2100026 (Refugee)

[2023] AATA 1879

2100026 (Refugee) [2023] AATA 1879 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANTS’ REPRESENTATIVE:        Mr Mohammed Ullah (MARN: 0321608)

CASE NUMBER:  2100026

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Kate Chapple

DATE:26 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act and the other applicants satisfy s 36(2)(b) of the Act.

Statement made on 26 April 2023 at 1:45pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – membership and activities in organisation affiliated with political party – threats by members of opposing party, now in government, including while working and doing organisational activities in third countries – continuing activities in Australia without threats – company in home country appropriated by managing director and politically-motivated criminal charges brought and outstanding – applied after initial visa expired and medical treatment visa refused – country information supports claims of fabricated charges – tribunal unable to locate specific corroborative information, but not reasonable to conclude that claims are not authentic or reliable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A

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.

EVIDENCE BEFORE THE TRIBUNAL

Timeline

1. Departmental and Tribunal records disclose these key dates:

   1.1.Main applicant moved from Bangladesh to [Country 1]: [Year]

   1.2.Main applicant moved from [Country 1] to [Country 2]: [Year]

   1.3.Main applicant returned to Bangladesh for a couple of months before returning to [Country 2]: [Year]

   1.4.Main applicant moved from [Country 2] to [Country 3]: [Year]

   1.5.Main applicant returned to Bangladesh for a few months: [Year]

   1.6.Main applicant arrived in Australia with family on a four year [Temporary] Visa: [August] 2013

   1.7.Main applicant lodged Medical Treatment Visa application: 19 May 2017

   1.8.Delegate’s decision to refuse to grant the Medical Treatment Visa: 1 June 2017

   1.9.Main applicant lodged protection visa application: 15 February 2018

   1.10.Delegate’s decision to refuse to grant protection visa: 22 December 2020

   1.11.Applicant lodged application for review of protection visa refusal decision: 3 January 2021

   Protection visa application

2. The main applicant’s protection claims set out in the protection visa application as follows (no separate claims advanced by the other applicants; no spelling or grammar corrections):

   2.1.[Reasons main applicant left Bangladesh] I left Bangladesh to secure the future of my family members. Due to my political affiliations with Jamaati islam which is an affiliated party to the Bangladesh National Party, the situation got very dire. I have received several attacks, have now a couple of pending criminal charges that were issued after I left the country recently. I tried to settle down in my country but had to relocate to secure a better future, as my family was being threatened as well. My business shares, assets and properties are also being denied from me and repossessed as the judiciary system is very corrupted in Bangladesh. If I go back to Bangladesh I will be subject to torture, or I may be killed for Judiciary or extra Judiciary reasons. I have been to [Country 2] before and I have been persecuted by the Awami League political activists on several occasions. Back in [Year] I used to own a business there, and they put a picture of Osama Bin Laden with a bomb in the toilets of my shop. I was not there at the time, however two of my partners were arrested. It was later found that it was an attempt to frame and all charges were dropped. I have also received several death threats to my family members in around 2008 when my family was residing in Bangladesh and I was in [Country 2]. They threatened to leave [Country 2] or they would harm my wife and kids or even kidnap them.

   2.2.[Harm experienced by main applicant in Bangladesh] I have been attacked 3 times, and once was attacked with the intent of having my daughter kidnapped. I have received a number of political threats and extortions through phone calls. The people involved in these activities are mostly Awami League terrorists and Activits. They are trying to wipe out the opposing party and any one affiliated with them. Currently the opposing party's leader, three times prime minister Khaleda Zia is incarcerated. The top 5 leaders of Jamati Islam have been executed for juridical reasons, all of which I have ties too and knew them personally. In [March 2023] At [Location 1] some unknown miscreant shot at me but fortunately the bullet missed. The assailant quickly escaped. I went to police station to file a case but they took only general Diary report instead of a criminal case.

   2.3.[Help sought by main applicant in Bangladesh] I talked with the Officer in Charge (OC), [Location 1] Police Station, Dhaka Metropolitan Police (DMP), Dhaka. I also spoke with Officer in Charge (OC), [Location 2] Police Station, Dhaka Metropolitan Police (DMP). They did not take any legal action, except just a general diary report, if they did the miscreants would have been punished.

   2.4.[Attempt by main applicant to move to another part of Bangladesh to seek safety] I tried to move [Village 1], Laksham, district Comilla. 2nd May 2013, At the time I tried moving on my own first there and seek protection first and then having my family join me, however as I attempted to move there I was followed by Awami League Activists. In lieu of that information, as I was informed by family members from the village, I moved away avoiding another attack.

   2.5.[What main applicant thinks will happen to him if he returns to Bangladesh] They have already assimilated my portion of the company named [Company 1]. They are trying to grave all of my property in Bangladesh. I have to criminal cases filed against me. As a result I may be killed either juridically, extra juridically or by terrorism. They may also harm/torture my family members. I may also be subject to extensive torture with the country's juridical system.

   2.6.[Type of harm or mistreatment the main applicant thinks he will experience if he returns to Bangladesh] First threat is torture by the juridical system. Bangladesh is known to have a very corrupt political and juridical system. There have been humanitarian cases raised towards the prime minister relating to these matters. The current Government (Awami League) has been in power for about a decade, and they have been overtaken the juridical and authorities system within the country. As stated before may people related to opposing parties have been executed with juridical cases. In some cases they were charged with Crimes against humanity and when those crimes were committed the criminals were only aged 7 to 10 years old. A general case was lodged against me for which events I was not even aware of, as at the time I was in Australia. If I am arrested, whether or not I am proven guilty, the country is known to provide extensive torture to the suspects. My family has been threatened many times and they are subject to may risks as well. People have been picked up from their own property and killed. Many murder happened but no legal actions were taken as the authorities are afraid of the government.

   2.7.[Reason main applicant thinks the authorities in Bangladesh will not protect him] As stated before, the authorities of the country only obey the government. In some cases, it is reported that the police even escorted the Awami League activists and terrorists to riots, as they were committing act of extreme violence and vandalism, where the police just stood and watched them.

   2.8.[Reason main applicant thinks he is unable to relocate within Bangladesh] This is a dire political situation. It does not really matter where one relocates in a situation like this, as they would have to live life as a fugitive, both him and his family. There aren't many places to hid when it is the government that wants eliminate all of the opposing party.

