2007156 (Refugee)

2007156 (Refugee) [2024] AATA 1318 (10 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Riza Boncodin
CASE NUMBER:  2007156
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:James Silva
DATE:10 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2024 at 12:22pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – Bangladesh Nationalist Party (BNP) supporter – threats of harm by Awami League – false criminal charges – property dispute – online threats – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [man] from Bangladesh, who claims to be a citizen of that country.
The applicant most recently arrived in Australia [in] February 2015, as the holder of a visitor (subclass 600) visa. On 24 March 2015, he applied for a protection (class XA) visa. On 21 September 2015, a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
On 26 February 2019, the Tribunal (the ‘first Tribunal’, differently constituted) affirmed the delegate’s decision. The Federal Circuit Court issued consent orders remitting the matter to the Tribunal for reconsideration, on the basis that the first Tribunal had failed to consider a claim that arose on the materials before it. The matter is now before the Tribunal pursuant to the order of the FCC.
For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
CLAIMS, AND CRITERIA FOR A PROTECTION VISA
The applicant is a Bangladeshi businessman who claims to support the Bangladesh Nationalist Party (BNP), Bangladesh’s main opposition party, and to have been actively involved in its student wing (Jatiyatabadi Chhatra Dal, JCD) and its youth wing (Jatiyatabadi Jubodal, JBD).
The applicant claims that, after its victory in the December 2008 elections, the ruling Awami League (AL) increased harassment of BNP activists and supporters. He was subject to, among other things, intimidation, threats and attacks (or attempted attacks).
Since arriving in Australia in February 2015, he has become aware of false criminal charges that were filed against him in early 2015. In Australia, he has participated in activities conducted by local groups affiliated with the BNP and has posted material on social media. These have prompted further threats.
The applicant claims to fear that his AL political opponents and government agents will persecute or significantly harm him if he returns to Bangladesh, including through their pursuit of the politically motivated false charges, and their opposition to his online social media postings. He claims that he is unable to obtain State protection (as the Bangladeshi authorities are the ones pursuing him), and that relocation within Bangladesh is not a safe or reasonable option for him.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
An excerpt of the relevant law is in Attachment A.
CLAIMS AND EVIDENCE
Background
The applicant is [age] years old and from [Village 1], Bagerhat district, in Khulna division, south-western Bangladesh. [Village 1] is about [number]km from the capital, Dhaka. The applicant is an ethnic Bengali and a Sunni Muslim, and speaks Bengali (Bangla) and English.
The applicant attended primary and secondary school in Bagerhat, completing his Secondary School Certificate in [year], aged 15. He then moved to Dhaka, where he attended [College 1] to complete his Higher School Certificate (HSC) in [year], and later [College 2] where he completed a Bachelor [degree] course in [year] (aged 21). In Dhaka, he initially lived in [Suburb 1] (1995-2000), then [Suburb 2] (2000-2005) and finally [Suburb 3] (2005 until his departure for Australia in early 2015). The applicant has claimed that he spent much of this time ‘in hiding’, staying with family and friends in other parts of Dhaka
After completing his studies, the applicant worked as a manager for [Company 1], until November 2004. He then worked as a product manager for [Company 1 products] with a [Product 1] importer. In July 2009, he established his own business, [Business 1], a distributor of [Product 1], in the Dhaka suburb of [Suburb 4]. He wrote on the application form that the business was ongoing at the time of application.
The applicant married in November 2009. He said that his wife is a [occupation]. She is living with her immediate family in Dhaka. The applicant told the Tribunal that she has suffered ‘panic attacks’ (implicitly, linked with his protection claims and/or the couple’s separation), and is not working.
The applicant nominated his parents and [siblings] as his close family members. He stated that his parents lived in the family home in Bagerhat, but also that they used to visit a brother in Dhaka and stay there. The applicant’s father died in September 2021.
The applicant has three brothers, who feature in aspects of his protection claims. One brother, [Brother A] is [age] years old and runs a [store] in Dhaka. The next, [Brother B] is [age] years old, and lives in the family home in Bagerhat. A young brother, [Brother C] is [age] years old and currently seeking asylum in [Country 1]. The applicant’s [sisters] are married and live with their husbands’ families in Bagerhat.
The applicant entered Australia on a Bangladeshi passport issued [in] 2011, valid for five years. He indicated on his protection visa application the following travel abroad between 2012 and 2014, which is evident also from the visa stamps in his passport:
§ January 2012: [Country 2]
§ September 2012: [two countries]
§ November 2012: [one country]
§ July 2013: [Country 3] (en route to [Country 4]), [Country 4]([Organisation 1] meeting and tourism), [four other countries] (tourism)
§ 29 August to 12 September 2014[1]: [Organisation 1 meeting], Adelaide.
[1] These dates are evident from visa stamps in the passport, a copy of which the applicant provided to the Department.
The applicant told the first Tribunal that he was living in share accommodation in [Sydney] with other Bangladeshis, working [casually]. He has no relatives in Australia, and does not send money back to Bangladesh because he does not earn enough.
Evidence
The evidence before the Tribunal includes the following relevant material (not exhaustive):
To the Department
§ Protection visa application form lodged on 24 March 2015. The applicant’s protection claims are set out in a four-page undated statement attached to the application form, and a submission dated 20 March 2015. Brief responses on the application form give some supplementary information.
§ Photocopy of the applicant’s Bangladesh passport, issued in Dhaka [in] 2011 and valid for five years. This shows numerous visa stamps evidencing his extensive travel.
§ Supporting documents:
-   Letter dated 4 January 2015 from [Mr D], BNP President, [Ward 1], Dhaka.
-   Copy of trade licence (with English translation) for the applicant’s business.
§ The applicant provided copies of a UK Home Office Operational Guidance Note – Bangladesh, issued in September 2013; a Brown Political Review article Political Persecution in Bangladesh, from January 2015; and a Human Rights Watch chapter on Bangladesh, also from 2013. (The Tribunal drew on more recent country information in this review.)
§ The protection visa interview (‘Department interview’) held on 2 September 2015, a copy of which is on the Department file and which the Tribunal has listened to.
§ The protection visa assessment (‘delegate’s decision record’) of 21 September 2015, which is the subject of this review. The applicant submitted a copy of this to the first Tribunal, with his application for review.
To the first Tribunal
§ The review application received on 9 October 2015 has attached to it a copy of the delegate’s decision record.
§ Applicant’s statutory declaration, 6 October 2018.
§ Submissions dated 28 September 2015 (from [Migration Service 1]), 4 October 2018 and 9 October 2017 ([Ms E], Parish Patience Legal and Migration), with clarifications and corrections in subsequent submissions dated 12 October 2018 and 11 February 2019.
§ Supporting documents:
   First Information Report (FIR) dated 18 January 2015 (copy of Bengali language original, with English translation)
   Letters of support:
§ Mr Md. Atikulislamimotin [sic], Vice President, BNP Dhaka City North, dated 22 August 2017 (This appears to be a transliteration of the name Atiqul Islam Matin, or similar.)
§ Mr Mosleh Uddin Arif, President of Bangladesh Nationalist Party (BNP) Australia, dated 19 August 2017. Also, Mr Mosleh Uddin Arif provided a letter describing the group’s work and profile in Australia; and there is a newspaper article (translated) about the inauguration of new members on 20 August (year not stated).
   Photographs of the applicant at BNP events in Australia (annotated, from February 2017 to April 2018).
   Screenshots of [Social Media 1] posts, in which the applicant has shared political (pro-BNP and anti-government) material (partial screenshots with weblinks that do not appear to work).
§ Other documents that are not directly linked to his protection claims:
   Business licence (issued in 2013/2014 and renewed in 2014/2015), business cards and other work-related materials from Bangladesh.
   Membership certificate for [Organisation 1], 7 August 2012; and photographs of the applicant at unspecified [Organisation 1] events.
   Letter from [Law Firm 1], dated 2 November 2017, concerning a property lease dispute in [Suburb 5] NSW; applicant’s receipt for services from [Law Firm 1].
§ Country information: English language reports about the arrest of BNP leader Begum Khaleda Zia and other arrests on fake warrants or fake cases. An untranslated Bengali language newspaper has some text highlighted, which may be one of the translated texts.
§ The applicant appeared before the first Tribunal on 9 October 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengali (Bangla) languages. Mr Md. Mosleh Uddin appeared as witness, and [Ms E] accompanied the applicant as his representative
To the current Tribunal
§ The applicant’s representative uploaded various documents to the Tribunal’s portal, sometimes without explanation:
   Further letter of support from Mr Mosleh Uddin Arif, dated 22 July 2023.
   Photographs from a BNP meeting in Australia, 21 August 2023.
   Miscellaneous documents, such as a photograph of an injured older man; medical prescription for the applicant’s father; [Country 1] Immigration Office notice that [the applicant’s Brother C] would have to depart [Country 1] by 15 September 2023; and NSW Department of Regional NSW Public Works certificate and letter of appreciation thanking the applicant for his service during the COVID hotel quarantine program.
§ Numerous press articles, in English, concerning opposition political activities, including arrests and clashes, in the period from February 2018 to July 2023.
