2011441 (Refugee)

[2022] AATA 5084

2011441 (Refugee) [2022] AATA 5084 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Anthony Stolar

CASE NUMBER:  2011441

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Lambie

DATE:18 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Subclass 866 Protection (Class XA) visas.

Statement made on 18 November 2022 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – pollical opinion – forcible recruitment – refusal to join Awami League – adverse attention of a political auxiliary organisation – extortion and violent physical assaults – abduction and rape – returnees from a Western country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
W575/01A v MIMA [2002] FCA 379

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (now Department of Home Affairs (the Department)) to refuse to grant the applicants Protection visas under s65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Bangladesh, applied for Subclass 866 Protection (Class XA) visas on 9 July 2013 and the delegate refused to grant the visas on 31 October 2014.

3. On 30 June 2016, the First Tribunal affirmed the delegate’s decision to refuse to grant to the applicants Subclass 866 Protection (Class XA) visas.  The applicants appealed that decision to the Federal Circuit Court of Australia.  [In] April 2019, the Federal Circuit Court of Australia dismissed that appeal application. The applicants then appealed to the Federal Court of Australia.  [In] June 2020, the Federal Court of Australia ordered that the First Tribunal’s decision be quashed and the case be remitted to the Second Tribunal (differently constituted) for reconsideration.

4. On 7 February 2017, the Second Tribunal set aside the decision to refuse Subclass 866 vis application and substituted it with a decision that the visa application was invalid, hence the matter could not be considered. The applicants appealed that decision to the Federal Circuit Court of Australia, which ordered that the Second Tribunal’s decision be quashed and the case remitted to the current Tribunal (differently constituted) for reconsideration [in] April 2018.

5. The applicants appeared before the Tribunal on 16 June and 25 August 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of a female interpreter (as requested by the applicants) in the Bengali and English languages.

6. The applicants were represented in relation to the review and the representative attended the hearing.

   Relevant law

7. The criteria for a protection visa are set out in s36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s36(2)(a), (aa), (b), or (c). That is, the applicant 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.

   Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition.  First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)).  Examples of ‘serious harm’ are set out in s 91R(2) of the Act.  The High Court has explained that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. Even 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 a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s36(2A): s5(1).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s36(2B) of the Act.

    Mandatory considerations

21. 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.

    Member of the same family unit

22. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in reg 1.12 of the Regulations to include the spouse and dependent children of the family head.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicants meet the refugee criterion and if not, whether they are entitled to complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

24. The Tribunal has obtained the following background information from the applicant’s protection visa application forms, evidence presented to the delegate and the delegate’s decision:

25. [Mr A] and [Ms B] are husband and wife. The remaining four applicants are their children, [Child C], [Child D], [Child E], and [Child F].

26. [In] December 2012, [Mr A], [Ms B] and [Child C] first arrived in Australia by boat without a valid visa.  They have remained onshore since.

27. On 9 July 2013, the applicants applied for a protection visa.  This application was subsequently refused by a delegate of the Department in a decision made on 31 October 2014.  [Child D], [Child E] and [Child F] were born in Australia in [year] and [year] and they were added as dependants to the application before the delegate’s decision.   

28. On 12 March 2015, the applicants applied for merits review of the delegate’s decision to refuse their protection visa application.

29. As outlined above, the First Tribunal affirmed the delegate’s decision on 30 June 2016.  The applicants appealed that decision to the Federal Circuit Court of Australia, which dismissed the application [in] April 2019.  The applicants then appealed to the Federal Court of Australia, which ordered that the First Tribunal’s decision be quashed and the case remitted to the Second Tribunal (differently constituted) for reconsideration [in] June 2020.

30. The Second Tribunal (differently constituted) affirmed the delegate’s decision on 7 February 2017. The applicants appealed that decision to the Federal Circuit Court of Australia, which ordered that the Second Tribunal’s decision be quashed and the case remitted to the Tribunal (as presently and differently constituted) for reconsideration [in] April 2018.

    Claims:

31. The applicants’ claims are summarised in their protection visa application, written claims and the delegate’s decision.  These claims are as follows.

32. [Mr A] is a Bengali speaking Muslim.

33. [Mr A] and his family are not politically active.  None of them voted in the 2008 election.

34. In 2012, a group of men arrived at [Mr A]’s home in the middle of the night and threatened to knock down the front door.  He opened the door to find a group of about 15 to 20 people wearing masks and black clothes.  One man put a pistol to [Mr A]’s head and told him to join their political party.

35. [Mr A] assumed they were a corrupt gang with connections to the ruling Awami League party seeking to extort and threaten poor villagers.

36. The group of men told him that he had a week to decide whether he would join their political party.  The group recorded his mobile number and threatened him that if he went to the police, they would kill him.

37. A week later, the group of men returned to [Mr A]’s home in the middle of the night to ask him about his decision to join their political party.  After he had said that he needed more time to make his decision, he was grabbed by the throat, partially strangled and threatened that if he did not join them, they would kidnap and kill his baby’s son ([Child C]).

