia and seeking protection, instead of returning to Bangladesh. According to the applicant he intended to stay in Bangladesh. In his statutory declaration he said he was looking for ways to be safe and he wanted to see if he could live safely in Bangladesh. According to the applicant’s statutory declaration, after he returned to Bangladesh he remained in hiding. Police visited his home. He was absent. They instructed his wife to tell him to report to the police station.

106.   Upon learning of these circumstances, the applicant asked a family friend to visit the police station and inquire if any action had been taken against him. He learnt the police told his friend that there was a prosecution case against him.[25] From this information the applicant knew he had no choice but to leave his country; that his arrest was inevitable and that he was at risk of being unjustly prosecuted or murdered by police. At hearing the applicant also said that family and friends encouraged him to leave Bangladesh. Consequently, he decided to travel to Australia in November 2015. His visa lapsed on [date] December 2015. At hearing the applicant explained he did not leave Bangladesh immediately due to the need to organise and close his business in a proper way. He sold his business before he left the country.

[25] Statutory declaration, [38].

107.   There is no evidence that demonstrates how the applicant was able to sell his business and avoid the authorities while doing so. The applicant’s ability to attend to the sale of his business before he departed for Australia, consideration in the context of the evidence he relies on to establish the risk of persecution he claims he faced leading up to his departure in November 2015, weighs against finding the applicant was at risk of persecution in Bangladesh.

108.   The applicant’s presence in Australia became unlawful for a number of reasons. According to his statutory declaration he wanted to apply for another visa to get some time to think about what to do next. Time passed without him doing anything to regularise his position due to him being stressed and worried. The applicant’s assertion that stress and worry prevented him from making an onshore application for protection is unsubstantiated by medical evidence, or other evidence, it is lacking in detail, vague and unconvincing.

109.   Further, the applicant claims he was waiting to see if ‘maybe, it would be safe for [him] to return.’[26] Members of his family told him not to return. It is difficult to reconcile this evidence with the applicant’s account of the longstanding risk of harm he claims drove him into hiding and then to flee to Australia in November 2015.  The applicant has not provided any credible evidence that establishes a basis on which he might reasonably expect his circumstances in Bangladesh to change so that it would be safe for him to return.

[26] See statutory declaration, [42]–[47].

110.   In addition to the information in the document[27] he provided to the Department and the Tribunal with the date 18 June 2020, and the contents of his statutory declaration he advanced further his reasons for the delay in applying for a protection visa.

[27] Tribunal file: amongst other things, the document sets out reasons for delay in applying for a protection visa.

111.   Essentially, he asserted ignorance: that he was unaware he could make the application. He was stressed and mostly he remained at home. He also asserted that he was waiting to hear from friends and family back in Bangladesh whether AL was still pursuing him. 

112.   The applicant has provided no reasonable basis for expecting his friends and family to be able to establish with any reasonable degree of certainty whether the AL and the police were still intent on persecuting him, or prosecuting and executing him.[28]

[28] Statutory declaration, [46].

113.   The applicant has provided no factual basis on which he could reasonably expect that he was not of continuing interest to the AL, and at risk of death between his arrival in November 2015 and claiming protection in August 2016, a belief he claims drove him into hiding and a belief he claims he continued to hold in November 2015.  The Tribunal finds these further reasons for delay in applying for protection to be inherently unlikely.

114.   The applicant also asserted that it was difficult to leave his family, but he was forced to do so because it was unsafe for him to stay there. The risk to his life was such he could not risk applying for a visitor visa for his wife and children because the application would have jeopardised the grant of his second visitor visa, a risk too serious for him to run. 

115.   The Tribunal informed the applicant it found it difficult to accept that ignorance is a plausible explanation for the delay. The applicant responded that he wanted to live in Bangladesh not Australia. He reiterated that unnamed friends told him it was unsafe for him to return. Having considered the foregoing evidence relevant to the significance of the delay, the Tribunal finds the applicant’s delay in applying for a protection visa weighs against finding the existence of a real chance the applicant would be persecuted for reasons of his actual or imputed political opinions if he is returned to Bangladesh, now or in the reasonably foreseeable future.

116.   The applicant submitted a bundle of documents for the purpose of verifying his claim that he will be arrested on warrant upon his return to Bangladesh and prosecuted for crimes the police alleged he committed with other BNP supporters during a riot that took place in Dhaka on [date] March 2015. As the applicant asserts, the documents support his protection claims. In particular that he will be arrested, tortured and killed or prosecuted and executed, if he is returned to his home country.  In evidence the applicant indicated that a court would sentence him to a lengthy term of imprisonment in respect of the charges alleged against him in the court documents.