§ At hearing on 8 September 2023, the applicant provided a [Social Media 1] screenshot dated [in] August 2023, showing him and other people at a function in [Suburb 6]. The comments include highlighted text, in Bengali with English translation, from a [Mr F].
The applicant appeared before the current Tribunal at a hearing held on 30 August 2023 and 8 September 2023. The hearing was conducted through a Bengali-English interpreter. At the first hearing session, the applicant gave some evidence in English. Although fluent, his diction was unclear at times, and the Tribunal confirmed his statements through paraphrasing where necessary. At the second hearing session, the applicant gave his evidence in Bengali.
Following the hearing, the Tribunal received a submission dated 15 September 2023. This summarised the applicant’s protection claims, and provided the applicant’s comments and responses to information provided at hearing under s.424AA. This concerned the Tribunal having been unable to locate in public records the names of the candidates whom the applicant claimed to have stood in his local electorate in the 2008 parliamentary elections.
§ Attached to the letter was a ‘to whom it may concern’ letter in English, dated 12 September 2023 from a [Mr G], ‘party colleague’.
§ The letter also refers to the applicant having booked an appointment with a psychologist for 22 September 2023, on the representative’s recommendation. The Tribunal has received no further submissions relating to this.[2]
[2] The Tribunal notes the general nature of the letter of support. The submission of 15 September 2023 requests the Tribunal to take into account the applicant’s feeling of psychological pressure when assessing his evidence, but does not present any new claims based on mental health. In these circumstances, the Tribunal determined that no further hearing was required.
The applicant’s representative Ms Riza Bocondin, from Parish Patience Immigration, accompanied him to the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Country of reference
The applicant claims to be a national of Bangladesh. He entered Australia on a Bangladeshi passport, speaks Bangla (Bengali), and is familiar with Bangladesh. There is nothing to suggest that he has any other nationality. The Tribunal accepts that the applicant is a national of Bangladesh. This is therefore the country of reference for the purpose of assessing his protection claims.
Assessment of claims
When assessing claims, the Tribunal must make findings of fact in relation to the claims made, to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[3] In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
[3] The Tribunal has before it the AAT’s Migration and Refugee Division , Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re-issued February 2019 at [203]-[204] (UNHCR Handbook).
The Tribunal found much of the applicant’s oral evidence vague, digressive and changeable. On several occasions, he did not reply directly to the Tribunal’s question, but instead offered information relating to different incidents, topics or time periods, sometimes without specifying these. Even after allowing for the possibility that this reflects some nervousness or stress, or that it is simply his presentational style, the Tribunal is concerned that the applicant was sometimes deliberately blurring his claims and evidence.
In this context, the Tribunal acknowledges that prolonged application processing timeframes and separation from family may be stressful, and that this, together with the passage of time, may affect a person’s presentation of their claims and evidence. The applicant had an appointment to see a psychologist on 22 September 2023 but, as noted above, the Tribunal has not received any further submissions relating to his mental health.
An overriding concern in this case is that the applicant’s education, business activities and travel history – including after the AL government came to power in early 2009 – do not sit well with his claim to have been a local BNP youth wing leader through most of this period, to have been living in fear and often in hiding, and to have become a target for AL activists. His claims were largely unsubstantiated and, in the Tribunal’s view, he was prone to exaggerate and misconstrue events (in both Bangladesh and Australia) to bolster his protection claims. Overall, the Tribunal has broad concerns about the credibility of his claims and evidence. Its full assessment follows below.

At hearing, the applicant noted his long absence from his wife and other family members, and that he had been unable to attend important events such as his father’s funeral. He invited the Tribunal to accept his willingness to endure such hardship as evidence that he genuinely fears returning to Bangladesh. While the Tribunal accepts that these factors indicate the applicant’s resolve to remain in Australia, it finds them to be of little probative value in determining the veracity of his protection claims, or whether they invoke Australia’s protection obligations.
Bangladesh: Developments up to 2015
Political interests
In his primary application (the statement of claims and completed answers on Form 866C), the applicant described his positions in the BNP, but did not elaborate on his political views as such.
There was discussion of this at the hearings before both the first and current Tribunals. The applicant said that he had a ‘weakness’ for politics and was drawn to the BNP because he liked its leader and its ideology. In this context, he said at the latest hearing that he admired the former president Ziaur Rahman, who loved Bangladesh; and he shared the BNP’s commitment to democracy and patriotism. The applicant agreed with the Tribunal’s observation that most parties promoted such broad principles; he added that the BNP differs from the other parties because it puts them into practice.
Asked about his family’s and friends’ political views, the applicant replied vaguely that his family are not interested in politics. He added that his older brother [Brother A] (who lives in the family home and appears to have taken over as de facto head of the family since the father’s death in 2021) ‘hates’ it, and the applicant’s political interests have caused friction between them. The applicant went on to say that his younger brother [Brother C], who is in [Country 1] seeking asylum (on political grounds), is the only family member who is engaged in politics. He did not have any examples of correspondence between the two to demonstrate that they have a shared political opinion.
According to the most recent DFAT country information report[4], the AL and BNP have long dominated Bangladesh’s politics. It describes the former as ‘broadly secular, liberal, rural-based and in favour of relations with India’, contrasting it with the BNP as being ‘broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.’
[4] DFAT, Country information report – Bangladesh, November 2022, paragraph 3.65, page 20.
The Tribunal found the applicant’s account of his political views and the social context for his political engagement to be vague and simplistic. Nonetheless, it notes DFAT’s observations that: “Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.”[5] The Tribunal infers from this that many genuine BNP supporters will have a limited understanding of the party’s ideology or history, and might support it on a simple or naïve view of the party’s stated intentions, or based on an affiliation to its leaders. As such, the applicant’s vague description of BNP policies does not necessarily undermine his claim to support the party strongly, although it may be relevant when assessing whether he has any official positions and influence. The Tribunal now proceeds to assess the applicant’s political engagement.
Political activities while studying (to 2001)
[5] Ibid, para 3.67, page 21.
Primary application: The applicant wrote that while at secondary school, he became a general member of the BNP’s student wing, the ‘Chhatra Dal’ or JCD. He continued his association with the JCD during college ([College 2], which he attended [specified years]). As a JCD activist, he stood for election and became ‘Vice President (VP) of [College 2]’, by which the Tribunal understands him to mean the Vice-President of the JCD at the college (rather than the political party itself). He wrote: ‘I became well known as a Chhatra Dal leader within the BNP party and others in Bangladesh’.
Review application: At hearing before the current Tribunal, the applicant confirmed his claim to have joined the JCD at secondary school and later, at [College 2]. He recalled the name of the president at [College 2]. He said that he was the sole vice-president. Acting on the president’s instructions, he typically recruited members among new incoming students. He also used to convene political meetings and invite JCD members to attend.
The Tribunal noted that [College 2] is a prominent public educational institution in the [capital]. It also referred to country information about the JCD and its counterpart AL-affiliated student wing, the Chhatra League. It drew on, among other materials, the following passage in the most recent DFAT country information report:
Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, professionals (such as doctors, lawyers), and labourers.
These organisations are sometimes known by other names, such as ‘fronts’, ‘wings’ or ‘leagues’. The largest of these are the student wings, of which many former students are still members. AL’s student wing, the Bangladesh Chhatra League (BCL) has millions of members. The BNP version, the Chhatra Dal, is also active and has been involved in violence in the past. The two sides periodically engaged in violence, for example around Dhaka University and the Dhaka High Court in April and May 2022. Shopkeepers claimed that they had been subjected to extortion by the BCL, protest against which formed part of the reason for the 2022 violence. Protesters used weapons such as machetes and batons.[6]
[6] DFAT, Country Information Report – Bangladesh, November 2022, paras. 3.89-3.90.
Against this backdrop, the Tribunal queried whether the applicant had any documentary evidence (such as photographs or correspondence) from his past role as JCD vice-president at [College 2]. The applicant replied that he did not think to document his activities during this period. Asked whether he witnessed or was involved in any violent clashes, he replied that the AL-affiliated Chhatra League students were violent; this was almost ‘normal’ for them.
The Tribunal enquired how much time these activities took up, given that the applicant completed his Bachelor [degree] in three [years] with no apparent disruption or delay due to any political commitments. He replied obliquely that he and other JCD leaders used to divide the students into different groups (perhaps implying that they tried to work efficiently), and that he had a ‘selfless’ interest in working for the party, without expecting anything in return. He commented that when he undertook the bachelor degree course, there were no ‘session gaps’. The Tribunal took this to mean that the college was able to offer the course over the three years, without disruptions (for political or similar reasons). The applicant did not offer any further insight as to how he juggled his study and political commitments during this period.
If taken at face value (which the Tribunal does not do), the applicant’s claimed position as JCD vice-president at one of Bangladesh’s most prestigious public colleges could potentially lead to him becoming ‘well-known [,,,] within the BNP party and others in Bangladesh’, as claimed in his undated statement to the current Tribunal. However, even allowing for the passage of more than 20 years since this claimed political work, his description of his activities in this role was vague and unsubstantiated. The applicant’s completion of his course within the scheduled three years, despite the demands of his (claimed) political work and the prevalence of political clashes between rival student wings on this and other campuses, adds to the Tribunal’s doubts.