38. One month after the initial visit, a group of 20 men returned to his home.  [Mr A] was physically held, kicked, and attacked with a ‘Da’ curved blade.  They cut him on his head and leg.  Consequently, he required medical treatment.

39. One week after this assault, he received a phone call from one of these men who demanded payment of 2 Lakhs.

40. He no longer felt safe for himself and his family in Bangladesh, so he made plans to flee.

41. On 31 October 2012, the men returned to his home late in the evening.  He negotiated with them the deadline to pay money and agreed to pay them on 10 November 2013 because he knew they would have left Bangladesh by then.

42. In the months between the first visit and the time that they left Bangladesh, the men ‘returned to the applicant’s home, or called him’ on the phone to threaten and harass him a number of times.

43. After they had arrived in Australia, he learned from his parents that the men had returned to his home looking for him.  He claims they returned to his home again 10 days later and told his parents to let him know they had returned.

44. He fears that if he returns to Bangladesh, he will be detained, tortured, extorted, abused and killed by this group of men, because of their connections with political parties in Bangladesh.   They have the ability to extort, threaten and attack villagers for financial and political gain.

45. He fears the Bangladesh authorities, because they are controlled by political parties in Bangladesh.  He fears the authorities will not protect him.

46. He fears harm because of his membership of a particular social group, namely ‘individuals who have held information (the witnessing of corruption) adverse to the interests of the Awami League in Bangladesh’.

47. [Mr A] has knowledge of the corruption and extortion by Awami League members in his local area.  He fears that he will be harmed for reasons of his imputed political belief based on his refusal to join the group who threatened him and the perception that he is against the Awami League.

48. Additional claims were made to the First Tribunal, namely that, at about 5pm on 1 November 2012, while he was in transit to Dhaka, [Mr A] received a telephone call from a member of the gang to the effect that the boss had not agreed to the new deadline and that [Mr A] needed to meet with the boss immediately.  When [Mr A] told them he could not meet that day, he was given 24 hours to attend.  He claims he was then called repeatedly by a member of the gang but hung up on him and switched his telephone off.

49. He claimed that, upon turning his phone on at about 11.30pm that night, he found that he had received numerous calls from his father.  When he called his father, his father told him that if he did not see the gang boss in the next few days, the gang would kill [Ms B].

50. [Ms B] claims that she was abducted by four gang members at about 11pm on 1 November 2012.  The gang members had forced their way into the house and beat [Mr A]’s father while looking for [Mr A].  They took her into a van and drove for about 30 to 40 minutes to a warehouse in the countryside.  She was detained there and raped by four men.  After about 24 hours she managed to escape and made her way to her brother in Dhaka where she was reunited with her husband and child.  The family departed to Chittagong [in] November 2012, before leaving by boat to [Country 1], and then on to Australia.

    Evidence:

51. The Tribunal has before it a range of material, including, relevantly:

    a)the applicants’ protection visa application forms, which were lodged on 9 July 2013;

    b)the applicant’s identity documents provided to the Department, being copies of [Mr A]’s national identity card and qualifications, and the birth certificates of [Ms B] (untranslated), [Child D], [Child E] and [Child F].  No identity documents were provided for [Child C];

    c)the protection visa decision record dated 31 October 2014 (delegate’s decision);

    d)the application for review form dated 12 March 2015, which included a copy of the delegate’s decision;

    e)Department file [number] concerning the applicants’ protection visa application, which includes the following documents:

    ·statutory declaration of [Mr A], sworn on 3 July 2013;

    ·Secondary School Academic Transcript and Secondary School Certificate Examination in respect of [Ms B];

    ·Form 80 Personal particulars for assessment including character assessment by the primary visa applicant [Mr A];

    ·Form 80 Personal particulars for assessment including character assessment by the secondary visa applicant [Ms B]; and

    ·various untranslated documents;

    f)all documents submitted to the current Tribunal in support of the applicants’ review application, including

    ·pre-hearing written submissions from the applicants’ representative dated 12 May 2022;

    ·submissions from the applicants’ representative dated 18 August 2022, attaching

    oletter from [Dr G], [named] Medical centre, concerning observations on [Mr A]’s scar tissue, dated 12 August 2022;  and

    o

    ‘affidavit of self declaration’ from [Mr H], dated 14 August 2022

    
    
    

    ·submissions from the applicants’ representative dated 22 August 2022, attaching:

    o‘affidavit of father’ from [Md I], dated 21 August 2022;

    oletter from [Mr J], dated 17 August 2022;  and

    oletter from [Dr K], [named] Medical Centre, concerning [Ms B]’s medical conditions, dated 21 August 2022.

    g)a letter from [Ms L], counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT), dated [in] August 2022;

    h)all documents submitted to the Second Tribunal in support of the applicants’ review application, including:

    ·post-hearing written submissions from the applicants’ representative dated 6 February 2017; and