3. Supporting evidence lodged with the protection visa application:

   3.1.English translation of General Diary note dated 3 August 2008 from the main applicant’s wife to the [Location 2] Police Station.

   3.2.English translation of General Diary note dated 1 March 2013 from the main applicant to the [Location 2] Police Station.

   3.3.English translation of General Diary note dated [May] 2013 from the main applicant to the [Location 3] Police Station.

   3.4.English translation of [Court 1], Dhaka First Information Report [number] dated 12 December 2015.

   3.5.English translation of [Court 1], Dhaka Charge Sheet [number] dated 30 June 2016.

   3.6.English translation of [Court 1], Dhaka Order dated 15 January 2017 in relation to case [number].

   3.7.English translation of [Court 1], Dhaka Order dated 17 July 2017 in relation to case [number].

   3.8.English translation of [Court 1], Dhaka Order dated 18 July 2017 in relation to case [number].

   3.9.English translation of [Court 1], Dhaka Order dated 14 January 2018 in relation to case [number].

   3.10.English translations of court documents issued by the [Court 1], Dhaka relating to case [number] between [Mr A] as the complainant and the main applicant as the accused, setting out allegations (inter alia) that the accused is a miscreant, terrorist, conspirator and enemy of Bangladesh.

   3.11.Notarial Certificate (in English) dated 12 November 2019 given by the main applicant’s lawyer certifying in relation to various criminal charges against the main applicant.

   3.12.Affidavit (in English) dated 13 January 2019 by the main applicant’s nephew.

   3.13.Affidavit (in English) dated 13 January 2019 by a relative of former Prime Minister Khaleda Zia.

   3.14.Affidavit (Lawyer’s Statements) (in English) dated 13 January 2019.

   3.15.Affidavit (Neighbour’s Statement) (in English) dated 13 January 2019.

   3.16.Personal statement (in English) by [Mr B] dated 13 January 2019.

   3.17.Statement (in English) by [Mr C], [office bearer], BNP dated 28 December 2018.

   3.18.Statement (in English) by [Mr D], [office bearer], Bangladesh Jamate Islami dated 28 December 2018.

   3.19.English translation of an undated piece written by the applicant titled, ‘[Title]’.

   3.20.English translation of undated newspaper article titled, ‘[Title referring to the applicant]’.

   3.21.English translation of an undated newspaper report titled, ‘Expatriates’ grants to PM’s relief fund’ and various undated related photographs.

   3.22.English translation of an undated newspaper report titled, ‘The plight of Terrorist is increasing’.

   3.23.Human Rights Watch, Amnesty International, and The Daily Star reports dated 2017, 2018 and 2019 of human rights violations in Bangladesh against individuals opposing the government.

4. Other departmental records:

   4.1.Decision record relating to the delegate’s refusal decision.

   4.2.Interview audio file.

   4.3.Case file.

   4.4.Internal records relating to the applicants.

   Application for review

5. The Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing on 21 March 2023 and to provide pre-hearing submissions.

6. Prior to the hearing, the applicants’ representative provided to the Tribunal:

   6.1.Confirmation that the applicants intended to participate in the hearing.

   6.2.Main applicant’s statutory declaration dated 13 March 2023.

   6.3.Statement (in English) by [Mr E], [office bearer] (2023-2024), Bangladesh Islami Chatra Shibir dated 12 March 2023.

   6.4.Report (undated, unattributed) titled, ‘State Sponsored Carnage in Bangladesh: Democracy, Governance, Human Rights in Peril’.

   6.5.Report (undated, unattributed) titled, ‘Desperado: Anarchy and Terrorism by Police in Bangladesh’.

   6.6.Report (undated, unattributed) titled, ‘Enforced Disappearance of Sala Uddin Ahmed’.

   The initial hearing

7. The applicants appeared before the Tribunal at a hearing conducted in person on 21 March 2023, with the assistance of an interpreter in the Bengali and English languages.

8. The main applicant told the Tribunal he would be the only party giving evidence at the hearing and he did not require an interpreter.

9. The Tribunal asked the main applicant to confirm whether his representative would be attending the hearing. The main applicant responded that his preference is to have his representative present, however his representative is located in Sydney and he didn’t realise that it was possible for his representative to attend via video link.

10. The Tribunal adjourned the hearing to allow the main applicant the opportunity to arrange for his representative to attend a rescheduled hearing. The main applicant requested a date after the conclusion of Ramadan.

    Pre-rescheduled hearing

11. The Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing on 24 April 2023.

12. The Tribunal wrote to the applicants on 27 March 2023 inviting them to respond in writing to certain adverse information pursuant to s 424A of the Act by the date and time of the rescheduled hearing. In particular, the s 424A letter advised as follows:

    In conducting the review, the Tribunal is required by the Migration Act 1958 (Cth) to invite the applicants to comment on or respond to certain information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. This is referred to as adverse information.

    The adverse information is as follows:

    1. The Tribunal has been unable through its own inquiries to locate any corroborative records or other evidence of any police or court matters in Bangladesh involving any allegations or charges against the main applicant, including a matter referenced as [named] Thana Case no: [Number] sections: [Section numbers] of the Bangladesh Penal Code 1860 (State v [the applicant] and others); CR case no: [Number], section [Section number] of Penal Code of Bangladesh 1860 ([Mr A] v [the applicant] - Fugitive). The presiding member notes that this information is not consistent with the existence of various court documents (translated by non-accredited translator) and other information submitted by the main applicant to the Department as part of the protection visa application.

    2. The Tribunal has been unable through its own inquiries to locate any corroborative information to indicate that the main applicant has any public or recognised profile in Bangladesh as a person associated with the Jamaat-e-Islami Party or any other Bangladesh Nationalist Party affiliate. The presiding member notes that this information is not consistent with the main applicant’s claims.

    3. The Tribunal has been unable through its own inquiries to locate any corroborative information to indicate that the main applicant had owned, and had been dispossessed of, a share of [Company 1]. The presiding member notes that this information is not consistent with the main applicant’s claims.

    This adverse information is relevant to the review because it is related to, however not consistent with, the main applicant’s claims. If the presiding member relies on the adverse information, it may be the reason or part of the reason the presiding member affirms the decision under review.

    Please note that the presiding member has not made a decision about the adverse information.