Overall, the Tribunal considers the applicant’s account of his role with the JCD up to [year] to be weak and inconclusive. (For findings, see below.)
Subsequent political interests ([year] to 2015)
The applicant claims that he continued his active involvement in BNP politics after completing his studies, i.e. while working as a manager for [Product 1] retailers/importers, and later establishing his own business. In his original statement, he did not give any details of what this political work entailed, between [year] and 2010.
The applicant claims that in January 2010, in recognition of his active role and prominence, he was appointed as ‘Organising Secretary’ of the Jubodal (Jatioyatabadi Jubodal, JBD, BNP party’s youth wing) for [Ward 1] of Dhaka City - acting on the instructions of former member of parliament [Mr D], and other politicians. DFAT noted, in relation to the major parties’ auxiliary organisations, including their youth wings, that ‘in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities.’[7] It also noted that they are often involved in significant violence, both between rival parties and through factional infighting.[8]
[7] DFAT, Country information report – Bangladesh, November 2022, para. 3.91, page 24.
[8] Ibid, 3.93, page 24.
At hearing, the applicant said that he first joined the Jubodal in 2001, as an ordinary member, when [Mr D] was the ‘area leader’ for [Ward 1]. The Tribunal notes that this is one of 64 areas in Dhaka City North Corporation (there is one other municipality, Dhaka City South Corporation). According to Banglapedia, [Ward 1] spans the thanas (police station areas) of both [Suburb 2] and [another suburb]. The applicant said that, while with the Jubodal from 2001 to 2015, he worked for [Mr D], calling members and providing support for meetings. Again, this was at a general level, and the Tribunal was unable to elicit any more specific examples of the applicant’s work. Asked what additional responsibilities he had following his appointment as Organising Secretary in 2010, the applicant said that following the AL election victory in 2009 (i.e. the December 2008 parliamentary elections), he was responsible for contacting members by telephone or text, and distributing information.
In response to the Tribunal’s questions, the applicant said that he did not have any contemporaneous documentary evidence from the time, such as photographs or correspondence.
The Tribunal queried whether – considering the political instability throughout this period, and the AL’s aggressive pursuit of its political enemies after its December 2008 election victory, the applicant witnessed any violence, in particular between Jubodal and the rival AL youth wing. He initially replied that he only wants to pursue peaceful politics, but when pressed about whether he had witnessed violence, responded vaguely that he did.
The applicant told the Tribunal that he was enrolled to vote. He appeared to indicate that he might have a voter ID card with him at the hearing, but was unsure, and did not find or present it.
In relation to the 2008 parliamentary election[9], the applicant said that he campaigned for the BNP candidate. He could not recall the name of the constituency, indicating that [Ward 1] had been allocated to different constituencies over time. After some hesitation, he recalled that he had campaigned for a BNP candidate called ‘Mohiuddin Joshin Alam’[10] and, also with hesitation, that the AL rival’s name was ‘Al-Haj Moghbul Hussain’. The Tribunal noted that it had not been able to locate these names in the list of candidates for all 20 Dhaka seats in the 2008 parliamentary elections[11]. This, together with the applicant’s uncertainty about who he campaigned for, could lead it to disbelieve that he was actively involved in the campaign in 2008, or in politics generally.
[9] Relevantly, the BNP boycotted the 2014 parliamentary election
[10] The spelling or correct transliteration of this is unclear; in any event, it does not correspond to published records of BNP candidates in Dhaka at the time.
[11] Online election archive by Psephos.adam-carr.net:
The Tribunal put the particulars of this information – namely that the BNP and AL candidates’ names he had offered did not appear in the candidate lists for any of the 20 Dhaka constituencies for the 2008 national parliamentary elections – pursuant to the procedure set out in s.424AA. It agreed to the applicant’s request for more time to consider his comments and responses to the information, and to provide these in writing.
A post-hearing submission with the applicant’s comments/response to the information[12] appears to acknowledge that the applicant could not state the name of his local candidates; it refers vaguely to ‘inconsistencies in the testimonies’. It attributed this in part to mental stress. In the submission, the applicant stated that his constituency in the 2008 elections was Dhaka-13. He wrote that he actively supported BNP candidate ‘[Mr D]’, who ran against AL candidate [named]. The applicant provided several reports[13], which identify both candidates as being from Barisal, and the BNP candidate [Mr D] as the ‘General Secretary of the BNP’s youth wing’. The Tribunal notes that the applicant referred to [Mr D][14] in his original statement of claim and provided a letter purportedly from [Mr D] (considered below). Even if (as suggested) the applicant’s inability to identify him at hearing as the BNP’s 2008 parliamentary candidate was (as claimed) a momentary slip, the Tribunal considers that the applicant’s uncertainty also about the name of the constituency and the AL candidate casts doubt on his claim to have played a key role during the BNP election campaign in 2008.
[12] The submission of 15 September 2023 characterised this as the Tribunal’s ‘request’ that the applicant provide details of the local constituency and candidates for the 2008 parliamentary elections, but the Tribunal understands the submission as a whole to be his comments/response to the adverse information put to him at hearing under s.424AA.
[13] Daily Star, Dhaka-13: Battle of Barisal in Mohammadpur, December 26, 2008 and Amar MP (a voluntary social non-profit organisation): Electoral Area Results Statistics: Dhaka-13
[14] Note: ‘Syed’ is an honorific, and does not appear in all versions of his name.
The Tribunal noted that the applicant started his own business, [Business 1], in mid-2009. This raised several questions about his political profile and interests, in two respects: (a) his confidence in setting up a business during 2009, given the AL’s aggressive pursuit of its BNP opponents since its electoral win; and (b) how he managed to balance the demands of a new business with (claimed) ongoing political interests. The applicant replied that, following the AL’s election, he had no prospect of obtaining government employment. Moreover, he wanted to work for himself, and thought that by doing so he would be able to support his family and also the party. He also added that the AL did not know that he operated the shop at the market. The Tribunal queried this, given the applicant’s claimed local profile. The applicant explained that when he started his own business in mid-2009, the local market management committee consisted of persons with links to the previous government. Furthermore, he employed people to operate the business on his behalf (implicitly, as a precautionary measure, given his political profile). The Tribunal found these responses improvised and unconvincing. It considers them inconsistent with the applicant’s claim to have established a profile, locally and nationally, as a JCD leader by this time.
The applicant provided some letters of support that addressed his (claimed) political activities in Bangladesh. These are, in brief:
§ A ‘to whom it may concern’ letter dated 4 January 2015 from [Mr D], President of the [Ward 1] JBD branch, confirms that the applicant is a bona fide BNP member; and that, from January 2010, he was the Organising Secretary of the Jubodal for [Ward 1] of Dhaka city.
§ A letter dated 22 August 2017 from Mr Md. AtikulIslamiMotin (probably a transliteration of Md Atiqul Islam Matin), Present of the Mohammadpur Thana BNP branch, describes the applicant as an ‘active political member’ and Joint Secretary of the Mohammadpur Thana BNP (note: this implies it is a position with the BNP party, rather than its youth wing).
§ A letter dated 19 August 2017 from Mr Md. Mosleh Uddin Arif, President of the Bangladesh Nationalist Party (BNP) Australia refers to the applicant as having been a BNP organising secretary under Mohammadpur Thana BNP.
§ A ‘to whom it may concern’ letter dated 12 September 2023 – submitted following the hearing - from a [Mr G], ‘party colleague’, appears to state that the applicant was one of ’20-25 engaged employees [who] served as party leader and gave their time and effort without compensation’, for the Dhaka-13 constituency. The letter, in English, on BNP party letterhead, appears to be a series of dot points (incomplete sentences without clear subject or context) designed to assist the author in crafting a letter.
The Tribunal notes that each of these letters appears to have been written at the applicant’s request, to support his protection visa application. This may reflect the authors’ satisfaction that he is a genuine BNP supporter, but the letters are of limited value as independent corroboration of the applicant’s claimed positions and profile (particularly when compared to other material, such as contemporaneous photographs or similarly documentary evidence).
At hearing, the Tribunal queried the inconsistent references in these documents to the applicant as the Organising Secretary of the Jubodal in [Ward 1], on the one hand; and as the Joint Secretary of the BNP (party) in Mohammadpur Thana, on the other. This potentially raised questions about the reliability of the letters, or indeed whether the titles had any real significance. In relation to Mr Matin’s letter, the applicant noted that the ward is a constituent unit of the thana, so he had in fact been working ‘under’ Mr Matin. The Tribunal is not satisfied that this adequately explains Mr Matin’s characterisation of the applicant’s position. The applicant’s casual response to these inconsistencies, coupled with his vague descriptions of what these roles entailed and how he balanced them with his business activities, all raise serious doubts that the applicant played any such role in the Jubodal, or in the BNP party itself, during this period.
Adverse experiences in Bangladesh (up to August 2014)
As noted above, the applicant claims to have been engaged in political activities with the Jubodal up to his first departure for Australia, in August 2014. Country information indicates that after their 2008/2009 electoral victory, the AL government and its agents were oppressive towards their BNP opponents, although the applicant claims that he managed to avoid direct harm by taking precautions.