    ·a letter from [Ms L], Counsellor at the Queensland Program of Assistance to Survivors of Torture and Trauma Inc. dated [in] January 2017;

    i)all documents submitted to the First Tribunal in support of the applicants’ review application, including:

    ·post-hearing written submissions from the applicants’ representative dated 21 March 2016;

    ·pre-hearing written submissions from the applicants’ representative dated 26 February 2016;

    ·statutory declaration of [Mr A], sworn on 25 February 2016;

    ·statutory declaration of [Ms B], sworn on 25 February 2016;

    ·affidavit of [Mr H], sworn on 17 February 2016;

    ·a letter from [Mr M], General Secretary of the Bangladesh Human Rights Organisation dated [in] February 2016;

    ·a letter from [Ms N], Social Worker at the [Hospital 1]’s emergency department dated 1 March 2016;

    ·medical records;

    ·annual reports on Bangladesh published by Amnesty International in 2013 and on an unspecified date;

    ·a report published by the Immigration and Refugee Board of Canada dated 5 August 2003;

    ·a fact-finding mission report by Odhikar dated 9 September 2012; and

    ·various news articles; and

    j)country information on Bangladesh, as set out below.

    Country of reference:

1. The applicants claim to be citizens of Bangladesh.  Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is their country of nationality and also their receiving country for the purposes of s36(2)(a) and s36(2)(aa) of the Act.

2. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country.  Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Hearing:

3. The applicants appeared before the Tribunal on 16 June 2022 and 25 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a female interpreter (as requested by the applicants) in the Bengali and English languages.

4. The applicants were represented in relation to the review and the representative attended the hearing.   

5. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicants that to be granted a protection visa they must either be recognised as refugees or be persons entitled to Complementary Protection.

6. The Tribunal explained that under Australian law, to be a refugee they must have a well- founded fear of persecution in Bangladesh.  This means the Tribunal must be satisfied that there is a real chance that they will face serious harm if they returned to Bangladesh.  The harm must be directed at them for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

7. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk they will suffer significant harm if removed from Australia to Bangladesh.

   Section 438 Certificate

8. A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act (the Certificate).

9. On 8 October 2018, the Department issued a Certificate which stated that disclosure of the information contained in folio [number] in the Department file [number] “would be contrary to the public interest because the aforementioned folios contain an internal working document that contains information related to the department’s internal legal position”.  The Tribunal had considered the validity of this Certificate and had determined that this Certificate may not be valid as it referred to the incorrect folio and Department file number.  The Tribunal had written to the Department advising the concern the Tribunal had on this Certificate. 

10. On 9 May 2022, the Department revoked the Certificate issued on 8 October 2018 and issued a new Certificate.  The new Certificate states that it applies to the information in folio [number] of the Department file number [number].  It further states that the disclosure of the document would be contrary to the public interest because the document contains information related to the Department’s internal legal position. 

11. The Tribunal considered the validity of the new Certificate.   It was satisfied that the document to which it referred contained material in respect of which disclosure would be contrary to the public interest.  It was also satisfied that the material covered by the notice had no relevance to this application and determined that it had no reason to have regard to the contents.

12. The Tribunal related the contents of the notice, gave a description of the material covered by it, together with the Tribunal’s assessment of both as described above.  It offered the representative a copy of the notice.  The representative told the Tribunal he was content with the Tribunal’s assessment, on the basis that the material covered by the notice would have no bearing on the outcome of the hearing.  The Tribunal confirmed that this was its assessment.

13. The Tribunal heard from [Mr A].  He confirmed that his claims as summarised in the protection visa application, written claims and the delegate’s decision (narrated to him by the Tribunal as per paragraphs 34 to 47) were not in dispute.  The Tribunal asked him whether those claims were accurate and complete.  He stated that they were and that he did not need to change them.   

14. The Tribunal put it to [Mr A] that the claims the Tribunal had narrated were not complete, because [Ms B] had made significant additional claims which bear upon the claims he had originally made.  He accepted that this was correct.

15. The Tribunal took [Mr A] to his statutory declaration of 25 February 2016.  He told the Tribunal he was born on [date].  He confirmed that he discontinued his schooling at year 9 after his grandfather died.  He went to work in his father’s [business] until about 2002. In 2002, he moved to Dhaka and lived in a share house.  He had moved to take up a position with one of his father’s suppliers, a [Mr O].  There he identified a business opportunity for himself in acquiring [Mr O]’s defective [goods] and finding buyers for it.  However, he continued to work for [Mr O] while pursuing this sideline.  In 2006, he claims to have met a man by the name of [Mr P], through [Mr O].  [Mr P] told him that he could make more money working in a garment factory in [Country 2].  [Mr P] made the travel arrangements.  While in [Country 2], he discovered that [Mr P] had provided him with a false passport to enable his [Country 2] employer, a [Mr Q], to exploit him as an illegal labourer.  [Mr A] was arrested in December 2008 and deported to Bangladesh.  He returned home to his family and resumed working for his father.  He married [Ms B] in September 2010.  His first son, [Child C], was born in [year].