    Pursuant to s 424A of the Migration Act 1958 (Cth), the Tribunal invites the applicants to comment on or respond to the adverse information in writing by the rescheduled hearing date and time, being 9.30am on 24 April 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator. The presiding member will discuss the adverse information and the applicants’ written comments or response with the applicants at the rescheduled hearing.

13. The main applicant responded in writing to the Tribunal’s s 424A letter on 12 April 2023 in the following terms:

    I would like to inform you that in Bangladesh, there are Notary Public in the district area/areas appointed by the Ministry of Law and Justice to certify documents as true copies of the originals cited before the notary public. A Notary Public must have a Bangladeshi minimum bachelor’s degree in law and be a member of the Bangladesh Bar Council, Dhaka, to get membership as a Notary Public in Bangladesh. A compliance Section of the Ministry of Law and Justice monitors their activities and renews the licence of a Notary Public each year according to the country's law.

    I have submitted documents with the Department of Home Affairs (Ref: Thana case [Number], section [Section numbers] BPC 1860 (State V [the applicant] and others) are certified by a Notary Public of Dhaka, Bangladesh. The JI and ICS activists were on a demonstration for a fair an accessible election against AL government in the year 2015; then, police forcefully dispersed the activists using batons and tear shells. Later the police filed a criminal case against JI and ICS activists, and the AL goons implicated me in that case. The allegations of that case were illegal gatherings, destroying public properties, and intimidating public servants/state police. This case is still pending before darker metropolitan Magistrate Court.

    The other criminal case (Ref: CR case [Number]) was lodged by the AL leader against me as he was offended when my article was published ([Title]) in a national daily newspaper named “[Newspaper]” in the print edition in the year 2011. My article was aggrieved and defamed to the AL leader (complainant), so he lodged a personal criminal case against me under section [Number] of the BPC 1860. The punishment for this crime is a life sentence if proven beyond a reasonable doubt; the matter is still pending at the darker metropolitan Magistrate Court.

    I have no idea about the inquiry power of the Tribunal. Still, I emphasise that all my submitted documents/papers to the Department and before the Tribunal are accurate to my best knowledge. I want to keep it to the Tribunal’s discretion to consider this submitted department of Home Affairs and before the tribunal to support my and my family's application for subclass 866 case number 2100026.

    Regarding the share of [Company 1], the other shareholder was dispossessed by taking advantage of my affiliation with JI. I wouldn't say I like to press the matter as my evidence before the Tribunal as it is personal and civil in nature. Presume the country's situation becomes normal and prevails general democracy for the nation through a free and fair election by caretaker government in that case I may reclaim my share from the [Company 1] shareholder who dispossessed me taking advantage of my political background.

14. The main applicant also provided the following additional material:

    14.1.Statement (in English) by [Mr F], [Office bearer], Bangladesh Jamaat-e-Islami dated 16 March 2023.

    14.2.Statement (in English) by [Mr F], [Office bearer], Bangladesh Jamaat-e-Islami dated 20 March 2023.

    The rescheduled hearing

1. The applicants appeared before the Tribunal at a rescheduled hearing conducted in person on 24 April 2023. The applicant’s representative attended the hearing in person, and an interpreter in the Bengali and English languages was available on standby via telephone for the duration of the hearing if required.

2. The main applicant’s evidence is summarised as follows:

   16.1.The main applicant was born in Dhaka in [Year]. He grew up with his parents and [brothers]. His father was the general manager of [Employer 1]. His parents and [some] of his brothers are no longer alive. His eldest brother, [an Occupation 1], remained in Dhaka and is now retired. Another brother has lived in [Country 4] for 30 years, and another has lived in Australia for 28 years and is [an Occupation 2] in Brisbane.

   16.2.The main applicant was drawn to politics in high school when he joined the student wing of the Jamaat-e-Islami (JI) party, Islami Chatra Shibid (ICS). The focus then was on building morality among young supporters. JI advocates moderate principles of social justice, welfare, and addressing corruption and greed. During his time at university, the main applicant was the [office bearer] of [a] district division of ICS for four years, and later served as the district [office bearer]. He was also the ICS candidate on the [University] student union.

   16.3.The main applicant’s political activity on the ground included organising relief efforts amongst JI supporters to assist flood and cyclone affected citizens in Bangladesh. He also had a keen interest in [Work task] and began [doing work tasks].

   16.4.The main applicant and his wife met in Dhaka in [Year]. His wife has never been involved in the JI party or Bangladeshi politics.

   16.5.In [Year], after completing his masters in [Subject 1] at [University], the main applicant took a job with the [Country 1] government-owned [Agency] doing [Job tasks]. His wife joined him in [Country 1] and they had their first child there in [Year]. The main applicant kept in contact with JI members and supporters in Bangladesh while in [Country 1], and because of his [work], he became known more broadly in Bangladesh.

   16.6.The main applicant returned to Bangladesh briefly in [Year] with his wife and son. In power at that time was the Bangladesh Nationalist Party (BNP), with which JI was aligned. Some of the main applicant’s ICS friends and contacts from university invited him to join them in [Country 2] where they needed someone to lead the [Organisation 1]. The main applicant accepted the offer and later served as president of the [Organisation 1] in [Country 2] for five years during which he raised natural disaster relief funds for a range of countries, including Bangladesh. His wife and son, who was then still very young, remained in Bangladesh until [Year] and the main applicant travelled from time to time between [Country 2] and Bangladesh.

   16.7.The main applicant’s work with the [Organisation 1] was unpaid, so he established a [business] in [Country 2] in [Year]. His wife and son joined him in [Country 2] that year too. The business became very successful. The main opposition party in Bangladesh, Awami League (AL), at the time had a strong following in [Country 2]. The main applicant, and his political affiliations and business pursuits in [Country 2], were well known to AL.

   16.8.In 2001, sometime after 9/11, AL affiliates in [Country 2] began a campaign to destroy the main applicant’s business. On one occasion, his two business partners, who were also involved with the [Organisation 1], were on the premises when [Country 2] police arrived, moved on the customers, located a bomb in the toilet and a picture of Osama Bin Laden, and arrested the partners on charges of Al-Qaeda affiliation. Six months later, they were released on no evidence.