In his primary application, the applicant described his experiences during this period in the following terms:
§ After their 2009 election victory, the AL party, their activists and thugs started to target BNP opponents for ‘various oppression, torture, detention, kidnap and extrajudicial killings’.
§ After his selection as Jubodal Organising Secretary in January 2010, the applicant became an ‘eyesore’ to the AL. He was in constant fear of being harmed, detained, kidnapped or killed.
§ Despite these threats, he managed to avoid harm, by hiding with friends and family, and by arranging for someone to run his business on his behalf.
§ He travelled to numerous countries (as noted above, these included [Countries 2, 3 and 4, and several others] in the period from January 2012 to July 2013; and Australia in August/September 2014). In his original statement of claims, the applicant wrote that he was trying to spend as much time as possible outside Bangladesh; checking if he could remain there safely; and also waiting to see if things changed in Bangladesh.

The Tribunal alerted the applicant at hearing that his activities and conduct during this period – including (as noted above) his establishment of a business in mid-2009, his return travel to [Country 2], South East Asia and Europe in 2012 and 2013, and his return trip to Australia in August/September 2014 - were difficult to reconcile with his claim that the AL campaign against its political opponents made him fear for his safety; and that he had to take precautions such as going into hiding and have others operate his business for him. It noted among other things that he had submitted trading licences for his business, [Business 1],[15] which included his full personal details and residential address, and which would therefore have been easily accessible to others, including any political opponents.
[15] The applicant submitted documents for [Business 1] that included a record of trade licence renewals for 2008/2009 and 2009/2010, as well as further renewals issued on 29 July 2012 and 29 September 2013. These included his name and residential address.
The applicant addressed some of these concerns. As noted above, he said that when he first set up his shop (in mid-2009), the local market committee still comprised people associated with the former government. The local AL therefore did not know that a BNP rival had set up a business. The Tribunal notes, however, that the business licences he submitted included his name and residential address, including for the years 2012 and 2013. These do not suggest any effort on his part to conceal his ownership of the business, including from local AL authorities or political rivals.
The applicant also made the more general point that during this period, even though the situation was precarious, he was determined to persevere in the hope that things in Bangladesh would improve. When asked at hearing to elaborate on why he thought things might change under the AL government, he replied that there had been some talk of the USA putting pressure on the government or intervening, but that never happened. He did not provide details or explain how this influenced his business and travel activities.
The Tribunal asked the applicant whether he had been subject to any targeted threats or attacks prior to his first visit to Australia in mid-2014 (particularly since he claimed to have operated a shop since 2009 and been Organising Secretary of the Jubodal since 2010). In response, he said that AL men used to come to his shop in [Suburb 4]. He later suggested that these visits were part of regular campaigning or fund-raising activities. He said that it was later, in 2014 (after his return from Australia) that AL leaders came and threatened him for the first time.
In his original application, the applicant wrote that ‘the local people from Bagerhat ha[ve] the connection to their contacts in Dhaka monitoring about me’ [sic]. The context for this statement was not stated. It suggests close links between AL figures in Dhaka and Bagerhat, although this is not entirely clear, as the applicant claims to have been politically engaged only after he moved to Dhaka. At hearing, the Tribunal asked the applicant whether there had been any adverse events for him in his home area before his first trip to Australia. He replied that there were no political issues in Bagerhat, as he was not living or politically active there. The Tribunal prefers this response to the suggestion in the applicant’s written claims that his political opponents kept tabs on him in both Dhaka and his home area.
The applicant also wrote on Form 866C (question 94) that he ventured out from hiding to participate in political protests and engage in other activities, he also ‘relocated’ to various parts of Dhaka, namely [Suburbs 1, 2 and 3]. As the applicant confirmed at hearing, he lived in these Dhaka suburbs for periods of over five years, including ten years at one address in [Suburb 3]. He has subsequently claimed, without details or corroborative evidence, that he was ‘hiding’ with family and friends during much of these periods, to avoid harm. The Tribunal is not satisfied that the applicant’s change of address in Dhaka was, at any time, a ‘relocation’ in response to any threats. It is also not satisfied that he spent much of this period in ‘hiding’.
Bangladesh: Events on return (September 2014 – February 2015)
The applicant visited Australia from August to September 2014, and claims that AL activists again targeted him on his return there. The key incident was when AL activists went to his shop in Dhaka and threatened him. The timing and details of this incident have varied significantly over time.
The applicant wrote in his protection visa application that in November 2014, while visiting his parents, a group of AL youth activists kidnapped him in the middle of the night, demanding 1 million taka[16] and threatened to hand him over to the paramilitary Rapid Action Battalion forces. He then referred to his statement of claims (see immediately below).
[16] $A14,300 at the time of this decision
In the statement of claims, the applicant described an incident that took place on 28 November 2014, in the following terms:
§ He went to the shop to collect some money from his employees, when some AL activists attacked him. They tried to take him by force to a secluded place, probably with the intention of killing him, but the applicant managed to escape just as they were crossing a road.
§ After this incident, the applicant started receiving anonymous telephone calls. Some strangers came to his place late at night; they also went to the shop to talk to his employees, trying to find out where the applicant was. The applicant feared for his life, convinced the AL people were trying to kill him.
At hearing, the applicant said that in about the last week of September 2014, AL activists – from the party, the student wing and/or the youth wing – came to the shop and demanded that he close it. They also threatened the landlord.
§ The Tribunal noted his earlier evidence that they had ‘destroyed’ his shop while he was in Australia (August/September 2014) and asked for clarification. The applicant explained that they broke the front windows and shelving, and vandalised the premises. He said that these AL people were known to him and others at the market. They warned him to close the shop, making clear their political motives.
§ The Tribunal also asked about the timing of this incident, as the applicant’s written statement specified that it had occurred on 28 November 2014, rather than in late September 2014. He replied briefly that the previous lawyer had made an error. The Tribunal put to him that, according to the new timeline he had presented at hearing, he remained in Bangladesh for a further four months before leaving for Australia, which did not appear consistent with his claim to fear for his safety.
In addition to the applicant’s total stay in Bangladesh of some five months, further concerns arise about the applicant’s delayed departure from Bangladesh, even after he obtained an Australian visa. As noted in the delegate’s decision record, the applicant was granted an Australian visitor visa on 3 December 2014, but did not arrive in Australia until [February] 2015, some ten weeks later. At interview, the applicant explained that he needed time in Bangladesh to arrange his finances, help his wife move to her relatives’ village, make financial provision for his aged parents, and secure a flight to Australia. The applicant repeated this at hearing, adding that he also had to raise money for his travel.
The Tribunal accepts that the applicant may have felt obligated to tend to family matters before departing for Australia. However, it does not consider his travel movements to be consistent with his indication on Form 866C that he faced a ‘nightmare situation’ in Bangladesh, and felt compelled to flee. Rather, the Tribunal considers his conduct – including his stay in Bangladesh of some five months, and his delayed departure even after granted a visa – to undermine his claim to have feared for his safety.
The Tribunal notes that there have been various strands to the applicant’s claims of past harm, in Bangladesh (before and after his first visit to Australia) and while he was visiting Australia. These included threats, harassment, attempts to locate him, threats towards his family and targeting of his property. It has been difficult to obtain from him a single narrative with a clear timeline or causality. The Tribunal is not satisfied that this reflects any complexity to the claims, or confusion on the applicant’s part. Rather, it is concerned that these claims are not based on his lived experience, but have been assembled to form the basis for securing protection in Australia.
It finds that the applicant left Bangladesh in February 2015 in an unhurried manner, and for reasons unrelated to his protection claims.
Political activities and profile in Australia
The applicant claims that his political commitment to the BNP is ongoing, and the reason why he is unable to return to Bangladesh. He claims to have sustained his commitment through in-person activities with Bangladeshis in Australia, and online. As a result, he continues to be a person of adverse interest to the AL-led government and its agents.
§The applicant indicated to the first Tribunal that he became involved in BNP activities in Australia almost immediately after arriving here. In his statutory declaration of 3 October 2018, he summarised his activities as follows:
   On 21 February 2015, [number] days after arriving in Australia, he attended the national commemoration for mother tongue day, a BNP event. He has since participated in a wide range of other BNP events.
   After some (unspecified) time, he was given the position of ‘assistant organising secretary’, which required him to organise and attend meetings, forums and protests.
   The applicant claimed that he attends monthly BNP Australia meetings, which involve discussions attended by Bangladeshi residents in Sydney, as well as local and Bangladeshi politicians, when available. The activities include promoting the BNP, and also organising protests against AL party leaders visiting Australia. Sometimes the group hosts visiting BNP leaders.
   At these events, photographs are often taken and posted on social media.
   The applicant claims that his name has appeared in the local Bengali language press, when they report on BNP activities in Australia.
§ (The applicant also described his online activities, discussed below.)
The applicant provided the Tribunal with various photographs and other documentary evidence relating to his association with the BNP in Australia, during 2017 and 2018. These include:
§ Approximately ten photographs, annotated, showing the applicant at various events in mid- to late 2017, such as BNP Australia event (Lane Cove, 20 August 2017), National Revolution Day (Lakemba, 12 November 2017), BNP Australia seminar (Canterbury, 22 April 2018), and a demonstration (possibly Darling Harbour, 27 April 2018). In the BNP meetings, the applicant appears to be in prominent positions (such as presenting, or at a head table).