117.   One of the court documents purports to be the First Police Information Report relating to the riot.  It purports to have been compiled by police officer [Mr B] and submitted to station command on [date] March 2015 at [time] . The report relates to a riot that occurred on ‘[date]/03/2015 AD about [time].’

118.   The police deposition relating to the riot has the date ‘[date] March 2015 AD’ at the foot of the page, indicating the document existed before the date of the event that is the subject of the deposition, being [date] March 2015. In the document police officer [Mr B] deposes that he was patrolling at the scene of the riot ‘today [date] March 2015 AD, at around ‘[time] in the morning’ and the incident started after that time when 60/70 members of the BNP and its supporter organisations attacked members of the AL. Whereas in his First Information Report, he recorded ‘Date and time of incident: [date]/03/2015 AD Time: About [time].’

119.   Additionally, the applicant also relies on a document that purports to be a court record of several orders made by the ‘Chief Metropolitan Magistrate, Dhaka’ in the ‘[named] Court, Dhaka’ in relation to bail applications made by the applicant’s co-accused in respect of the offences said to arise from the riot. The riot is also the subject of the First Information Report and the police Deposition. The document has the words ‘ORDER SHEET’ at the top of the first page (the document).

120.   According to the ORDER SHEET, the first bail order was made on [date]/03/2015 AD. On the face of the document, it is obvious that the year in which the order was made has been altered using handwriting to make it appear the order was made in 2015. The alteration has not been initialled. The evidence does not identify who altered the date and the circumstances in which it was altered. The alteration of the date is a matter of concern to the Tribunal.

121.   The altered date states the first bail order was made on [date]/03/2015, well before the date on which the applicant asserts the riot occurred, being [date]/03/2015, and before the date of the riot according to the First Information Report, and before [date]/03/2015, the date the riot occurred according to the police Deposition. The First Information Report and the police Deposition are both attributed to police officer [Mr B].

122.   According to the record of the bail hearings, the second bail hearing was held on [date]/03/2015 AD, before the date of the riot occurred according to the police Deposition.

123.   The conflicting dates in the various court documents and the applicant’s evidence as to the date of the riot, is a material consideration and relevant to the Tribunal’s assessment of the evidentiary value of the court documents.

124.   The bundle of court documents also contains Charges said to be pending against the applicant, and an arrest warrant said to have been issued by a [Court] in Dhaka, on [date] February 2018, sometime after the applicant arrived in Australia for the second time on a visitor visa.

125.   In evidence the applicant said what is written in the court documents is correct. Later in evidence when the Tribunal referred to various date discrepancies in the court documents compared to the date he claims the riot occurred, the applicant attributed the discrepancies to several factors: typographical errors, clerical errors, printing mistakes, and translation errors. The applicant asserted that according to his understanding the original court documents are correct. The applicant’s various explanations for the date discrepancies in the court documents, impress the Tribunal as being speculative, and the Tribunal does not consider them to be reliable.

126.   The Tribunal informed the applicant that DFAT country information available to the Tribunal indicates that fraud is prevalent in Bangladesh; and that fraudulent court documents are readily available and commonly used in Bangladesh. The applicant was informed that the date discrepancies caused the Tribunal to be concerned that the documents are not genuine. The applicant asserted the documents are genuine; and that he was aware of fraudulent documents in Bangladesh. The applicant indicated he was unaware of the scale of the errors in the court documents until the Tribunal brought the errors to his attention.  He also indicated that he did not see any errors in the documents until shortly before the hearing. The applicant acknowledged he did not tell his present representative about the errors that he knew before the hearing to be in the documents.

127.   After considering the date related discrepancies in the court documents; the applicant’s evidence in relation to the discrepancies; and the relevant country information, the Tribunal is not satisfied the court documents are genuine. Accordingly, the Tribunal gives no weight to the documents. 

128.   According to the applicant’s oral evidence, he first became aware the court documents had been issued against him when the police arrested him at his home, and he bribed them into releasing him.  On that same occasion, according the applicant’s evidence at hearing, the police told him a case had been issued against him and that police had filed charges against him. The police also told him the charges related to rioting, shooting, and bombing and that he was under arrest in relation to that case.  

129.   Inconsistently with this evidence, the applicant indicated in his statutory declaration that he learnt the prosecution case had been brought against him after he returned from [Country 1]. He learnt this information from a friend he sent to the police station to ask if any action had been taken against him. This inquiry was prompted by police visiting his home address and inquiring into his whereabouts. This evidence is materially inconsistent with the applicant’s evidence which indicated he was told by the police he bribed at his home, well before his trip to [Country 1], that charges had been filed and a case had been brought against him. This is a material inconsistency in the applicant’s evidence which casts doubt on the accuracy and veracity of the applicant as a witness in this review. It also weighs against accepting the applicant participated in an anti-government demonstration on [date] March 2015, the event he asserts is the subject of the court documents he relies on in this review.