   16.9.The main applicant continued his work with the [Organisation 1] and established another similar business elsewhere in [Country 2], however his movements were known to AL affiliates and he and the business were the subject of ongoing threats. His two younger children, a son and daughter, were born in [Country 2] in [Year] and [Year].

   16.10.In 2004 there was a major flood in Bangladesh. Through the [Organisation 1], the main applicant and his colleagues decided to raise relief funds to assist those affected. BNP was still in power at the time. The main applicant travelled to Bangladesh to consult with the relevant minister about the fundraising project, visited the flood-affected areas, and to distribute the funds. He alluded to the various photographs he had provided to the Tribunal relating to this project, including ones where he is pictured with the then [Government official].

   16.11.The main applicant and his family returned to Bangladesh in 2008 with the intention of staying, having closed the business in [Country 2]. He invested funds in a [Company 1] with a couple of friends. Only subsequently he discovered that the managing director of the company was and remains a strong AL supporter who used the main applicant’s funds to acquire a share of the company in his own name. To date, the main applicant has not been able to recover his investment.

   16.12.Bangladesh in 2008 had become dangerous for the main applicant and his family. The political situation was changing dramatically. The caretaker government came to power in 2006 when the BNP lost power, and AL grew increasingly violent over the two years leading into the general election at the end of 2008. AL won a majority and formed government in early 2009.

   16.13.The Tribunal asked the main applicant about the general diary note from his wife to police dated 3 August 2008. His wife had received telephone threats from an unnamed person that the family would be expelled from Bangladesh, their assets confiscated, and their daughter kidnapped. She made a complaint to police, however there was no investigation or action taken. The main applicant suspects that the managing director of [Company 1] was somehow implicated.

   16.14.Concerned about the evolving situation in Bangladesh, the main applicant and his family returned to [Country 2] in [Year]. They remained there until [Year]. The main applicant continued his work with the [Organisation 1] and established another [business] outside [City, Country 2], however he was subjected to ongoing threats and interference from AL affiliates.

   16.15.In 2011, the main applicant and his family returned to Bangladesh. The family remained, however it wasn’t safe for the main applicant to do so for any extended period. AL had become emboldened in power and were brutally suppressing any opposition, including kidnappings and disappearances of BNP and JI party members. JI was and remains a significant minority party as it controls the balance of power between the major parties.

   16.16.In 2011, the main applicant travelled to [Country 3] where he thought it would be safer and was able to continue his [Organisation 1] work. The [Organisation 1] operated throughout Europe. He also established a [Business 2] in [Country 3]. His presence there soon became known to AL, and was aware that one of the AL leaders had visited [Country 3] to gather support from local AL members to monitor and threaten his activities. The main applicant travelled between [Country 3] and Bangladesh from time to time to see his family.

   16.17.The main applicant returned to Bangladesh in March 2013 as he could no longer tolerate the AL threats in [Country 3] nor the fear of his family being harmed in Bangladesh as a result of his political affiliations.

   16.18.The Tribunal asked the main applicant about the general diary note from the main applicant to police dated 2 May 2013. On one occasion, he was outside his apartment on a morning walk and 7 to 8 people started following him; he felt he was being targeted, so slipped into the underground carpark and got away. On another occasion, he believed he was being shot at outside his apartment, however a bus passed at the critical moment and he escaped harm. He reported the incidents to the police who said they would look into it, however they took no action. AL as the governing party also control the police.

   16.19.The main applicant never sought protection in [Country 2] or [Country 3] because he knew he could never be protected from the AL affiliates who were harming and threatening him there.

   16.20.The main applicant and his family came to Australia in August 2013 on a four year [visa]. His brother had encouraged him to leave Bangladesh due to the increasingly dangerous situation and come and work for him as his [manager]. His brother wanted him to continue in the role and supported his visa renewal, however by the time the application for renewal was made, the main applicant had turned [age] and disqualified.

   16.21.The 2014 general election in Bangladesh was a sham, returning AL to power. Serious oppression and torture of BNP and JI party members escalated. The 2018 election was even more shameful. AL has removed the caretaker government protection from the constitution.

   16.22.The main applicant continued his political activism in Australia to the extent possible. JI has a presence in Australia and he made connections with the 100 or so members. Many of the JI leaders in Bangladesh are in jail, so there is limited opportunity to contact them. His role here from 2013 was as [Organisational role] to JI in Bangladesh, working internationally, always in the hope of securing fair elections in 2023. There is also an AL presence in Australia, however very different from Europe, they appear to be respectful of Australian law and have no caused him any problems.

   16.23.Up until 2013 or 2014, the main applicant had been active on social media posting political writing and messages regularly, however he closed his accounts after the passage of the Digital Security Act in Bangladesh as many government opponents had been arrested pursuant to its powers.

   16.24.In 2017, the main applicant applied for a medical treatment visa because he needed surgery for blocked arteries in his [body part]. As the political situation in Bangladesh was worsening and becoming less viable for the main applicant and his family to return, he decided to withdraw his medical treatment application and lodge a protection visa application in February 2018.

   16.25.The Tribunal referred to the English translations of the various court and charge documents dated December 2015, June 2016, January and July 2017, and 2019 provided by the main applicant to the Tribunal and the main applicant’s written responses to the Tribunal’s letter sent after the first hearing date. The Tribunal also noted the statement dated 12 November 2019 given by the main applicant’s lawyer explaining the court matters and charges against the main applicant. The main applicant reiterated that the documents were genuine, however the charges and allegations against him have been instigated and fabricated by AL. He is in contact with his lawyer regularly; he last spoke to him about a month ago. His lawyer can only keep monitoring these matters. At this stage, no determinations have been made by the court against the main applicant, however at any point they can be used against him, in particular if he were to return to Bangladesh.

   16.26.The main applicant has an apartment in Dhaka that is currently occupied, but not leased. It is very hard to sell property if you are not there. He hopes that if the government changes, he can regain his share of [Company 1], however until then there is no prospect.

   16.27.The Tribunal referred to a journal article that stated JI’s official registration was revoked through a High Court judgment in 2013 effectively banning it from participating in any form of electoral politics. The Tribunal also referred to an online news article in Prothom Alo reporting that while JI has not been visible in national politics for a long time, it is still a member of the BNP-led 20-party alliance, and whilst relations with BNP are currently strained, the party is working on the formation of village-based committees and forging a greater unity with BNP for the sake of free and credible elections and the fall of the AL government. The main applicant agreed with this assessment.

   16.28.The main applicant continues as an active member of JI. As confirmed in the letter from [Mr F], he has been appointed a member of [a] Committee from 2023 to 2025. The Bangladesh national elections are due in November 2023, however it can’t be predicted what AL will do. JI and BNP are both in favour of a caretaker government as a protection against the electoral shams on 2014 and 2018. JI relations with BNP are not currently strong because many JI leaders are in jail, which limits opportunities for united campaigns.

   16.29.The main applicant believes that if he returns to Bangladesh, he will be arrested at the airport as he is sure to be on a list due to the outstanding charges and allegations against him. From there, he fears torture, serious harm and disablement or death. There is no prospect that his matters would be properly dealt with through the courts.

   16.30.The main applicant is in regular contact with his eldest brother in Dhaka who has spoken to him about the dangers of returning to Bangladesh. Whilst all brothers were involved in ICS at school, it is only the main applicant who has committed his career and life to JI party politics and activism.

   16.31.The main applicant’s eldest son has qualified and is working as [an Occupation 3], and his other son, as [an Occupation 4]. His daughter is about to commence studying [Subject 2]. His wife works in the [specified] sector having gained certificate and diploma qualifications. He seeks the safety and peace of Australia that is not available to him and his family in Bangladesh.

   Other witness evidence

3. The main applicant’s wife spoke of her own fears of her husband being arrested, tortured and killed if they return to Bangladesh, and being powerless to protect him. She expressed desperation at the prospect of having to return and live there without her husband, unable to get a job herself, unable to educate her daughter, and unable to survive.

4. The main applicant’s eldest son spoke of his parents always protecting him from the reality of what his father faced in Bangladesh, but always being conscious of a sense of fear and danger. This was particularly obvious to him when he lived in Bangladesh with parents from ages [age] to [age]. He fears what will come of them if they return to Bangladesh and his inability to help them. He has now permanent residency status in Australia.

   Representative’s submission

5. The applicants’ representative spoke to the country information submitted to the Tribunal, highlighting the complexity of the political environment in Bangladesh and the brutality of the AL government.

   Relevant country information

6. The Department of Home Affairs Common Claims Bangladesh dated 23 December 2022 reports that:

   20.1.The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties, using security forces to prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections. Social organisations that are close to the government are allowed to operate freely whereas those organisations which are associated with the opposition parties are prevented from implementing programs that are critical of the government. Police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances, torture and extra-judicial killings occur. It is estimated that 610 persons have disappeared since the AL came to office in 2009. While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found.

   20.2.Mass arrests of opposition members are also used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters – both BNP and JI – are not uncommon, and appear to be used as tools of intimidation against political opposition groups.256 Arrests often occur in the context of demonstrations. In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations.258 Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections. More than 4,500 BNP members were arrested on ‘trumped-up charges’. Mass arrests have also been used to suppress demonstrations by workers in the garment manufacturing industry. In its April to June 2021 report, Odhikar states that police arrested and detained 1230 opposition leaders and activists, including members of Hefazat-e-Islam, and another 53 leaders and activists of the Bangladesh Students, Youth and Labor Rights Council were also arrested and taken into remand through court, for holding rallies against Indian PM Modi’s arrival in Bangladesh.

   20.3.The AL uses the courts and legal processes to suppress opponents. Fictitious charges are often laid against AL opponents. Trumped-up charges relating to corruption, publishing ‘false information’, pornography, instigating violence and vandalism are frequently used against political opponents. The Anti-Corruption Commission established in 2004 has targeted opposition parties, bureaucrats and officials and avoided investigating and persecuting ruling-party politicians accused of corruption. The ACC filed 262 cases in 2019, with submission of 267 charge sheets to various courts, but the conviction rate on cases stood at 63%, and these cases did not involve high-profile politicians or public officials. Between 2014 and until mid-2018, the Hasina government filed an estimated 78,000 cases against the entire rank and file of the BNP, which party leaders claim left some 1.8 million BNP workers and office-bearers charged, arrested or forced into exile. The Economist places the number of targeted BNP workers even higher, stating that lawsuits entangled some 2.5 million party workers in endless litigation. Opposition leader Khaleda Zia was convicted on corruption charges in February 2018 and imprisoned. 269 Zia has been accused in a total of 37 cases, convicted in two (Zia Orphanage and Zia Charitable) cases, and is on bail for the remaining 35 cases. In March 2020, Khaleda Zia was granted a suspended jail sentence on the condition that she cannot travel abroad, as she still has more than two dozen other charges filed against her in recent years by the government. This was again extended in March 2022. Zia’s self-exiled son, Tarique Rahman, was given a life sentence in absentia in October 2018, for involvement in a 2004 assassination attempt on Sheikh Hasina. On 3 July 2020, the court sentenced nine men to death and 25 men to life imprisonment, who were all BNP members, for a 1994 attack on a train carrying Prime Minister Sheikh Hasina, who was at the time the leader of the opposition party.

   20.4.Political confrontation and clashes between the AL and the BNP may be increasing and national elections are scheduled to be held in December 2023.  According to BNP spokesperson Sairul Kabir Khan, since 22 August 2022 police had charged at least 4,081 named party supporters and leaders in what he called trumped-up or “fake” charges related to the violence, and another 20,000 unidentified BNP supporters had also been charged. On 12 November 2022 police arrested 32 leaders and activists of the BNP and its affiliate organisations in Dhaka’s Mohakhali who were implicated in cases involving attacks on law enforcement and terrorism. 276 Human Rights Watch stated that mass arrests and police raids of opposition party members’ homes raise serious concerns about violence and intimidation ahead of the upcoming parliamentary elections. The seven rallies held in major cities to November were peaceful, despite facing disruption as the AL government shut down public transport. One casualty occurred at the 10 December protest rally. There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019, 2020 and 2021.

   20.5.Ordinary members of JI face a low risk of politically motivated violence, though may be harassed or arrested by authorities. In September 2020, six JI leaders were who had been accused of damaging the portrait of the founder of Bangladesh, Sheikh Mujibur Rahman, were jailed. On 3 May 2021, police arrested eight leaders and activists of Jamaat-e-Islami (JI) and Islami Chhatra Shibir in Jhikra area of Ullapara under Sirajganj district for holding a secret meeting with the intention of creating sabotage in the area. On 19 May 2021, police arrested 17 and 24 JI leaders and activists in Natore and Kushtia respectively when they carried out the procession to protest Israeli’s actions in Palestine. On 16 May 2022, 49 suspected Jamaat-e-Islami leaders and activists were detained during a secret meeting in city's Terry Bazar area. On 19 October 2022 a Jhenaidah District Judge Court sentenced a local Jamaat-e-Islami leader Muabia Hossain, who was arrested on 22 February 2016, to 17 years in jail in a case filed under the Arms Control Act. 287 In general, according to DFAT, members and supporters of JI who do not keep a low profile would be subject to attention from authorities and thus experience a moderate risk of official discrimination.

   20.6.Authorities and non-State actors continue to target journalists and citizens. Authorities continue to suppress those that disagree with or are critical of the ruling Awami League. The government penalises media that are critical of its policies or voice the opposition parties’ activities and messages. The government may restrict speech deemed to be against the security of the state, against friendly relations with foreign states, and against public order, decency, or morality; or which constitutes contempt of court, defamation, or incitement to an offense. Authorities continue to use laws such as the Digital Security Act to arrest and imprison critics of government members, their families or people for even ‘liking’ critical posts on Facebook. Journalists who criticised unfair trials have faced contempt of court allegations, detention and enforced disappearances. Members and supporters of the political opposition, journalists, prominent members of civil society, as well as students, and school children have been targeted. In 2021, one journalist was killed, 43 injured, 26 assaulted, 30 attacked, 14 threatened, seven arrested, one abducted, and 10 sued for carrying out their professional duty.

   20.7.Bangladesh retains the death penalty. Crimes for which the death penalty may be imposed include murder, terrorism, sedition, espionage, treason, rape, kidnapping and drug trafficking. During 2019, the courts handed down the death penalty for a variety of crimes that ranged from: an attack on the Prime Minister Sheikh Hasina, the 2016 Holey Artisan café terrorist attack and murder committed by the banned militant outfit JMB. In 2019, Bangladesh resumed execution after a one year hiatus and two persons were executed on separate murder cases. In 2021 there were in excess of 181 death sentences recorded. In October 2020, a Bangladeshi court issued the death penalty for the first time to five convicts in a rape case after country-wide protests following circulation of a video footage of gang rape in the social media. There were 2000 people on death row in June 2021.

   20.8.Those caught within the ambit of Bangladesh’s security agencies are at risk of torture. Credible sources report that security agencies including RAB, intelligence services and police, employ torture and other cruel, inhuman, or degrading treatment or punishment. Security agencies use torture to gather information from alleged militants and members of political opposition parties. Law enforcement agencies routinely use both physical and psychological torture as a tool of interrogation or punishment. Eight persons were tortured to death in 2021, 19 in 2020, 6 in 2019 and 2018, and 13 in 2017. Poor enforcement of the Torture and Custodial Death (prevention) Act of 2013 combined with a lack of public awareness and fear among the victims of torture have led to few official complaints lodged under the Act. However, in September 2020, in a first known judgement passed under the 2013 Act, three police officers were given life sentences and also fined on charges of torture causing death in custody.

   20.9.Corruption is widespread within Bangladesh Police. The police force is regarded as the most corrupt branch and it shares a close nexus with the government. Many innocent people have been arrested and sent to jail due to corruption and impunity of members of law enforcement agencies. Anti-corruption legislation is inadequately enforced, corruption is endemic in the judicial system, police and public services, and prosecutions for corruption are rare. The government has claimed that the people’s confidence and trust in police have improved significantly and that the police has made progress in developing a more ‘people-friendly image’ especially during the COVID-19 pandemic. A Transparency International Bangladesh survey for the period December 2020 to November 2021 found about 74% of households surveyed had experienced corruption by law enforcement agencies.

   20.10.Courts are compromised by political interference. The law provides for an independent judiciary, but political interference compromise its independence. Separation between the executive and the judiciary has eroded significantly as the government has expanded its control over the lower courts in spite of rules on the separation of the two institutional branches of the state. In 2017, the Chief Justice of the Supreme Court retired, leaving the country and writing in an autobiography published in September 2018 that he had been forced to retire after threats from Bangladeshi military intelligence because of rulings he had made against the government. The government claimed that allegations of corruption rather than the government’s attempt to amend the constitution which reportedly would weaken the independence of the judiciary had resulted in the judge’s resignation. In March 2020, a district and sessions judge who had passed jail sentence against a former AL Member of Parliament and his wife on corruption charges was removed. Allegations of political pressure on judges are common, as are allegations that unqualified AL loyalists were being appointed to court positions. Alleged interference involves judicial appointments and judges referring to political matters in making decisions, and the problem is worse in the lower courts than the higher courts.

   20.11.Extremely poor prison conditions and overcrowding threaten life and welfare of prisoners. In Bangladesh’s prison system, conditions are harsh and at times life-threatening due to overcrowding, inadequate facilities, and lack of proper sanitation. There is also a strong prevalence of corruption involving bribery and irregularity in the prison system that are known to the authorities. A leading contributor to overcrowding is the large number of pre-trial detainees that make up over 80 percent of prisoners. According to the World Prison Brief, Bangladesh had 83,107 prisoners across 68 prisons in March 2021, of whom 81 per cent were on remand, and 3.9 per cent were female. Although Dhaka’s central jail had facilities for those with mental disabilities, not all detention facilities had such facilities, nor are they required by law. Shortage of doctors and lack of medical facilities in prison have led to prisoners not receiving proper treatment and dying in prisons, 72 deaths reported in 2021, 69 of these died due to illness. There were 81, 76, 60 and 81 deaths recorded in 2021, 2020, 2019 and 2018 respectively. Overcrowding in prisons can increase the threat for the spread of COVID-19 virus. After the first case of the spread of the COVID-19 virus in the prison system was reported in April 2020, the government released 2,884 convicted prisoners who had been jailed for minor offences and were serving short sentences.

1. The Department of Foreign Affairs and Trade Country Information Report Bangladesh dated 30 November 2022 reports that:

   21.1.Jamaat-e-Islami (JI) is an Islamist political party that supported the Pakistani army during the independence war in 1971. JI was banned from participation in the 2014 election based on its anti-secular views. Its members contested a small number of seats in the 2018 election under the banner of the Jatiya Oikya Front, which also included the BNP. While officially de-registered as a political party, JI remains in an alliance with the BNP. But media reports in October 2021 suggested that the BNP was reconsidering the alliance with senior leaders pointing to ideological differences. DFAT understands discussions about the relationship between BNP and the Jatiya Oikya Front are ongoing.

   21.2.Generally speaking, journalists are reluctant to report on the party and this limits the amount of information that is publicly available. People who are perceived as being supporters of JI claim that they have been followed or intimidated by people they allege to be connected to the government, including when overseas, and sources told DFAT that sometimes affiliation with JI is used as a slur.

   21.3.JI followers generally keep a low profile and they do not campaign actively or publicly, but DFAT understands that they are able to recruit new members, albeit in a clandestine manner through personal connections. The size of the party has shrunk in recent years and many former members instead joined other parties, including the AL, though some have joined other Islamist movements, which may or may not be similar. DFAT understands that the party is still well-organised and has some influence in political circles, even if it is not widely discussed in media. Supporters of JI strongly link their religious and political identities, which often results in very strong personal, grassroots support.

   21.4.Members and supporters of JI keep a low profile. Those who do not keep a low profile would be subject to attention from authorities and thus experience a moderate risk of official discrimination. DFAT is not aware of societal discrimination against JI members (in fact, their broadly conservative Islamist views are often popular in their home communities) but, as with members of the BNP, members of JI may experience fewer employment and business opportunities due to the underground nature of their personal and professional networks.

2. Academic Dictionaries and Encyclopedias includes the following in its entry relating to the [Organisation 1]:

   [Entry redacted].

3. The following article titled ‘Jamaat-e-Islami forming village-based committees’ was published in the Bangladesh daily newspaper, Protham Alo, on 19 April 2022:

   Although Jamaat-e-Islami has had no visible activities in national politics for a long time, the party is working on the formation of village-based committees.

   Party sources say they are lying low due to 'adverse circumstances'.

   Rather than any open activities, they are more focused on increasing their organisational strength.

   Speaking to several leaders at a policy making level within Jamaat-e-Islami, it was learnt that while they may remain silent in the field, they are keeping a watch on the country's political developments.

   They said that BNP for long has been trying to mobilise a greater political unity for the sake of free and credible elections in the country. In this regard if the opposition parties forge a greater unity and take up any new strategies or programmes, Jamaat will play an active role in this.

   Jamaat's relations with BNP are rather strained at the moment. Communication between the two parties are not as strong as before, even though Jamaat is still a member of the BNP-led 20-party alliance.

   There are, however, discussions between the two parties about the election-centered movement in the offing and how the relations between the parties will be during the election.

   Jamaat leaders say that the aim of Jamaat and BNP is the same -- the fall of this government. To this end, if the opposition alliance grows bigger, or if the 20-party alliance and the Jatiya Oikya Front are deactivated and a decision is taken for a simultaneous movement by all parties, then Jamaat will lend its full support. In other words, they are agreeable on principle with any strategy or programme of the opposition parties to push forward the demand for elections under a neutral government.

   Speaking to Prothom Alo, Jamaat-e-Islami's naib-e-amir Syed Abdullah Mohammad Taher said, it is certain that there will be a movement. But how this will take place and under what process, is a matter of strategy. The 20-party alliance may be expanded or there may even be a simultaneous movement. As a party, Jamaat is ready to take up any programme or strategy.

   Jamaat's assessment of the coming election is that Bangladesh no longer has the strength to bear another national election as that of 2014 or 2018. The leaders feel that in the local and national context, the next parliamentary election must be free, fair and neutral. After all, the country's future depends on this election. The next election will also determine the future of ruling Awami League and opposition BNP and Jamaat.

   Jamaat leaders' observation is that if Awami League is defeated in the next election, it will have to face stern repercussions for its 'governance'. On the other hand, this election will be a lot like the last battle for BNP. Given the age of BNP's senior leaders, after this election they will be on the shelf. It is the same with Jamaat. For Jamaat, which lost its top leaders due to crimes against humanity in 1971, this election is a fight for existence. Taking all these matters into consideration, the party's leadership is concentrating on shaping up the organisation all over the country. Amidst all of this, Jamaat has been regularly issuing press releases and even staging sudden processions now and then over various issues in the capital city.

   A member of Jamaat's central executive council told Prothom Alo, "Around 80 to 90 per cent of our work is internal, that is, organisational work or expanding the organisation. That is why even when there is no politics in the country, we have no problem with organisational tasks. We are now forming village-based committees."

   While the party is ready to play a role in any strategy or programme of the opposition parties in the future, the plans of BNP's policymakers regarding the party is not clear. There are differences within BNP over taking Jamaat alongside in a united movement and in the elections. There have even been news reports that the party has responded negatively to Jamaat being included in a unified movement.

   BNP secretary Mirza Fakhrul Islam Alamgir, however, has rejected reports that Jamaat's inclusion in a unified movement has been refused. He told Prothom Alo, the situation is taking a turn towards a simultaneous movement. Talks are on with political parties in this regard and nothing has been finalised.

   A section of BNP leaders at the policymaking level, though, want to distance the party from Jamaat right now. They are even speaking openly to the media about this. They feel Jamaat's negative image pitches BNP into controversy too in the outside world. Now is the right time to part ways. But another section of the party is unwilling to lose Jamaat right now due to vote calculations.

   Syed Abdullah Mohammed Taher, speaking to Prothom Alo, said, "Everyone has joined their alliance out of their own interests. But the things BNP leaders say about the alliance member Jamaat, is insulting. Perhaps it is not unbefitting in their party culture. But we will not play any part in breaking the alliance or moving away from it. That is clear."

   Speaking to several BNP leaders at a policymaking level, it was learnt that they are placing importance on a simultaneous movement based in understanding with like-minded parties rather than dropping any party from an anti-government large alliance. After all, everyone has the same basic target, and that is the fall of this government.

   BNP standing committee member Amir Khasru Mahmud Chowdhury, speaking to Prothom Alo, said, work regarding a unity is underway and discussions are being held with everyone. Everyone is in consensus about the fall of this government and holding elections under a neutral government. Everyone will start a movement simultaneously from their respective positions and action will be taken as needed as the movement proceeds.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal considers the main applicant’s oral and documentary evidence comprehensive, consistent and credible.

5. In particular, and directly related to the main applicant’s claims for protection, the Tribunal accepts:

   25.1.The main applicant is a citizen of Bangladesh.

   25.2.The other applicants are citizens of Bangladesh and are the main applicant’s wife, dependent son aged [age], and dependent daughter aged [age].

   25.3.The main applicant joined Islami Chatra Shibid, the student wing of the Jamaat-e-Islami (JI) party during high school in Bangladesh, and later became a member of JI holding various leadership positions in the party over nearly [Number] decades, including roles with the [Organisation 1], and his ongoing role conducted from Australia.

   25.4.The main applicant was targeted with threats and financial and physical harm by JI and Bangladesh Nationalist Party (BNP) opponents and ruling party, Awami League (AL) affiliates for his JI profile and related political activities while he was in [Country 2], [Country 3] and Bangladesh.

   25.5.The main applicant and his wife made formal complaints to police in Bangladesh in 2008 and 2013 in relation to targeted threats of harm from suspected AL affiliates, and the police failed to investigate or respond.

   25.6.The main applicant’s written explanation given in response to the Tribunal’s s 424A letter and the November 2019 statement by the main applicant’s Bangladeshi lawyer in relation to the various outstanding criminal charges and allegations against the main applicant in Bangladesh.

   25.7.There are various outstanding criminal charges and allegations against the main applicant in Bangladesh likely to have been fabricated by AL affiliates by reason of his JI profile and related political activities.

   25.8.The country information submitted by the main applicant.

   25.9.The main applicant fears that if he returns to Bangladesh, he will be arrested by police on the basis of the fabricated outstanding criminal charges and allegations against him, denied a fair trial, and subsequently tortured or killed by AL affiliates for his JI profile and related political activities.

6. The Tribunal considers that:

   26.1.The main applicant has a significant political profile due to his longstanding JI affiliation and related political activities and is highly likely to continue to maintain his profile and political activities if he returns to Bangladesh, and is therefore highly likely to attract high levels of adverse attention from the AL affiliates and AL-controlled authorities in Bangladesh.

   26.2.It is reasonable the main applicant did not seek protection in [Country 2] or [Country 3].

   26.3.It is reasonable the main applicant did not seek protection in Australia until he became aware that he was disqualified from renewing his [visa] and recognised that the political situation in Bangladesh was becoming increasingly dangerous for him and his family due to his JI profile and related political activities.

   26.4.It is not reasonable to conclude that the main applicant’s oral and documentary evidence relating to their complaints to police, outstanding criminal charges and allegations against him, his position in JI, or his financial involvement with [Company 1] is not authentic or reliable based on the fact that the Tribunal has been unable through its own inquiries to locate any specific corroborative information.

   26.5.Relevant country information supports the credibility of the main applicant’s claims of fabricated criminal charges and allegations against him.

   26.6.Relevant country information, including that submitted by the main applicant to the Tribunal, supports the claims of continuing politically motivated violence in Bangladesh between the major opposing parties, AL and BNP, and their affiliates since the 2006-2008 caretaker government followed by AL coming to power in early 2009, and escalating in the lead up to the general elections in 2014 and 2018, and again currently in the lead up to the general election due in late 2023.

   26.7.It is highly likely JI will play a key role in garnering political support against the ruling party, AL, in the lead up to the general election in late 2023, including through its alliance with BNP.

   26.8.It is highly likely the main applicant’s JI profile and related political activities continue to be well known and monitored by AL affiliates and AL-controlled authorities in Bangladesh.

   26.9.It is reasonably foreseeable that if the main applicant returns to Bangladesh he would be targeted and harmed by ruling party AL affiliates and AL-controlled authorities for his JI profile and related political activities, and on the basis of the fabricated outstanding criminal charges and allegations against him, including arrest, denial of fair trial, financial harm, jail, torture, enforced disappearance or killing.

   26.10.Given that the source of targeting and harm would be the ruling party AL affiliates and AL-controlled authorities, it is highly unlikely protection would be available to the main applicant in Bangladesh.

   26.11.Given that the main applicant’s JI profile and related political activities have never been confined to a particular part of Bangladesh and that JI’s activities are nationwide, it is not reasonable for the main applicant to seek safety by relocating to another area of Bangladesh.

   26.12.The main applicant’s JI profile and related political activities while in Australia are consistent with his long-term political engagement prior to coming to Australia and therefore are not considered conduct engaged in for the purpose of strengthening his protection claims.

   Other considerations

7. In considering the claims and evidence, the Tribunal has also taken account of:

   27.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

   27.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.

   Application of law

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

9. Based on the findings of fact:

   29.1.The main applicant is a non-citizen in Australia.

   29.2.The other applicants are non-citizens in Australia and are members of the same family unit as the main applicant.

   29.3.The main applicant is known in Bangladesh by ruling party AL affiliates and AL-controlled authorities for his JI profile and related political activities.

   29.4.The main applicant fears being persecuted in Bangladesh by ruling party AL affiliates and AL-controlled authorities for his political opinion, as evidenced by his JI profile and related political activities.

   29.5.There is a real chance that, if the main applicant returned to Bangladesh, he would be persecuted by ruling party AL affiliates and AL-controlled authorities for his political opinion.

   29.6.The persecution would involve serious harm to the main applicant.

   29.7.The real chance of persecution relates to all areas of Bangladesh.

   29.8.There are no effective protection measures available to the main applicant in Bangladesh.

   29.9.The main applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Bangladesh.

   29.10.The main applicant has a well-founded fear of persecution as defined in s 5J of the Act.

   29.11.The main applicant is outside Bangladesh, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Bangladesh.

   29.12.The main applicant does not have a right to enter and reside in, temporarily or permanently, any country other than Bangladesh.

   CONCLUSIONS

10. The Tribunal is satisfied that the main applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

11. Having concluded that the main applicant satisfies the criteria in s 36(2)(a) of the Act, accordingly, the other applicants satisfy the criterion in s 36(2)(b) of the Act.

    decision

12. The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act and the other applicants satisfy s 36(2)(b) of the Act.

    Kate Chapple
    Member

    
    
    

    ATTACHMENT A

    Summary of applicable law

    The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

    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.

    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).

    Relevant extracts 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.