§ The applicant claimed that his name appears in local (Sydney) Bengali language newspapers, and presented photocopies of several.
- One article refers to a Bangladesh Nationalist Volunteer Party Australia function in Sydney on 20 August 2017, in which participants’ names are listed, including the applicant (tenth of some 25 participants).
- One translated article described a BNP Australia event on 20 August 2017, for new member registration and membership renewals. The applicant’s name appears as the twelfth of 25 ‘other speakers’. The applicant is one of about half the speakers without any formal role; the ‘assistant organising secretary’ is given as Mr Abdul Majid.
§ An untranslated card or leaflet showing the photographs of BNP leaders and a partially legible address in [Suburb 6] appears to be a BNP Australia document, without further commentary or explanation.
The applicant provided several letters of support that refer to his political work in Australia:
§ Mr Md Mosleh Uddin Arif, Convenor, Bangladesh Nationalist Party (BNP) Australia, wrote two letters:
- A letter dated 19 August 2017 states the Mr Arif knows the applicant personally, that he (the applicant) joined the BNP Australia in 2015, and that in 2016, he was made an ‘Assistant Organising Secretary’. His contribution to the party is ‘significant and well-known’. (The letter also refers to the applicant’s profile in Bangladesh, information about the treatment of BNP activists in Bangladesh, and Mr Arif’s support for the application generally.)
- A letter dated 22 July 2023 repeats information from the previous letter. It adds that the applicant was appointed ‘Joint Convenor’ in 2023 (see consideration of this below).
§ A letter dated 12 August 2017 from Mr Arif to the applicant, in English, purports to formally advise him that on 20 August (presumably a reference to 20 August 2016) the BNP Australia executive committee appointed him to the position of Assistant Organising Secretary.
The applicant referred to his participation at the [Organisation 1 meeting] in Adelaide in August 2014, and provided some photographs of his attendance at other [Organisation 1] events, such as a dinner on 19 July 2017. He told the Tribunal that he is currently a member of [Organisation 1] in [Suburb 7]. In response to the Tribunal’s questions, he said that his prior travel to [Organisation 1] events in [Country 4] and Australia, and his current activities, involved social events with a civic purpose. He described some of the [Organisation 1] projects, such as [a hospital] in Dhaka, and activities such as supporting eye operations, and distributing food and clothes to the poor, particularly in winter.
The applicant provided negligible evidence of any ongoing political interest or engagement since the last Tribunal review was finalised, in February 2019.
At hearing, the applicant said that following the murder of his father in August 2021 (see below), he wound back his political activities in Australia, fearing that it could put his family in Bangladesh in harm’s way (or at risk of intensified harm). In response to questions, he said that he had last posted material online prior to the COVID pandemic, i.e. before early 2020.
In this context, the Tribunal asked about the letter from Mr Mosleh Uddin Arif, Convenor of Bangladesh Nationalist Party (BNP) Australia, dated 22 July 2023. Mr Arif wrote in general terms that the applicant ‘always joins all our programs such as independent, anniversary, victory day of Bangladesh also all community programs’ [sic]. He also wrote that in 2023, the applicant was appointed as Joint Convenor of BNP Australia.
§ Mr Arif’s letter is at odds with the applicant’s own evidence that he did not engage in political activities after the death of his father (August 2021); and with the absence of evidence that he did so any time from at least early 2019. The tone of Mr Arif’s letter suggests it was written to assist the applicant with this application, The Tribunal considers it to be of negligible value as independent corroboration of the applicant’s claimed political engagement here.
§ Asked for details of this position and the process of appointment as ‘Joint Convenor’, the applicant said that the BNP executive committee in Sydney operates without clear instructions from the central committee (i.e. the BNP in Dhaka), and there are 27 joint convenors who share various responsibilities. Referring to the BNP’s 45^th anniversary of its founding, he said that Mr Arif went to London to meet the BNP chairman in exile and discuss arrangements for a celebration in Australia. These are not yet fixed, but the applicant said he had been given responsibility for food (catering) when it does take place.
§ While the applicant was familiar with the BNP’s 45^th anniversary and appears to have spoken recently with Mr Arif, the Tribunal formed the impression that he was improvising when trying to explain why he had been made an office-bearer (after several years of minimal contact), what his role as joint convenor (or one of many joint convenors) was, and what profile he has as a result. It considers that the applicant’s designation by Mr Arif is not a genuine reflection of any responsibilities or profile that he (the applicant) has.
The Tribunal asked the applicant about the photographs of him with a group of other men, which he had dated 21 August 2023. They purportedly showed BNP colleagues meeting in Sydney, at a library. In response to questions, he said that he decided to participate in this group again, and post evidence of it online, simply to gauge the current situation in Bangladesh (i.e. whether it would prompt a negative reaction, as it had in the past). The Tribunal flagged its concern that the applicant’s attendance at the meeting and his online posting appeared to be contrived, particularly in light of the fact that this followed a lengthy period of inactivity and occurred within two weeks of the Tribunal’s hearing invitation letter. In reply, the applicant insisted that he was acting on the basis of a real political motivation.
At hearing, the Tribunal alerted the applicant to the operation of s.5J(6), which requires it to disregard his conduct in Australia when assessing his claims against the refugee criteria, unless it is satisfied that he engaged in it other than for the purpose of strengthening his claims to be a refugee. In response, he briefly stated that he is committed to strengthening the party.
Online activities
The applicant submitted to the first Tribunal a number of pages purporting to show his promotion of the BNP through social media, namely [Social Media 1].
§ These are images and partial screenshots that have been cut-and-pasted into text documents, with weblinks to the applicant’s [Social Media 1] home page, and/or the specific post and/or, in some instances, the home pages of other individuals or groups.
§ They span the period from June to September 2017, although most of the posts do not give a full date. They appear to show that the applicant has shared political posts online, sometimes to a [Social Media 1] group [group title deleted].
§ Most of the photographs appear to show political and protest material from Bangladesh. One set of photographs, with the date 17 September 2017, appears to show the applicant at a protest, behind a BNP Australia banner proclaiming ‘Save Rohingya’.
The applicant said at the recent hearing that he continues to operate a [Social Media 1] account, but does not use other social media. He provided a screenshot of his [Social Media 1] page showing a post (two lines of untranslated Bengali text with two photographs of him, dated 21 August 2023.)[17] He linked this with claimed threats he had recently received.
[17] The [Social Media 1] screenshot gives the date as August [date]; the Tribunal infer from this that it is the current year, i.e. [date] August 2023.
The Tribunal finds on the available evidence that the applicant has a [Social Media 1] account with restricted public access; and that he has posted some limited oppositional material on it, including photographs of him participating in BNP-related activities, mainly during 2017 and 2018. Taking into account the timing of this material and its adverse view of the applicant’s credibility, the Tribunal finds that the main reason for this was to support his protection visa application; although it may also have served (alongside his [Organisation 1] links) to support his social networking.
The applicant provided the current Tribunal with a screenshot of a single [Social Media 1] page, purporting to show him at a meeting [in] August 2023, in a public location in Sydney (he described it as a library in [Suburb 8]). It shows him at a long table with at least six other men, with flasks and cups visible. There is no signage or other materials to indicate that the meeting is political in nature. The screenshot has two lines of untranslated Bengali text from the applicant. The distribution of this posting is not indicated, i.e. whether the applicant made it publicly available, or to a select group (such as ‘friends’) or a specific online group. Nonetheless, it attracted nine comments, and 57 ‘emoji’ responses, suggesting that it was accessible to a modest number of people, probably within one forum. As noted elsewhere, the applicant said that he went to this meeting in August 2023, after a long absence, and posted the material, to gauge what the reaction might be. In the absence of any further context, the Tribunal places minimal weight on this posting as evidence that the applicant has an online presence, including as a Bangladeshi who engages in oppositional political activities online.
Continued adverse experiences since 2015

As noted above, the applicant arrived in Australia in February 2015, applied for protection in March 2015 and the delegate refused the application in September 2015. During the primary application, he claimed that following his departure from Bangladesh, his business was ransacked.[18] He has since presented claims relating to the AL’s continued pursuit of him in Bangladesh, as well as threats made to him in Australia.
Developments in Bangladesh
AL activists’ continued harassment
[18] Submission of 20 March 2015, page 2.
The applicant’s original statement of claims, submitted to the Department on 25 March 2015, records that AL activists were coming to his shop ‘randomly’, asking after him. When his employees told them that he was abroad, they ransacked the shop. At hearing, the Tribunal found it difficult to ascertain whether the applicant was referring to events during his first visit to Australia, or after his last departure. In any event, the applicant’s statement at hearing that he closed the business in [Suburb 4], sold the contents to a friend ‘at cost’, and arranged for his employees to work with his friend, all cast doubt on his claim that AL activists continued to target him through the business, after he came to Australia,
He also wrote that his wife had emptied their home and moved in with her brother in another part of Dhaka. The Tribunal notes that, in explaining his delayed departure from Bangladesh (after being granted an Australian visa), the applicant said that he helped his wife move in with a close relative. In the Tribunal’s view, it is unsurprising that the applicant’s wife has moved in with relatives, rather than stay in the family home alone. It is not satisfied that this is related to the applicant’s protection claims.