130.   The applicant stated in the employment history section of his visa application form he signed on 9 August 2016 that he has been unemployed since November 2015.  In a document he provided to the Tribunal dated 18 June 2018, whilst explaining his reasons for delay in applying for a protection visa, he stated he was stressed after arriving in Australia, to the degree that he stayed inside his home for almost the entire period between December 2015 and August 2016. In giving regard to this information and the other information provided to the Department and the Tribunal relevant to the applicant’s financial circumstances in Australia, the Tribunal, in conformity with the requirements of s 424AA of the Act informed the applicant of certain financial information that was available to the Tribunal and related to his financial circumstances in Australia.

131.   The applicant was informed the information may suggest he has been employed and working in Australia; and that he was not as he claims to be: dependent on rental income from properties in Bangladesh; financial assistance from friends and food from food banks; and, that he did not stay at home and rarely leave his home between December 2015 and August 2016. The applicant was informed that the financial information available to the Tribunal may be the reason or part of the reason for the Tribunal determining he is not genuinely seeking protection from harm in Bangladesh, but instead he is searching for employment and economic opportunity. The applicant was also informed the information may case doubt on his credibility as a witness in this review.

132.   The Tribunal informed the applicant that the information indicated that between 26 February 2016 and 2019, he transferred various sums of money totalling [amount] to his wife in Bangladesh. In his written response to the s 424AA matters, the applicant accepted that the financial information was correct. He said the funds were given to him by charitable friends and community sources who wished to remain anonymous.

133.   After considering the applicant’s written response to the concerns raised pursuant to s 424AA, and the unverified information concerning the unidentified sources of the [amount], and without accepting the applicant’s explanations as to how he came by the funds to be accurate and reliable, the Tribunal has decided to disregard the information that was the subject of the s 424AA procedure, and to give it no weight in this review.

134.   The applicant claims members of the AL regularly extorted [products] and money from his business and that other businesspeople were also forced to make unwarranted payments to members of the AL. On this basis the applicant may be regarded as a member of a social group comprising businesspeople in his home country. In evidence the applicant indicated he opened his [shop] in 1997. He operated the business successfully until he sold it shortly before he departed for Australia in late November 2015. According to the applicant his business continued to operate during the period he was in hiding. It operated with the assistance of friends and family. The business was his family’s primary source of income. In evidence the applicant described himself as a wealthy businessman. According to his evidence he owns rental properties in Bangladesh, and he left the proceeds of sale from his business with his wife, as money for her to draw on to support herself.

135.   The evidence relevant to the applicant’s financial circumstances in his home country and his history of success in business, considered in relation to the whole of the evidence, and accepting that Bangladesh experiences significant levels of corruption, including official corruption, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would suffer significant economic hardship in Dhaka, or elsewhere in Bangladesh, that would threaten his capacity to subsist, if he were removed to Bangladesh now or in the reasonably foreseeable future. 

136.   Based on the evidence considered as a whole, the Tribunal has decided the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant was a supporter or member of the BNP; that he participated in anti-government activities; that he would be arrested and prosecuted if he returned to Bangladesh; that he would engage in anti-government activities in Bangladesh in the furthre; that he would be persecuted by the police, or other state or non-state sponsored actors for reasons of his actual or imputed political opinions if he is removed to Bangladesh now or in the reasonably foreseeable future.

137.   The evidence considered as a whole, is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subjected to serious harm in Dhaka or any other part of Bangladesh, for reasons of his actual or imputed political opinions, if he is removed to Bangladesh now or in the reasonably foreseeable future.

138.   The evidence considered as a whole, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be persecuted in any part of Bangladesh for reasons of his actual or imputed political opinions or, for any of the other reasons specified in s 5J(1)(a) of the Act, if he is removed to Bangladesh now or in the reasonably foreseeable future.

Complementary protection

139.   The Tribunal will now consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A non-citizen in Australia will satisfy the criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that the noncitizen will suffer significant harm. The definition of significant harm is stated in s 36A of the Act which is reproduced in the attachment to this decision, and it has been applied in this decision.

140.   In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246], [297], [342] the

Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee
criterion in s 36(2)(aa) of the Act. Therefore, for the reasons outlined above in relation to
whether the applicant meets the ‘real chance’ test, the evidence is insufficient to establish to
the satisfaction of the Tribunal that, as a necessary and foreseeable consequence of the
applicant being removed to Bangladesh now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm.

141.   Accordingly, the evidence, considered as whole, is insufficient to establish to the satisfaction of the Tribunal that the applicant meets the criterion in s 36(2)(aa) of the Act.

FINDINGS

142.   Having considered the applicant’s claims individually and cumulatively, 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).

1. 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). Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

145.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Haag
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.

…