16. [Mr A] told the Tribunal that, in about early 2012, he became aware that his father was making monthly payments of about 20,000 taka to a group known as the Thika.  He confirmed that, on about 1 May 2012, a group of about 5 men visited his father’s shop to collect the money and [Mr A] protested that the business could not afford the payments.  After some discussion, the men said they would return the following day to collect the money.  On about 2 May 2012, the men returned.  [Mr A] asked for time to pay.  One of the men told him he would need to discuss it with his boss.  The following day, about 3 May 2012, [Mr A] met with the boss at a restaurant.  The Tribunal asked his name.  He said he could not recall the name.  The Tribunal suggested that his statutory declaration contained detailed claims, at the centre of which was this man at the restaurant.  He reiterated that he could not recall.  The Tribunal suggested that his statutory declaration indicated that his father knew exactly who this man was, and the position he held in the Thika.  [Mr A] said that to recall his name worsened his depression.  The Tribunal suggested that his failure to recall the name of the man at the centre of his narrative might affect its assessment of his credibility.  He did not respond.

17. The Tribunal asked [Mr A] the approximate population of his hometown of [Town 1].  He said it was big enough.  When pressed, he said about 200,000.  The Tribunal suggested that Wikipedia said it was 93,000.  He said that might be right.  The Tribunal suggested that he had described a large gang in a relatively small town, and that their names must have been well-known.  He did not respond.

18. The Tribunal returned to [Mr A]’s statutory declaration, at the point at which the gang demanded 40,000 taka on 1 June 2012.  He agreed with the account read to him from his statutory declaration.  He further agreed that the gang returned to the house on 3 June 2012 demanded entry, and threatened him and his father with knives and a gun.  The Tribunal suggested to him that his account stated that the intruders did not seek money, but his agreement to join their gang.  He agreed.  The Tribunal asked [Mr A] to explain why they would do that.  He said that the gang had been asking for money and he had been resistant to paying it.  Questioned further, he said that the gang targeted young people to join their group and, if people resist, the gang actively targets them and kills them.  The Tribunal asked [Mr A] why they would recruit people in this way.  He said he did not know.  The Tribunal asked why, if they wanted money, they would not ransack the shop.  He said the gang made threats to shut down the business.  The Tribunal asked if his account was, if he and his father could not pay, he would be accepted into the gang instead.  He said that was correct.  The Tribunal asked what he would be doing for the gang.  He said he would be helping with the extortion of others. 

19. The Tribunal asked how it was he knew that the gang was associated with the Awami League.  He said it was because no-one could touch them.

20. The Tribunal asked if [Mr A] had ever obtained a medical report in relation to the injuries he said he had incurred at the hands of the gang.  He said he had provided a report to the Tribunal.  The Tribunal asked if he still carried scars or other injuries than an Australian doctor could attest to.  He said no longer carried signs of the injuries and so had not sought a report from an Australian doctor.  The Tribunal asked if there were no scars that were still visible.  He said he had scars on his leg and his head but they did not cause him pain and therefore he never felt the need to go to a doctor.  The Tribunal asked how severe the cuts had been.  He said they had been one inch deep.  On inquiry, he altered this to one inch long.  The Tribunal asked if the injuries had been stitched.  He said that he got 4 or 5 stitches in each wound.  The Tribunal asked how, if he was being attacked by 20 men, he would incur two superficial injuries.  He said not all of the 20 attacked him.  He said that after being attacked by one person with a blade, he fell down and some of the others started kicking him.  He said he then became senseless and could not recall other details.  The Tribunal suggested that this was not in his statement.  His representative suggested that he may have been in a state of shock.  [Mr A] adopted this and said he could not be sure what was going on around him.  The Tribunal suggested that his statement said that, after [Mr A]’s father asked the gang to leave, [Ms B] and the father went to find the local doctor.  He said that was correct.  The Tribunal asked who remained to look after him.  He said his mother stayed at home and, in response to the Tribunal’s question, said that his brother was in [Country 2] and his wife’s siblings were living in different towns and villages at the time.  The Tribunal suggested that there were no statements from his parents relating to this attack.  He said that was correct.  The Tribunal asked if there was a statement from the doctor.  He said he had provided that. The Tribunal suggested that it could find no supporting medical records, despite their being referred to in the representative’s 2016 submissions.

21. The Tribunal asked why it was that he was still lying on the floor when the doctor arrived.  He said that, when his father returned with the doctor, they took him to hospital. 

22. The Tribunal took [Mr A] to his claim that, about a week after this incident, he received a telephone call from a gang member who informed him that the amount he had to pay had increased to 200,000 taka.  He said that was correct.  The Tribunal suggested that things then went quiet for about 6 weeks and asked why that was.  He said it was because he had agreed to pay that amount if given time.

23. The Tribunal put it to [Mr A] that, in his 2013 statutory declaration, he had claimed that that the gang had returned on 31 October 2012 and that he was able to negotiate an extension until 10 November 2012, by which time he expected to have left Bangladesh.   He said that was correct.  The Tribunal put it to him that this was the point at which his narrative ended, and there is no mention at all of the most serious events he now claimed to have occurred.  The Tribunal asked why, in his 2013 statement, there was no mention of any event after 31 October 2012.  He said that, following that date, the gang raped his wife and he and his wife did not want to mention it.  The Tribunal put it to him that there was much else he did not mention:  he had not mentioned that his wife had been abducted, nor that the gang had returned looking for him, nor that the gang had reneged on the extension of time to pay.  He said that, when he and his wife first arrived in Australia, they did not want to mention the rape because they were afraid they would be shamed because of the rape, but later learned that these repercussions would not follow and decided they could disclose it.  The Tribunal put it to him that there were matters relevant to their later claims which they could have mentioned, without even referring to the abduction, but had not done so.  It asked why his statement ended with him being given the extension of time.  He did not respond.  The Tribunal put it to him that it was available for the Tribunal to conclude that he had made up the later incidents.  He said he had taken an oath to tell the truth.  The Tribunal put it to him that, if it took the view that he was not telling the truth about the later incidents and his reasons for not initially claiming them, it could affect the view it took of his credibility generally.  The Tribunal put the question to him again.  He said that he had a lot of things in his head at the time.  The Tribunal put it to him that he had invented the events following 31 October 2012 because the delegate had found his initial claim to lack plausibility as to the seriousness of the gang’s demands.  He said the claims in his 2016 statement were true.  He said that he and his wife had not mentioned these claims because they have children, and they feared what their children would think of them if they came to learn of them.  Pressed as to why other relevant details were not mentioned, he said the Tribunal could make up its own mind.

24. The Tribunal suggested to [Mr A] that the reason he could not name a single member of the criminal gang despite claiming numerous meetings and telephone calls was because those people never existed.  He said he had given the names he knew.  The Tribunal said there was also no statement from either of his parents to support his claims.  He said that, if he had been told they were necessary, he would have provided them.

25. The Tribunal heard from [Ms B].  It took her to her statutory declaration of 25 February 2016.  It then took her to her claim to have been abducted on the evening of 1 November 2012 and asked if that was correct.  She said that it was.  The Tribunal said it was attempting to determine the timeline of events.  It asked if her claim was that she made her escape in the early hours of 3 November 2012.  It asked if it was her evidence that, when she attempted to call her husband at 6am, his telephone was switched off.  She said it was.  It asked if it was also her evidence that she then telephoned her brother, who did not, at that time, know anything about her situation.  She said that was correct.  The Tribunal indicated that her statement claimed she then boarded a bus to Dhaka.  She said that was correct.  She did not recall what time she boarded the bus.  She said she arrived in Dhaka at 3.30pm and it was evening by the time she reached her brother’s house.  She said that [Mr A] then called his father, who brought the baby to Dhaka, arriving at about 4am on 4 November 2012.

26. The Tribunal asked [Ms B] when the doctor arrived, and why she had not mentioned that in her statement.  She said she was still in shock at the time and could not recall when her brother summoned the doctor.  The Tribunal asked if she recalled seeing the doctor.  She said there was a doctor but she could not recall when.  The Tribunal asked when she saw  [Mr M].  She said she could not recall, but it might have been before the doctor arrived.  The Tribunal asked why this was also omitted from her statement, and from her brother’s statement.  She said she did not mention every detail in her statement.  She said she was a victim of depression and forgot things.

27. The Tribunal suggested that it was unsure what to make of the letter from [Mr M] that was included with the submissions, because it had been unable to locate the so-called Bangladesh Human Rights Organization.  She said [Mr M] helped people and had been in the [named] newspaper.  The Tribunal said that there was a similarly named organisation, which had a different crest, address and telephone number, and did not list [Mr M] among its personnel.  The Tribunal suggested that the letter from [Mr M] may be a false document.  [Ms B] said it was all true.

28. The Tribunal suggested that it also doubted the authenticity of the letter from [Dr R].  She said the Tribunal might think that but, in her heart, she knew what she was saying was true.  The Tribunal asked who obtained the documents for her.  She said no-one had.  The Tribunal said they were dated 2016, so they must have been obtained by someone.  She said her brother went to the doctor, knowing she would need the document.

29. At this point, the applicants’ baby was crying which prevented any communication.  A brief adjournment was called.  The applicants were not able to make childcare arrangements and because [Mr A] was required to be present for the entirety of the hearing, there was no alternative while [Ms B] was giving evidence but to call a brief adjournment.

30. On resumption, the Tribunal sought to return to the matter of the authenticity of the letters from [Mr M] and [Dr R] might not be genuine.  In in the case of [Dr R], the Tribunal observed that, while she claimed to have postgraduate [qualifications], the standard of English and use of medical terminology seemed to be very poor.  However, the baby’s crying prevented further evidence being obtained.  The matter was therefore adjourned to a later date.

31. The hearing resumed on 25 August 2022.  The Tribunal acknowledged the receipt of the further evidentiary material received under cover of the applicants’ representatives’ letters of 18 and 22 August 2022.

32. The Tribunal took the parties to the photocopied letter from [Dr K] and asked whether it was genuine.  It suggested that the English language standard and expression was very substantially below that which might be expected from a medical practitioner whom the Tribunal had established to have been in practice in Australia for 40 years.  The letter was also presented in a variety of fonts.  The Tribunal asked if the original was available for production.  [Ms B] said it was not.  The Tribunal asked the parties to compare the letter with that from [Dr G] which, the Tribunal suggested, did not raise authenticity concerns.  It suggested that [Dr K]’s letter, as presented, could easily have been cut and pasted onto an original letterhead, with the addition of strikingly unprofessional text, and the failure to produce the original compounded that concern.  It asked [Ms B] if the letter was authentic.  She said it was.

33. The Tribunal took [Ms B] to the statement from her brother of 14 August 2022.  The Tribunal reminded [Ms B] that, at the earlier hearing, it had asked her some questions about her presentation at her brother’s house in Dhaka following her escape, based in part on her brother’s earlier statement.  In particular, it had asked about the attendance of [Dr R] and [Mr M].  She said she recalled.  The Tribunal suggested that her brother’s second statement, with minor additions, was extremely similar to the first one.  The Tribunal said it wanted to know how her brother managed to locate a specialist obstetrician/gynaecologist in an emergency, and also why he did not mention the claimed attendance of [Mr M].

1. The Tribunal told [Ms B] that it needed to consider elements of her claims quite carefully.  She said she understood.  The Tribunal asked if [Mr M] had attended at her brother’s house.  She said her brother had arranged for him to be there.  The Tribunal put it to her that this was not in her statement and asked why that was.  She said she could not remember everything, but what she remembered was in her statement.  She said [Mr M] was there, and that she remembered it.  The Tribunal reiterated that it was not in her statement.

2. The Tribunal asked who had obtained the statement from [Mr J].  She said her brother had obtained it.  The Tribunal asked if [Mr J] was someone her brother knew.  The Tribunal said there were some matters that should have been obvious to the author of the letter.  The first of these is that he only names the Bangladesh Manobodhikar Sanstha, and not any of the people associated with it, with whom he had worked.  The Tribunal put it to [Ms B] that, while attempting to verify the existence of that organisation, it had come across a number of other human rights organisations.  Those other organisations provided lists on their websites of lawyers who work for them, or take referrals, in the organisations’ human rights activities, and provide their contact details.  [Mr J] was not among them.

3. The Tribunal further put to [Ms B] that, in the course of seeking information about the Bangladesh Manobodhikar Sanstha (or variations thereof), it had come across another organisation with a very similar name, but with no personnel in common with any of the names she had provided.  It asked if the letter from [Mr M] was genuine.  She said it was genuine.  The Tribunal suggested that [Ms B] had met [Mr M].  said she met him once only, but she could not recall his appearance.  The Tribunal suggested that his letter, and that of [Mr J], was the only evidence the Tribunal could locate anywhere as to the existence of him or his organisation.  The Tribunal suggested that it was also very curious that her brother did not mention the presence of [Mr M] in either of his statements.  It put it to her that it was important that it could rely on the evidence she had submitted in support of her claims.

4. [Ms B] told the Tribunal that there were many human rights organisations in Bangladesh that are now lying low because of political pressure.  She said some had changed their identities and some were in hiding.  The Tribunal asked if that was what she said had happened with [Mr M]’s organisation.  She said it was and that, to the best of her knowledge, the documents were genuine and the people in them exist.  The Tribunal put it to her that it was not her knowledge, it was that of her brother and he had not even mentioned the organisation or [Mr M] in his statement.  The Tribunal had not been able to verify the existence of [Mr J].

5. The Tribunal took [Ms B] to paragraph 12 of her statutory declaration of 25 February 2016.  It suggested to her that that paragraph was extremely detailed:  it described the walk she took into a field, to a village she recognised, sighting an old man and recalling what he was doing when she summoned him, what he gave her to eat, the distance to the bus station, the location of the public telephone, who she called and in what order, what times the buses arrived and departed, and so on.  However, once she arrived at her brother’s house, there is a dearth of detail, and what is mentioned cannot be verified.  The Tribunal suggested that, in contrast to the earlier paragraphs, paragraphs 14 and 15 are vague, and do not mention the events for which supporting material is provided.  She said she had put in the statement what she had remembered, but with her current medical conditions, she could not recall some things clearly.  The Tribunal put it to her that the supporting material which was provided was most unsatisfactory.

6. The Tribunal took her to paragraphs 6, 7 and 8 of her statutory declaration, which describe the circumstances of her escape.  It put it to her that it read like a cheap novel, being implausibly melodramatic.  It instanced the female overseer who had determined [Ms B] to be from a good family and then, of all the many women allegedly taken to the warehouse, decided that was [Ms B] whose escape she would facilitate.  She said that was a matter for that woman and that it was her decision.  The Tribunal suggested that the decision was made despite the grave risk to her own life.  It further suggested that the woman’s description to [Ms B] of the power, influence and methods of the gang was reminiscent of a movie villain explaining his plans to the captive hero, and appeared calculated to bolster her protection claims.  She said it was true and that she had not invented anything.  The Tribunal asked why that woman would take such risks on her behalf.  She said people never know how Allah is going to help them.

7. The Tribunal took her back to paragraph 12 of her statutory declaration, in which she claimed to have attempted to call her husband from the public telephone on the morning of 3 November 2012 only to find it was switched off.  The Tribunal asked how she knew it was switched off.  She said it was not ringing.  The Tribunal put it to her that her husband’s evidence was that he had switched his telephone off on 1 November because he was tired of being pestered for the money, and that he had switched it back on at about 11.30pm that night and subsequently learned that she had been abducted. The Tribunal asked why he might have switched his telephone off after that.  She said the Tribunal would have to ask him, but that she knew he was scared of the gang.  The Tribunal asked if his principal concern might have been news of her welfare and why he would keep his phone off after learning she had been kidnapped.  She said, at this time, he did not know she had been kidnapped.  The Tribunal put it to her that this was not his evidence.  She said he had turned his phone off because the gang had been demanding money.  The Tribunal put it to her that there was an apparent conflict in her evidence and that of her husband.  It put it to her that her husband had turned his phone off in the afternoon or evening of 1 November and had switched it back on at 11.30pm that night, at which time he learned from his father that she had been kidnapped.  She said she did not know why his telephone was switched off.  The Tribunal suggested that her further evidence had been that she then called her brother, who confirmed to her that [Mr A]’s phone had been switched off.  She said that was correct. 

8. The Tribunal put to [Ms B] that, in her husband’s statement, there was one reference to switching off his telephone, which was on 1 November.  There was one reference in her statement to her husband’s telephone being switched off, which was on 3 November.  The Tribunal suggested that she and her husband had discussed how to coordinate their claims but had confused their timelines.  She said telephones can be switched off at any time for any reason.  The Tribunal suggested that both she and her husband had made one mention of telephones being switched off and had got their stories out of synchronisation.  She said that all of her evidence was true.

9. The Tribunal put it to [Ms B] that it might hold serious doubts that the whole kidnapping incident had occurred at all.  One reason for this was that her husband’s initial account excluded all of these details, even allowing for omission of the rape for cultural reasons.  It put it to her that the kidnapping was included because she and her husband knew that his initial account was too weak for the grant of a protection visa.  She said had lived through it and knew it was true.  The Tribunal put it to her that the statement of her father-in-law of 21 August 2022 provided a significant amount of detail for the period May to June 2012, but dealt with the alleged abduction in extremely vague terms over four lines right at the end of the statement when, on her husband’s evidence, it was to her father-in-law that the kidnappers made their demands and he who relayed them to her husband.  This was not mentioned in her father-in-law’s statement.  She said there was a strong social stigma about the rape and he obviously did not wish to mention it.  When pressed, she said she did not know, but that he had had three strokes and a poor memory.   The Tribunal suggested that the rest of his statement was quite detailed but that he recalled nothing of any value as to her central claims in which he was said to have been closely involved.  She did not respond.

10. The Tribunal heard again from [Mr A].  The Tribunal indicated to him that it needed to reconcile his statutory declaration of 25 February 2016 with the one of 3 July 2013.   It asked why the very important details of the events of 1 November to 5 November 2012 were left out of his first statutory declaration.  He said that, at the time, he did not know he needed to include these details.  He said that if he did not know it was important to say these things, he could not be faulted for not including them.  The Tribunal pressed the question.  He said, in 2013, he and his wife were new in Australia and thought they would be shamed over their experience and it was only later that they opened up.  The Tribunal put it to him that there were significant events that had nothing to do with what he claimed happened to his wife.  It took him to paragraph 29 of his 2016 statutory declaration.  It put it to him that everything from that paragraph onward were new details.  This included the Thika group reneging on the extension of time to pay the extortion demand.  He said he had not included this because he was not asked about it.  The Tribunal asked why he had omitted the details of what he now claims happened on 1 November 2012.  He said it was a bad time, and because he was not asked, he thought it was not important to recount those events.  The Tribunal put it to him that his father’s statutory declaration was inconsistent with his 2016 statement.  The Tribunal put it to him that his evidence was that he switched his telephone back on at 11.30pm on 1 November 2012, upon which he learned of the kidnapping from his father, together with the kidnappers’ demands.  On his evidence, his father had made repeated frantic calls to him.  However, his father’s statement contains no account of his own involvement in this episode.  He said his father was aged and had suffered three strokes with little medical help.  Together with the stress and social stigma, he had blanked it out of his memory.  The Tribunal put it to him that he had provided extensive details, with the dates, of his earlier encounters with the gang, but did not recall anything material of his role in the kidnapping story, or even of taking [Child C] to Dhaka to be reunited with his parents.  He said that his father did not understand the significance of events and that he could not vouch for the priority his father gave to some events or to others.  He said that if his father had known that the later events were important, he would have included them.

11. The Tribunal asked why he might have been given an extension to pay the demand on 31 October 2012, only for this to be withdrawn on the next day when he was on the bus to Dhaka.  He said he had negotiated the extension to allow himself time to leave the country.  The Tribunal suggested that he was on the bus on 1 November and received a call from the Thika Group at about 5pm.  He agreed.  The Tribunal said that his evidence then was that the gang told him that he had 24 hours to meet the boss.  He agreed.  The Tribunal said that his evidence was that he was to meet the boss at 6pm on 2 November, but he then got into an argument with them and switched his phone off.  He agreed.  The Tribunal asked if it was a good idea to do this.  He said it was not a good idea, but that they were repeatedly calling and threatening and he could not take it any more.  The Tribunal asked why they could keep calling him after they had set the arrangements.  He said he had no intention of meeting them or paying them anything and he knew they would keep at him, so he switched his phone off.  He said that, however, he had no idea they would come after his family. The Tribunal asked why he would turn his phone off before he went on the run. He reiterated that he had no intention of keeping the meeting.

12. The applicant’s representative relied on the submissions he had made to the previous Tribunal in February 2016, together with those of May and August 2022.  He referred, in particular, to paragraph 16 of his submissions of 22 May 2002, citing W575/01A v MIMA [2002] FCA 379, discussed further below. He also referred to country information on sexual assault in Bangladesh, also discussed further below.

    Assessment of claims and evidence, and findings:

13. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant's case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

14. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.  In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

15. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

100.   The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

101.   The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

102.   However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

103.   In assessing the evidence, the Tribunal has been mindful that [Mr A] did not complete high school.  It has also been mindful that that, whenever evidence is received in a language other than the applicants’ first language or through an interpreter, there may be differences in meaning and nuance that may be lost.  The Tribunal acceded to the applicants’ request that female interpreters be used in order to accommodate [Ms B]’s reticence in giving evidence as to her claimed abduction and rape.  The Tribunal is satisfied that the applicants were able to communicate effectively, understood the proceedings and participated in the hearing in a meaningful way.

104.   The Tribunal has considered [Mr A]’s claims of having been the victim of extortion and violent physical assaults at the hands of the Thika gang in the period up to and including 31 October 2012.  These are the claims originally made in his protection visa application, with additional details provided in material later submitted by him. 

105.   In assessing these claims, Tribunal has had regard to the following country information on Bangladesh relevant to the applicants’ claims.

Political opinion (actual or imputed)

106.   The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[3] reports the following on people who hold an actual or imputed political opinion:

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

…

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

…

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

[3] Australian Department of Foreign Affairs and Trade, ‘Country Information Report: Bangladesh’ (22 August 2019) at pp 24-26.

Political auxiliary organisations

107.   The Department of Foreign Affairs and Trade’s latest country information report on Bangladesh[4] reports the following on political auxiliary organisations:

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

The US State Department’s 2018 Human Rights Report on Bangladesh documented large numbers of arbitrary arrests. Such arrests often occurred in conjunction with political demonstrations, such as protests related to garment factory conditions or road safety (see Politically Motivated Violence (PMV).

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

…

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

Groups more likely to be at greater risk of arbitrary arrests include leaders and members of opposition political groups, particularly the BNP, and undocumented Rohingya who have integrated with residents outside the Cox’s Bazar camps. Furthermore, Rohingya may be reluctant to engage with the courts to fight arbitrary arrests and charges because of their lack of official status.

[11] Australian Department of Foreign Affairs and Trade, ‘Country Information Report: Bangladesh’ (22 August 2019) at pp 43 to 44.

149.   There is nothing in the applicants’ claims and evidence to satisfy the Tribunal that they, or any member of their family unit, have a political profile, occupation or membership of a particular social group that would expose them to the risks of harm identified by any of the country information as a necessary and foreseeable consequence of them returning to Bangladesh now or in the reasonably foreseeable future.

150.   Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal is not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Bangladesh now or in the reasonably foreseeable future.

Conclusion: Refugee Criterion

151.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

Conclusion: Complementary Protection

152.   Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh that there is a real risk that they will suffer significant harm.

Overall conclusion:

153.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.  Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.  It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

154.   The Tribunal affirms the decision not to grant the applicants Subclass 866 Protection (Class XA) visas.

James Lambie
Senior Member