False criminal charges: January 2015
Primary application: The applicant did not present any claims or evidence relating to false criminal charges during the primary application, including at the Department interview on 2 September 2015.
Review application: The first mention of this claim is in the legal submission of 4 October 2018, and the applicant’s statutory declaration of 6 October 2018.
The applicant claimed in his statutory declaration of 6 October 2018 that, after coming to Australia, he learned that the police had filed a politically motivated false case against him in January 2015.
§ He claims to have learned about it only in April 2015, when the police went to his brother [Brother A’s][19] shop. They went there because [Brother A] is a well-known businessman in Dhaka. The applicant believes that the authorities delayed looking for him because of the large number of defendants in the criminal case.
§ [Brother A] alerted the applicant to the police interest in him, noting that two other people had been arrested. He was furious that the applicant’s BNP activities had got him into trouble,
§ The applicant asked his brother to get copies of the police papers, but [Brother A] initially refused. The applicant said that, lacking documentary evidence of the charges, he decided not to mention them at his Department interview.
§ Later, in about mid-2017, [Brother A] relented and agreed to get a copy of the criminal charge sheet. He had to pay money to obtain this. The applicant wrote that, as of October 2018, he did not have any information about the court proceedings, but fears that he will be subject to arrest and imprisonment if he returns to Bangladesh. He commented that he knows the names of two people on the list; one has been arrested and is in prison, and the other is in hiding.
[19] Also referred to as ‘[Brother A variant spelling]’.
The applicant submitted copies of documents in Bengali, with poor quality English translations. These appear to cover two documents, a first information report (FIR[20]) and a charge sheet, both dated 18 January 2015.
§ The FIR, filed at [Suburb 2] Police Station, describes an incident on the evening of 17 January 2015 in which 23 accused persons allegedly blocked traffic and threw a petrol bomb at a bus, with the aim of killing and injuring people. The applicant is listed as the fifteenth of the accused persons.
§ The charge sheet contains similar information.
[20] The translation refers to this as a ‘First Description of Information’.
At the hearing before the first Tribunal, the applicant confirmed his claim that, after learning about the false claim, he asked his brother to obtain the documents. He did not raise such a claim at the Department interview because he did not yet have the documents. After his brother obtained the documents, sometime in 2017, he forwarded them to the agent. The agent confirmed this at hearing but later, after checking their records, advised that they did not receive any documents in 2017.
The applicant told the current Tribunal at hearing that he did not have any further information about the documents or any court proceedings, as he was not in the country.
In response to questions, he added that he had also not made any enquiries, as he thought this could endanger other people.
§ He initially said that at the time of the Department interview, he did not know about the false case. He only found out later, when his wife sent him the documents.
When asked about his evidence to the first Tribunal – namely, that at the time of the Department interview, he knew about the false case but decided not to mention it because he did not have documents to support the claim – the applicant qualified his earlier statement. He said that his wife had alerted him to there being a false case, after a friend with AL links had alerted her. However, it was only later, when seeing the documents, that he was able to confirm that his name appeared as one of the accused persons.
§ The applicant said that his wife obtained the police documents through a friend of hers who supports the AL; he intimated that this person also found out which of the people listed in the charge sheet were in prison.
§ In response to further questions, the applicant said that he had read the documents ‘a bit’. He knew that his name appeared but was not able to give the names of the persons whom he believed to have been arrested and/or in hiding, and he did not know the details of the actual charges. The Tribunal signalled its surprise that the applicant – an educated businessman, and fluent in Bengali – had not enquired into the offences he was alleged to have committed. He responded briefly that he saw his name on the list, and was scared.

100. It is well-established that the AL-led government and its agencies use false charges as a means of intimidating the political opposition. The most recent DFAT country report notes the following:
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.

101. As the Tribunal noted at hearing, there is a high prevalence of document fraud in Bangladesh, including those manufactured by specialists as well as fraudulently obtained genuine documents.[21] For instance, a 2019 Swedish report on document fraud in Bangladesh included the following observations, in its English summary[22]:
[21] See, for example, the comments in the most recent DFAT report, at 5.33 in relation to drivers’ licences.
[22] Migrationsverket (Swedish Migration Agency), Lifosrapport Bangladesh: Falska Handlingar [False acts; fraud], 25 February 2019:
Bangladesh is ranked as one of the most corrupt countries in the world, and corruption is extensive and occurs at all levels of society. The widespread corruption enables extensive production and trade of fraudulent documents.
The lack of central civil registries also makes it easier to obtain genuine documents with false information, as the information is often not checked against other (local) registries. Translations of documents from Bangladesh are not always reliable as it is possible to bribe an authorised translator to change or omit information in the translated document.
The lack of a functioning civil registration and a central database to check documents poses a challenge to assess the authenticity of certificates and documents.

102. Section 423A requires the Tribunal requires the Tribunal to draw an unfavourable inference as to the credibility of a claim raised or evidence presented that was not provided before the primary decision was made, if the Tribunal is not satisfied that the applicant has a reasonable explanation for not raising the claim or presenting the evidence earlier. In the present case, the applicant has given inconsistent accounts of whether or not he knew about the false charges during the primary stage (up to September 2015), variously stating that he did not know about them; that he knew about the possibility of such charges but had not been able to confirm them; and that he knew about them, but did not have documentary evidence. His inconsistent evidence as to whether he relied on his brother [Brother A] or his wife, for the information and document copies, reinforces the Tribunal’s concerns.
103. Consideration: The Tribunal takes into account country information about the AL government’s use of false charges to harass political opponents.
§ However, for the reasons stated above, the Tribunal is not satisfied on the available evidence that the applicant is an active BNP supporter or member, of any kind.
§ Pursuant to s.423A, the applicant has not provided a consistent and credible explanation for his failure to raise a claim relating to false charges prior to the primary decision (September 2015). As such, the Tribunal is satisfied that he has not provided a reasonable explanation for raising the claim earlier; it therefore draws adverse inferences from this.
§ The applicant’s various claims to have obtained these documents via his brother, upon payment of a fee, or through his wife’s friend with AL contacts, add to the Tribunal’s concerns about the provenance and genuineness of these documents, and its doubts about their contents.
§ Finally, the applicant’s knowledge of the documents appears to be limited to the claim that his name is on them, and that several of the co-accused have been imprisoned. However, his evidence that he did not know these persons’ names, and had not looked at the actual offences he was alleged to have committed, reinforces the Tribunal’s view that the purported FIR and charge sheet are not based on any actual police or court proceedings, but have been manufactured as purported transcripts, to assist the applicant in this application.
104. Taking all of these concerns together, the Tribunal finds that the purported documents are not genuine. Based on this finding, and having regard also to its findings about the applicant’s political interests and his conduct, the Tribunals finds that there are no police or court proceedings against him.
Father’s death, 2021
105. The applicant’s representative sent to the Tribunal, without comment, two photographs of an elderly man with a bandaged head wound, and a prescription dated 12 August 2021 for the applicant’s father, on a Bengali language script pad but with the medications recorded in English.
106. At hearing, the applicant presented a new claim, namely that AL activists murdered his father in August 2021, for political reasons linked with his (the applicant’s) political profile. He described the events surrounding the murder in the following terms:
§ His younger brother [Brother C] (who is in [Country 1] applying for political asylum) wrote an anti-AL government message on [Social Media 1], prompting some local AL people to come to the family home.
§ The AL people put to [Brother B] (the second brother, who lives in the family home) that his two brothers, in [Country 1] and Australia, are putting anti-government material online. An argument ensued, and some of them started to beat [Brother B] with a stick. When the father tried to intervened, one of the AL men struck him. The father fell to ground. Startled by this, the AL men fled the scene.
§ The applicant’s father went to hospital and died on 19 September 2021.
§ During the incident, the AL men warned of dire consequences if either the applicant or his brother returned to Bangladesh.
107. The photographs show an elderly man with a bandaged head wound. He appears to have some scarring or other blemish below his eye, but there is no indication as to the cause of the head wound or whether there are other injuries. The Bengali language script pad includes in Roman script the father’s name, the date of the consultation and the words ‘head injury’. A list of prescribed medications appears to have been attached to this via a sticky note. It lists six medications, in English. These appear to be antibiotics and analgesics, mainly associated with bacterial infections and gastric complaints.
108. The Tribunal expressed concern that the applicant had not raised this claim prior to the hearing; he replied that he had submitted the supporting evidence, and wanted to discuss the claim in person.
109. At hearing, the applicant said that he did not have any further news about his father’s death. He said that he was treated in a local clinic, not a hospital, and there was no discharge certificate or other documentation relating to his treatment. The Tribunal asked whether there was any death certificate, record or even private correspondence to show that his father had died unexpectedly, and/or as the result of an attack (even if it did not record the names or political allegiance of the perpetrator(s)). The applicant replied that no one dares record such events, as they would be perceived as anti-government. In relation to any private messages, including online, he said that the government actively monitors online activity.
110. During the exchange, the Tribunal formed the impression that the applicant was pressing it to accept his oral evidence, the photographs and the prescription as conclusive evidence that his father had been subject to a political murder (based on his and his brother’s BNP allegiance), and that he was not genuinely engaged in exploring whether there might be evidence as to the circumstances of his death (i.e. that it was murder, or that it was linked to the applicant’s protection claims).
111. The Tribunal accepts as plausible that the applicant’s father died in September 2021. On the limited available evidence, and given its adverse view of the applicant’s credibility, it does not accept that he died as a result of injuries inflicted by AL activists who came looking for the applicant (or his brother [Brother C]).
Developments in Australia
Rental property dispute
112. The applicant claimed (in his October 2018 statutory declaration) that in 2017, he paid a $5,000 deposit to sublet part of a retail shop in [Suburb 5], from a Bangladeshi man named [Mr H]. Two weeks after the start of the lease, the applicant asked for a refund, as he had not made any money.[23] The applicant engaged a lawyer and sent a letter to [Mr H].
[23] The applicant has variously suggested that [Mr H] reneged on his promise to sublet a particular corner of the shop to the applicant; and/or that the applicant had simply found the contract arrangements unprofitable,
§ In a letter dated 2 November 2017, the applicant’s lawyers note that [Mr H] failed to provide a lessor’s disclosure statement to the applicant, and request the refund of the $5,000 deposit and a further amount of $7,000 for the shop fitout costs.
113. The applicant claims that [Mr H] said ‘stop asking for [the deposit] back otherwise there will be trouble.’ As [Mr H] is an AL supporter and has connections in Bangladesh, the applicant is worried that he will target him if he goes back to Bangladesh.
114. At hearing in August 2023, the applicant confirmed that he had rented space in [Mr H]’s [shop] in [Suburb 5] and found it unprofitable. The dispute was still unresolved. When the arrangement soured, [Mr H] told the applicant that he knows of his status in Australia and he will be in trouble. Responding to the Tribunal’s question as to why he entered a business deal with an AL supporter, the applicant said that he only found out later.
115. The Tribunal signalled at hearing its disquiet that the applicant had taken what appeared to be a commercial dispute, and presented it as part of the AL’s (claimed) political persecution of him in Bangladesh. It does not accept at face value that [Mr H] is aware of the applicant’s protection visa application or its contents; nor does it accept that a Bangladeshi political dimension came to the fore during their dispute.
116. In relation to this and other claims of threats made in Australia, the Tribunal notes that the applicant has not recorded or reported them. It is concerned that he is prone to exaggerate and misconstrue them. The Tribunal does not accept on the available material that [Mr H] made any threats to the applicant that were - or that the applicant perceived to be - credible threats to inflict serious or significant harm on the applicant, for political or any other reasons, if he returns to Bangladesh.
Online threats
117. The applicant claimed, in the submission of 4 October 2018 and his statement of 6 October 2018, that sometime in 2017, a high school friend named [Mr I] who now lives in Dhaka threatened him online. The applicant had posted comments about the AL mistreatment of BNP and other opposition supporters. In response, [Mr I] asked why he still supports the BNP (when ‘everyone’ has joined the AL), warning the applicant that he intends to ‘give [him] a lesson’ if he returns to Bangladesh. The applicant then blocked [Mr I], meaning that neither can now have contact via [Social Media 1].
118. At hearing, the applicant appeared to state that [Mr I] and another person had made threats through [Social Media 1]. He did not have any examples of such threats. In response to questions, he said that he had blocked these individuals now and, as a consequence, is unable to retrieve any of the messages they had sent him.
119. He added that, after a long absence from BNP activities in Australia, he again went to a BNP meeting in [Suburb 6] on [date] August 2023; he said that there had been a gathering in a library in [Suburb 8]. He posted photographs on his [Social Media 1] account, which again generated comments threatening to harm him if he returns to Bangladesh.
120. The applicant provided a screenshot of his [Social Media 1] page showing a post (two lines of untranslated Bengali text with two photographs of him, dated [date] August 2023.[24]. A [Mr F] commented (in text that the applicant submitted with translation): ‘Despite moving over there, you are not even backing out from Awami opposing. I warn you to quit the BNP campaign, if not, then your homecoming will be off for five years; if you come (return) then the jail will be waiting for you’. A further comment immediately below, from an [Mr J], reads in English: ‘you will regret for your actions’. [sic]
[24] The [Social Media 1] screenshot gives the date as August [date]; the Tribunal infer from this that it is the current year, i.e. [date] August 2023.
121. The Tribunal has several concerns about these postings, the alleged threats and their significance. First, the applicant can determine who sees his [Social Media 1] posts and, in the event of any disputes or threatening language, block them (as he claims to have done with [Mr I]). Second, the applicant has provided no evidence of his claimed exchange with [Mr I]. Third, in relation to the alleged recent threats from ‘[Mr F]’ and ‘[Mr J]’, there is no context, such as information about these individuals’ backgrounds; their links with the applicant (presumably they are [Social Media 1 contacts] or members of a common group); or their capacity to make and carry out threats towards him. Finally, the applicant provided no context as to what – aside from the Tribunal’s hearing invitation dated 10 August 2023 – prompted him to appear in the group photographs and post these online.

122. Taking all these concerns together, and given its adverse view of the applicant’s credibility, the Tribunal finds that he has contrived this evidence; that there are no credible threats of political violence against him; and that, to the extent that some [Social Media 1] friends may have observed this exchange, they do not have any adverse intentions to towards him.
Summary of findings
123. The Tribunal has considered the applicant’s claims and evidence, cumulatively, and with regards to relevant country information. It accepts that he is a businessman and Muslim who favours the BNP largely because it has provided some social networking opportunities for him as student, and later as a businessman; but also because he leans towards its views and because he disapproves of the current government’s grip on power and its treatment of the opposition. It accepts that he joined the JCD while at school or college.
124. However, the Tribunal does not accept that his political opinion or interests extend beyond that, or that he took on social causes that antagonised the AL government and its agents. Specifically, it does not accept that he held any position with the JCD, had any responsibilities or profile, or (specifically) that he was a JCD leader known on campus, within the BNP party and in other parts of Bangladesh. The Tribunal accepts that, as [a Product 1] manager and later businessowner, the applicant may have sought connections through local politicians and community groups (such as [Organisation 1]), including for the purpose of business and travel. However, it does not accept that he became involved in the Jubodal or BNP party proper; that he held any positions; or that he actively engaged in any political activities, including during elections. It finds that his political interest in Bangladesh was marginal, and that he was not perceived by the AL or anyone as politically active.
125. The Tribunal accepts that the applicant has contacted BNP supporters in Australia, and participated in some social and political activities, particularly in his first few years in Australia. It finds that a key motivation for this activity – including appearing at events, having photographs taken and publishing these materials – was to strengthen his claim for refugee status. However, it is satisfied that the applicant also engaged in this conduct for networking and social contacts. It therefore does not fall within the scope of s.5J(6).
126. The Tribunal accepts that the applicant may have had some political disagreements at college; that he may have been disappointed at the BNP’s election loss in 2008 and the subsequent mistreatment of its supporters; and that, as a businessman at the local market, he may have been subject to some extortion or other pressure. However, the overall picture that emerges is of a successful businessman who did not place priority on political issues, and was not subject to any harm that, individually or cumulatively, involved persecution or significant harm (including via harm to his family and/or property). The Tribunal does not accept that the AL government or its agents ever targeted the applicant; that he lived in fear; that he had to take precautionary measures (such as concealing his ownership of the business or hiding) to avoid harm; or that his travel abroad (including both trips to Australia) were related to his protection claims.
127. The Tribunal does not accept that the applicant was assaulted on his return to Bangladesh from his first trip to Australia, in late 2014; or that he received any subsequent threats.
128. The Tribunal accepts that the applicant’s father died in August 2021, but does not accept that he was murdered for political reasons linked with the applicant’s protection claims. The Tribunal finds that the applicant’s social media postings about his BNP-related activities in Australia – mainly during 2017 and 2018, as well as a single occasion in 2023 – may have attracted some comment, both positive and negative, from online friends. However, it does not accept that the brief online criticisms (including the ones in August 2023) are genuine, credible threats to inflict persecutory or significant harm on him if he returns to Bangladesh. It also does not accept that the applicant genuinely fears such harm from such online exchanges.
129. The Tribunal does not accept that the applicant has been subject to any police or court action in Bangladesh, for political or other reasons. Although country information indicates that the ruling AL routinely brings false criminal charges against its political opponents, largely with a view to intimidating them, the Tribunal finds with confidence that the applicant is not such a person, that he has not been subject to false changes, and that he has no related fears.
130. The Tribunal accepts that the applicant has been involved in a property dispute with a person in Australia of Bangladeshi origin, but it rejects the applicant’s claim that this person is affiliated with the AL; is aware of the applicant’s protection visa application; and has made threats to target the applicant if he returns to Bangladesh.
131. As noted above, the applicant tended during this review to refer to instances of past harm, sometimes in passing, and sometimes without clearly stating the timing, the perpetrator(s) or the occasion. These included AL activists’ continued pursuit of him, the ransacking of his shop, his wife’s move back to her relatives, the seemingly slow processing of his replacement passport in Australia, and various online ‘threats’. The Tribunal considers that the applicant may have drawn on some actual events (for instance, relating to wife’s move, his replacement passport and his tenancy dispute with a local Bangladeshi in Sydney), but that he has exaggerated and misconstrued them to form part of his protection claims. Given its adverse view of the applicant’s credibility and its rejection of his key protection claims, the Tribunal also rejects associated and residual claims of political targeting that he has made.
ASSESSMENT: REFUGEE CRITERION
132. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Bangladesh, and relevant country information, he has a well-founded fear of persecution for one or more of the reasons set out in s.5J(1)(a), now or in the reasonably foreseeable future.
133. When asked about his future conduct if he returns to Bangladesh, the applicant observed briefly that he would be unable to live safely in Dhaka or Bagherhat and considers that he would be at risk throughout the country. He did not believe that he had ‘any chance’ of engaging in politics, if he returns there. He said in relation to this [Organisation 1] activities that he is a member of the organisation in Bangladesh, and might consider being involved with them.
134. The Tribunal discussed with the applicant a range of country information, drawing in particular on DFAT’s most recent country report, dated 30 November 2022. It notes DFAT’s and others’ assessments that political tensions and violence typically rise during election campaign, with one UN officer recently noting: ‘The current scenario looks like a broad-based or even discriminate approach to round up thousands of opposition party workers often in relation to the same incident’.[25] Prime Minister Sheikh Hasina’s victory in the elections of 7 January 2024, which the BNP boycotted and critics described as ‘bizarre’,[26] foreshadows a continuation of the AL’s dominance in Bangladesh politics, and its further pursuit of the BNP and other oppositional parties.
[25] 'Bangladesh: The election that has turned into a one-woman show', Anbarasan Ethirajan, BBC News, 02 January 2024, quoting Rory Mungoven, Asia-Pacific chief at the UN High Commissioner for Human Rights in Geneva.
[26] ‘Sheikh Hasina wins fifth term in Bangladesh amid turnout controversy’, Faisal Mahmud, Aljazeera only, 08 January 2024.
135. Having found that the applicant favours the BNP, the Tribunal accepts that he may disapprove of the government, including its conduct of the elections and the election outcome. However, it is not satisfied that his membership of the JCD at school or college, or his networking with people with BNP sympathies, has in the past resulted in persecutory harm. It is also not satisfied, particularly given the passage of time since the applicant had such contacts, there is a real chance of AL supporters, government agents or others targeting him and inflicting serious harm due to any such past activities.
136. The Tribunal does not accept that the applicant had any other past profile or interests while in Bangladesh, and it does not accept that he was subject to any adverse treatment, including but not limited to death threats or other threats, an attempted kidnapping, sustained pursuit, threats to family members, or damage to his property. It also does not accept that he avoided such harm by going into hiding, or taking measures to reduce his political profile (for instance, by refraining from political activities). As such, the Tribunal finds that there is no real chance of him being persecuted for reason of such past activities.
137. The Tribunal is not satisfied that the applicant’s political interests extend beyond a general preference for the BNP, and its potential to help him with business and social contacts.
§ As discussed at hearing, in its most recent country information, DFAT summarised the risks facing BNP figures and activists in the following terms[27]: ‘DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.’
[27] DFAT Country Information Report - Bangladesh, November 2022, para 3.84
§ The applicant submitted a number press articles, covering the period from February 2018 to August 2023, describing incidents of political violence in various parts of the country, including examples of injuries and deaths as a result of political clashes, often involving the police or security forces, and the arrest of political leaders.
138. Given the applicant’s modest political interests, which mainly focused on social and business networking rather than any active engagement in BNP party politics, the Tribunal finds that he will not be motivated to participate in political activities such as party meetings, protests or similar, if he returns to Bangladesh. It finds that there is no real chance of the Bangladesh authorities, AL party figures or agents, or AL supporters targeting him politically, with a view to seriously harming him. Similarly, given its assessment of his minimal political commitments, the Tribunal does not consider that the application will need to alter his political beliefs, or conceal them, in order to avoid persecution: s.5J(3)(c)(iii). Finally, the Tribunal accepts that the applicant may need time to re-establish business, social and political contacts if he returns to Bangladesh. This may be due in part to his absence from Bangladesh since early 2015, but also because potential BNP-linked patrons may have less access to influence and resources as the party’s fortunes have slipped.[28] The Tribunal is not satisfied that any other such factors, individually or cumulatively, give rise to a real chance of the applicant being subject to persecutory harm, on political (or other) grounds.
[28] DFAT Country Information Report - Bangladesh, November 2022, para 3.84
139. The Tribunal does not accept that there have been any further incidents, following the applicant’s last departure from Bangladesh or while in Australia (for instance, the property dispute), that give rise to a real chance of him being targeted on political grounds if he returns to Bangladesh.
140. The applicant has claimed that his activities in Australia, public references to his activities (particularly on [Social Media 1]) and threatening remarks made online, all add to the real chance that the Bangladesh authorities and AL agents will target him if he returns to Bangladesh. The Tribunal accepts that the applicant has participated in some BNP-associated groups in Sydney, that some photographs showing him have appeared online, and that he has shared some BNP-related material which has drawn criticism from some individuals.
141. In assessing the scope of these activities and considering whether they may attract the adverse attention of the Bangladesh authorities, the Tribunal notes that the applicant has given evidence of socialising in BNP groups and taking part in political exercises, mainly relating only to the period from 2017 to 2018, and on one occasion in August 2023.
142. The Tribunal notes that some photographs of these appear in [Social Media 1], along with some political commentary. The applicant noted that on a few occasions – twice in 2017 (from [Mr I] and once from another person), and once in 2023 (from a [Mr F]) – he received online threats. The Tribunal is not satisfied on the available evidence – i.e. there is no documentation about [Mr I]’s threat, or context to explain why [Mr F’s] comment should be taken as a credible threat to report the applicant or have him imprisoned – that these or similar comments give rise to a real chance of the government or individuals persecuting the applicant if he returns to Bangladesh.
143. The applicant made broader claims about the Bangladesh authorities’ concerns about the activities of opponents abroad and its monitoring of social media. Although some BNP figures have described the applicant as a BNP office-bearer in Australia and he appears in some group photographs in a prominent position, the Tribunal is not satisfied on the available material that he in fact has any profile or political influence within the Bangladeshi expatriate community in Australia, or, importantly, that the Bangladeshi authorities or others perceive of him as a BNP activist.
144. Country information discussed at hearing indicates that the Bangladeshi authorities are known to have some interest in the activities of Bangladesh political opponents abroad and to monitor social media. On the latter, DFAT summarised the government’s monitoring of social media in the following terms:
Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.

145. Not surprisingly, information about the extent of the Bangladeshi authorities’ monitoring of BNP (and other oppositional) activities abroad, and social media activity, is restricted, and largely based on anecdotal evidence rather than reliable data. It is therefore not possible to draw firm conclusions as to the authorities’ resources, methods or priorities in such areas, or the prevalence of enforcement action against perceived opponents. Despite such caveats, the Tribunal finds with confidence that there is no real chance of the Bangladesh authorities or AL political figures perceiving the applicant as a political opponent of concern, including as a result of his links with a BNP group in Australia and/or any online material posted in [Social Media 1] groups. As such, it finds that there is no real chance of them targeting the applicant and inflicting serious harm on him – including arrest, detention and/or psychological harm – if he returns to Bangladesh.
Overall assessment
146. The Tribunal has considered all the applicant’s claims and evidence, including their cumulative effect. It is not satisfied that he faces a real chance of serious harm for reason of his political opinion (actual or imputed), or for any reason, now or in the reasonably foreseeable future, if he returns to Bangladesh.
147. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1)(a), now or in the reasonably foreseeable future, if he returns to Bangladesh. He therefore does not meet the refugee criterion in s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
148. The Tribunal, having concluded that the applicant does not satisfy s.36(2)(a) now proceeds whether he meets the complementary protection criterion in s.36(2)(aa). It has regards to the findings of fact above, his future conduct and relevant country information. It notes also that s.36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
149. The Tribunal refers to the findings of fact above, the applicant’s brief comments on his future conduct, and the Tribunal’s views on any associated risk. The Tribunal is not satisfied that there are substantial grounds for believing that the applicant – who has only a limited affiliation with the BNP, and is not politically active or influential - will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
150. Implicit in the applicant’s claims is a criticism of Bangladesh’s political culture, governance and social conditions. The Tribunal is not satisfied that his exposure to such conditions if he returns to Bangladesh gives rise to a real risk that he would significant harm as exhaustively defined by s.36(2A). In any event, the Tribunal considers that such risks (which it does not accept would be a real risk of significant harm) are faced by the population of Bangladesh generally, and not faced by the applicant personally. It is therefore taken not to be a real risk that the applicant will suffer significant harm: s.36(2B).
151. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).
CONCLUSION
152. The Tribunal has considered the applicant’s claims and evidence, 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).
153. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

154. 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
155. The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The relevant DFAT country report in this case – DFAT Country Information Report Bangladesh – was published on 30 November 2022.
Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…

5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1318

10 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction