2100385 (Refugee)
[2024] AATA 3974
•10 July 2024
2100385 (Refugee) [2024] AATA 3974 (10 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Mahalingam Sutharshan (MARN 0961664)
CASE NUMBER: 2100385
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Peter Papadopoulos
DATE:10 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.
Statement made on 10 July 2024 at 11:31am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Court remittal – imputed political opinion – particular social group – family association with Jamaat-e-Islami – failed asylum seeker – physical assault – extortion – fear of killing – disappearance of the applicant’s brother – social media activity – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48, 65, 91, 423, 424A, 438, 499
Migration Regulations 1994, Schedule 2; rr 1.12, 2.08CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is [an age]-year-old male who claims to be a citizen of Bangladesh. He arrived in Australia [in] May 2013 as an illegal maritime arrival. He applied for a Protection (Class XA) visa on 11 June 2014. The delegate refused to grant the visa on 27 January 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of reg 2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.
The applicant sought review of the delegate’s decision with the Refugee Review Tribunal on 16 February 2015. On 1 July 2015, the Refugee Review Tribunal merged with the Administrative Appeals Tribunal (the Tribunal) and the applicant’s review application was to be determined by the Tribunal on and from 1 July 2015. On 5 August 2016, the Tribunal, differently constituted (the first Tribunal), set aside the delegate’s decision with the direction that it be substituted with a refusal to grant a Temporary Protection (Class XD) visa. As had been properly explained in the first Tribunal’s decision, by operation of s 45AA of the Act and reg 2.08F of the Regulations, from 16 December 2014 the applicant’s Protection (Class XA) visa application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application on the understanding that it was an application for a Protection (Class XA) visa, the effect of reg 2.08F is such that the application must be considered an application for a Temporary Protection (Class XD) visa.
[In] September 2016, the applicant filed an application for review of the first Tribunal’s decision at the Federal Circuit Court of Australia. [In] February 2019, the Federal Circuit Court delivered its judgment[1] in which it dismissed the applicant’s judicial review application. Four grounds of review were pressed by the applicant as part of this proceeding until hearing, all of which the court ultimately found had not been made out.
[1] [Citation deleted.]
[In] March 2019, the applicant filed a notice of appeal in the Federal Court of Australia. [In] December 2020, the Federal Court delivered its judgment[2] in which it allowed the appeal. The Federal Court held that jurisdictional error had been established where the first Tribunal failed to adequately and appropriately assess whether it was reasonable in the applicant’s circumstances to relocate within Bangladesh. The Federal Court ordered that the decisions of the Federal Circuit Court and the first Tribunal be set aside and the matter be remitted to the Tribunal to be determined in accordance with law. This is that reconsideration.
[2] [Citation deleted.]
The applicant was represented in relation to the review before this Tribunal by a registered migration agent, Mr Mahalingam Sutharshan (MARN 0961664).
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out below.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside and substituted with a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. A applicant for the visa must meet one of the alternative criteria in s 36(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
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).
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.
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. There are four key elements to the Convention definition.
First, an applicant must be outside his or her country.
Secondly, 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)). A non-exhaustive list of instances of ‘serious harm’ is provided in s 91R(2) of the Act, including:
· a threat to the person’s life or liberty;
· significant physical harassment of the person;
· significant physical ill-treatment of the person;
· significant economic hardship that threatens the person’s capacity to subsist; and
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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.
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.
Thirdly, 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.
Fourthly, 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.
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.
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
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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: s 36(2)(aa) of the Act (the complementary protection criterion).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1) of the Act. 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 s 5(1) of the Act.
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: s 36(2B) of the Act.
Mandatory considerations
In accordance with Direction no. 84 – Consideration of Protection visa applications, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
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 s 36(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 spouses, de facto partners and dependent children.
CLAIMS AND EVIDENCE PROVIDED TO THE DEPARTMENT
Illegal Maritime Arrival & Induction Interview
[In] May 2013, the applicant arrived in Australia as an illegal maritime arrival.
The applicant attended an Illegal Maritime Arrival & Induction Interview (entry interview) conducted by Departmental interviewing officers at the [named] Detention Centre. The first part of the entry interview was conducted on 29 May 2013. The second part of the entry interview was conducted on 7 July 2013. The entry interview was conducted with the assistance of an interpreter in the Bengali and English languages.
According to the entry interview record, the applicant gave the following reasons as to why he left Bangladesh and feared returning to Bangladesh:
· He had not been involved in Bangladeshi politics.
· His [brother] [Brother A] was involved in politics with Jamaat and was killed as a result of that involvement. [Brother A] also had a shop and some ‘terrorist groups’ that asked [Brother A] for donations which [Brother A] did not pay. [Brother A] was killed in 2002 by [Mr A], a supporter of the Awami League.
· He objected to these people killing [Brother A]. He contacted a lawyer but didn’t get justice. He also tried to attack the person who killed [Brother A] but was outnumbered. These people then came looking for him at his home and threatened to kill him. His [uncle] hid him in some other place so that he would not be harmed.
· His [uncle] paid [amount] taka to an agent to facilitate the applicant’s travel to Australia by boat.
· If he goes back to Bangladesh, he fears that he will be killed by the people who killed his [brother] who he had stood up against.
The Tribunal has listened to a copy of the recording of the entry interview and refers to it, where relevant, in the findings and reasons below. However, it is clear from the Tribunal’s review of the recording that the entry interview record is not an entirely accurate or complete account of the applicant’s claims presented during the interview because:
· The applicant did not specifically tell the interviewing officer on 29 May 2013 that he had not been involved in Bangladeshi politics.
· The applicant told the interviewing officer on 29 May 2013 that:
o his [brother] was killed in 2012 (rather than 2002);
o a terrorist group (rather than groups) had asked his [brother] for donations;
o [larger amount] taka (rather than [first amount] taka) was paid by the applicant’s [uncle] to the agent to facilitate the applicant’s travel to Australia by boat.
· The applicant told the interviewing officer on 29 May 2013 that [Brother A] was killed at his shop (a detail that was omitted from the entry interview record).
· The applicant told the interviewing officer on 7 July 2013 that he lived at his uncle’s address for about 10 to 15 days before he departed Bangladesh (a detail that was omitted from the entry interview record).
The Tribunal has taken these matters into account in its overall assessment of the applicant’s claims and relies upon the recording as the basis of what transpired at the entry interview.
Protection visa application
Protection visa application form signed 8 June 2014
According to information contained in the applicant’s protection visa application form that was signed by the applicant on 8 June 2014, the applicant:
· is a Bangladeshi national, who was born in [Town 1], Dhaka District, Dhaka Division, Bangladesh.
· has (or had) the following immediate family members:
ohis father, [Father A], born approximately in [specified year];
ohis mother, [Mother A], born approximately in [year];
ohis [brother], [Brother A], born approximately in [year], deceased 2012 ([Brother A]);
ohis [brother], [Brother B], born approximately in [year], missing since 2014 ([Brother B]);
ohis [brother], [Brother C], born approximately in [year];
ohis [sibling], [Sibling A], born approximately in [year];
ohis [sister], [Sister A], born approximately in [year]; and
ohis [sister], [Sister B], born approximately in [year].
Statutory declaration of 8 June 2014
In a statutory declaration made by the applicant on 8 June 2014 and appended to his protection visa application form, the applicant raised the following claims:
· The applicant was raised in a traditional Islamic family, who are followers and members of Jamaat-e-Islami (Jamaat) which is the largest Islamic party in Bangladesh.
· His brother, [Brother A], was the most active member of his family within politics, and became well known within the applicant’s local community as a Jamaat activist.
· In or around May or June 2012, key members of Jamaat were arrested and charged with war crimes by an Awami League (AL) tribunal. Subsequently, Jamaat members protested throughout Bangladesh. [Brother A] played a key role in organising rallies and demonstrations. The applicant often attended these rallies and demonstrations with [Brother A] ‘to assist in canvassing support for Jamaat’.
· In or around August 2012, members of the AL appeared at his brother [Brother A’s] [business 1], and demanded 10 lakh taka from his family because of his family’s support of Jamaat. The applicant was present at the [business 1] when this demand was made. He and his brother refused to pay the amount. The AL members became angry and told the applicant and his brother that they would pay with their lives.
· In or around September 2012, [Brother A] organised a meeting for Jamaat members to tackle the AL’s treatment of Jamaat members. The applicant attended the meeting, and witnessed the meeting being attacked by a large group of AL members with weapons including guns. The AL group was led by [Mr A]. Bullets were fired into the crowd by AL members. [Brother A] was ‘shot during the conflict and died of his injuries’. The applicant was also injured in the melee and ‘attended a local clinic for one week’.
· Following the applicant’s release from the clinic, he went with his [uncle] to the police to lodge a case against the AL, in particular their leader [Mr A]. The applicant was told by the police not to pursue the matter, and the police indicated they would not act to arrest the AL members. Nevertheless, the applicant and his uncle filed the complaint. The applicant also approached lawyers to assist in bringing [Mr A] to justice but these lawyers declined to assist, either because such actions would be ‘unfruitful’ or because they feared [Mr A] would also ‘cause them problems’.
· In or around late November 2012, the applicant was at [Brother A’s] [business 1] for which he was now responsible. The applicant saw AL members approaching the [business 1], and attempted to run but he was chased down and assaulted. The applicant was beaten, and [amount] taka was stolen from the [business 1]. The AL members told the applicant to withdraw his police complaint against them and [Mr A] immediately or continue to face harm.
· Following this incident, the applicant relocated to his uncle’s home in Mirpur, Dhaka District, Dhaka Division, Bangladesh, where he thought he would be able to hide. He did not withdraw the police complaint as he wanted justice for his father.[3]
[3] At his protection visa interview, the applicant varied this claim by stating that he was seeking justice for his [Brother A] rather than his father.
· However, not long after the AL members visited the applicant’s family home, threatening that if the case was not withdrawn, the applicant would be killed. When the applicant’s family were ‘unable to provide’ information about the applicant’s whereabouts to the AL members, the AL members destroyed property at the applicant’s home.
· The applicant feared that this demonstrated the AL could find him throughout Bangladesh. As the applicant did not have a valid passport, he contacted a people smuggler to make arrangements to flee Bangladesh.
· [In] December 2012, the applicant fled Bangladesh by boat from Chittagong.
· Since leaving Bangladesh, the AL members have regularly harassed the applicant’s family seeking his whereabouts and extorting them when they cannot answer. The police case remained pending, and his family also does not want to withdraw it.
· In or around early 2014, the AL assaulted the applicant’s brother [Brother B], indicating to him that he would be harmed unless he gave up the applicant’s whereabouts. Shortly thereafter, [Brother B] went missing and the applicant fears he was abducted by the AL.
Protection visa application interview held on 13 October 2014
The applicant attended an interview with a Departmental officer at the [named] Detention Centre in connection with his protection visa application on 13 October 2014. The interview was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant’s former representative also attended the interview by telephone.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. The Tribunal observes that this interview took over 2 hours and 30 minutes and the applicant stated near the end of the interview that he was satisfied with the quality of the interpreter’s work during the interview. In the Tribunal’s view, the applicant had ample opportunity to present his protection claims and respond to concerns raised by the delegate.
Submission dated 11 November 2014
In a submission dated 11 November 2014, the applicant’s former representative argued that the applicant was a member of two distinct particular social groups – ‘family members of Jamaat supporters’ and ‘persons who have lodged a police complaint against the AL’. It was also argued that a Departmental data breach in February 2014 increased the risk of harm faced by the applicant were he to be returned to Bangladesh.
Supporting documents
The following documents were provided to the Department prior to the protection visa application interview:
· Department Form 866A Persons included in this application and family composition, signed by the applicant on 8 June 2014.
· Department Form 866B Application for a person who wishes to submit their own claims for protection, signed by the applicant on 8 June 2014.
· Statutory declaration made by the applicant on 8 June 2014.
· Department Form 80 Personal particulars for assessment including character assessment, signed by the applicant on 8 June 2014.
· Discharge Certificate, [Hospital 1], for [the applicant], dated [in] September 2012 in which it is stated that the applicant was admitted at 11am on [a day in September] 2012; diagnosed with acute injury with various parts of his body injured; underwent an [operation] (which included stitches and treatment [as] well as treatment for injuries to other body parts) at 11.30am [in September] 2012; discharged [later in] September 2012.
· Discharge Certificate, [Hospital 1], for [name][4] (the applicant’s father), dated [in] September 2012 in which it is stated that the applicant’s father was admitted at 11am on [a date in] September 2012; diagnosed with acute injury; discharged at 4pm on [the later day in] September 2012.
[4] The applicant’s father’s name is spelt differently across a range of documents before the Tribunal. The Tribunal accepts that this may have arisen out of interpretation and translation difficulties.
· Undated letter (in Bengali) signed by [Official A], [Position 1] of [Branch 1], Bangladesh Jammat-e-Islami.
During the protection visa application interview, the delegate requested the applicant provide the Department with an English translation of the undated letter signed by [Official A]. This was not provided. Further, at interview the applicant showed the delegate a picture with some writing on it and claimed that it depicted his brother who was murdered. This document does not appear on the Departmental file. However, based upon the Tribunal’s review of the protection visa application interview recording, the Tribunal is of the view that the applicant showed the delegate the pdf image of a shirtless man with an apparent head injury which has been bandaged – a document provided to this Tribunal in 2024. The applicant also showed the delegate a copy of a copy of an original birth certificate (in Bengali) which he claimed was his Bangladeshi birth certificate his parents had obtained in Bangladesh and provided to him. The applicant stated that his birth certificate was a genuine document as it had been issued at the post office in his village but had no knowledge of how his parents had obtained that document.
Following the protection visa application interview, and under cover of his former representative’s letter of 11 November 2014, the Department received a copy (and NAATI English translation prepared on 7 November 2014) of a document purporting to be the applicant’s Birth Registration Certificate issued by Bangladeshi authorities. According to the translation, the following information is specified therein – Name: [the applicant]; Birth Registration Number: [Number 1]; Date of Birth: [DOB 1]; Father’s name: [Father A]; Mother’s name: [Mother A].
Also appearing on the Department file is a copy of a laminated Bangladeshi birth certificate (in Bengali). According to an assessment of this document undertaken by a Departmental officer with an interpreter on 9 October 2013, the following information is specified therein - Name: [the applicant’s name variant]; Birth Registration Number: [Number 2]; Date of Birth: [DOB 2]; Father’s name: [Father B]; Mother’s name: [Mother B]. The first name, birth registration number, date of birth and parents’ names differ from the equivalent information specified within the birth certificate provided by the applicant to the Department under cover of his former representative’s letter of 11 November 2014.
Summary of the delegate’s decision
On 27 January 2015, the delegate refused to grant the applicant a protection visa. The delegate accepted the following aspects of the applicant’s claims:
· The applicant’s brother [Brother A] was a member of Jamaat in his local area.
· The applicant was a low-level Jamaat supporter.
· The applicant’s brother [Brother A] was killed due to political violence in a particular attack orchestrated by AL member [Mr A].
· The applicant sought to seek justice for his brother’s death.
· The applicant and his family have been harassed by AL members for attempting to pursue justice for his brother’s death.
· The applicant’s [Brother B] was harassed by the local members of the AL in April 2014 and is missing.
The delegate determined that the applicant was not a refugee on the basis of his:
· real or imputed political opinion because he was a low-level Jamaat supporter in his local area and country information indicated that rank and file members of political parties with a low-level political profile such as his were not targeted by, or of interest to, the authorities;
· membership of a particular social group of family members of Jamaat supporters because there were a large number of Jamaat supporters in Bangladesh and country information did not sufficiently indicate that their family members were targeted for harm or that there was a real chance of the applicant being persecuted on that basis;
· membership of a particular social group of persons who have lodged a police complaint against the AL because there was neither substantial evidence nor country information indicating that such complainants were targeted for harm or that there was a real chance the applicant would face harm as a result of having filed a case against AL members.
The delegate acknowledged the Departmental data breach unintentionally enabled potential access to some personal information about people who were in immigration detention on 31 January 2014. The delegate maintained that the information that was possible to access was the applicant’s name, date of birth, nationality, gender, details about his detention (such as when, where and why (being unlawful)) but noted that no information regarding his protection claims or contact information was accessible. Based on the limited amount of information released, the short window of opportunity to obtain the information and the difficulty in obtaining it, the delegate found that the applicant’s profile was not elevated by the data breach event. Nevertheless, the delegate did consider whether the data breach may cause the applicant to face harm as a result of his illegal departure from Bangladesh being highlighted. Based upon consideration of relevant country information, including the latest DFAT country information report,[5] the delegate found that there was not a real risk the applicant would face significant harm on account of either being a failed asylum seeker or a person who left Bangladesh without a valid passport. The delegate also noted that while the DFAT report indicated that DFAT was not aware of any instances where penalties for leaving Bangladesh other than in accordance with the Emigration Ordinance of 1982 had been imposed, they were satisfied that such punishments arose out of a law of general application that had been created for a legitimate state objective.
[5] DFAT Country Information Report – Bangladesh (20 October 2014)
In relation to assessing the applicant’s claims under the complementary protection criterion, the delegate was satisfied there was a personal feud or dispute with a member of the AL in the applicant’s home village, and that the applicant’s brother was killed in an attack organised by [Mr A] and that as a result of the feud the applicant may face a real risk of significant harm if he were to return to his home village. However, the delegate noted that there was no information to suggest that [Mr A] held any power in other areas of Bangladesh, and that country information suggested political violence in Bangladesh was largely localised in each village. Taking into account that the applicant was a single adult male with no dependents and extensive work experience in [industry 1], the delegate maintained that it was reasonable for him to relocate to Dhaka where his limited level of education would not hinder him from gaining access to employment within that urban centre. The delegate was therefore satisfied that the applicant would be able to relocate within Bangladesh where he could live without a real risk of significant harm. The delegate gave the following additional reasons in support of their relocation finding (footnotes omitted):
I am satisfied that [if] the applicant chose to proceed with a court case on return to Bangladesh he would be able to do so after relocating to another area of Bangladesh, such as Dhaka. I note that the population of Dhaka is 15.391 million and that there is a very low chance that he would be able to be found by an individual from his home village. Whilst the applicant may have to avail himself of those he has had disputes with in a court situation I am satisfied that there would be ample state protection in these instances. As stated above I am satisfied the applicant does not have a well-founded fear of serious harm as a result of his low level political opinion. I am satisfied therefore that he could maintain his low level involvement in politics without fear of significate [sic] harm if he were to relocate within Bangladesh.
CLAIMS AND EVIDENCE PROVIDED TO THE FIRST TRIBUNAL
On 16 February 2015, the applicant lodged an application for review of the delegate’s decision with the first Tribunal.
Pre-hearing material
Statutory declaration of 24 June 2016
In a statutory declaration made by the applicant on 24 June 2016, the applicant reiterated he fears returning to Bangladesh because he will be:
· persecuted on the basis of his political opinion against the government and as a supporter of Jamaat.
· seriously harmed because his brother was a prominent Jamaat member and was killed.
· seriously harmed or killed because he has lodged a police case against the AL members who murdered his brother.
The applicant also raised the following claims and submissions in response to the delegate’s findings:
· He disagrees with the delegate’s finding that he faces no harm as a Jamaat member or for filing a case against AL members.
· He was politically active with Jamaat before [Brother A] was killed. He used to help his brother by attending political gatherings to gain support for the party. He attended Jamaat meetings regularly and he was at the meeting when his brother was killed.
· He was badly beaten and hospitalised after he lodged a case against [Mr A] and the AL. He then moved away from his home village but they found where he was staying in Dhaka.
· The delegate found that his profile would not be elevated by the data breach but he fears that he might be at greater risk of harm if the AL members find out that he has been in Australia for so long. He disagrees that he faces no harm as someone who left the country illegally or as a failed asylum seeker. He maintains that the Bangladeshi police will pick him up at the airport and he will be arrested. When the police find out how and why he left the country, they will tell the authorities and he is sure that [Mr A] and other AL members will find out that he is back in Bangladesh.
· He disagrees with the delegate’s finding that he could relocate to an urban centre, such as Dhaka, to avoid significant harm at the hands of [Mr A] or that the police could protect him in Dhaka. Before he left Bangladesh he was staying at his uncle’s house in Dhaka but [Mr A] found him there. [Mr A] sent AL members to the house. They asked his uncle about him but his uncle said he was not there. They threatened his uncle and said if they see him near his house then they will kill both of them. He was very scared after this and he moved to his uncle’s friend’s house for about four or five days before his uncle organised his journey to Australia. He is sure that [Mr A] will find him if he moves to Dhaka or somewhere else in Bangladesh, noting that [Mr A] was able to find him when he moved to Dhaka last time even though he was hiding and did not leave the house.
· A lawyer in Dhaka helped them lodge the complaint after his [Brother A] was killed. The lawyer has told them the police won’t help them. The police did not help him in the past when he lodged a complaint and he is sure they cannot protect him if he goes back.
· The AL members are continuing to threaten and harass his family and ask them for money and to withdraw the case. They have gone to his family home and asked where he is many times.
· [Mr A] is still the leader of the AL in his area and is very powerful. He has land adjacent to his family’s property and about six months ago he illegally took some of their land. His family are now worse off but did not go to the authorities for help because they are too scared of [Mr A] and have not lodged a police complaint because the police did nothing when he lodged a case against [Mr A].
· His [Brother B] is still missing and they have heard nothing from him for over two years. He fears the AL have abducted and killed [Brother B]. [Brother B] was not involved in politics but he fears [Brother B] was targeted because he refused to tell the AL of his whereabouts.
Submission dated 28 June 2016
In a submission dated 28 June 2016, the applicant’s former representative made the following arguments and submissions in response to a number of the delegate’s findings:
· The delegate’s finding that the applicant would not face harm as the family member of a Jamaat supporter is disputed. Country information indicated that political violence in Bangladesh is widespread.
· It was disputed the applicant could relocate within Bangladesh to an area where he could live without fear. Following the attack on the applicant in November 2012, [Mr A] and AL members were able to find the applicant living in Dhaka at his uncle’s house as claimed in the applicant’s most recent statutory declaration. This demonstrates that the applicant cannot live in Dhaka or elsewhere in Bangladesh to be safe.
· If the applicant returns to Bangladesh, his past involvement with and connections to Jamaat through his brother and family will be as relevant as at the time he fled from Bangladesh. Country information indicates that the High Court of Bangladesh banned Jamaat from participating in national elections in 2013 but the ruling did not extend to limiting other Jamaat activities. Nevertheless, Jamaat has not ceased to exist since the 2013 ruling ‘nor is it a past-presence in Bangladesh politics and society’.
· It was disputed that violence between political parties is related to criminal activities or personal, as opposed to political, vendettas. Country information demonstrates that the ruling AL and its supporters are known to act with impunity and violence. This is not an ‘accepted form of expression’, as noted by the delegate, but rather a government that has used violence to suppress any opposition.
· Country information was referenced detailing the AL’s propensity for political violence throughout Bangladesh and the inefficacy of state protection in Bangladesh.
· It was submitted that relocation is not relevant in the applicant’s circumstances as he fears harm from the ruling AL throughout Bangladesh.
The hearing on 5 July 2016
The applicant appeared before the first Tribunal on 5 July 2016 to give evidence and present arguments. The first Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant’s former representative also attended the hearing. The applicant did not request the Tribunal take any oral evidence from witnesses at the hearing.
The Tribunal has listened to a copy of the recording of the hearing and refers to it, where relevant, in the findings and reasons below.
Post-hearing material
Statutory declaration of 11 July 2016
In a statutory declaration made by the applicant on 11 July 2016, the applicant raised the following post-hearing submissions and claims:
· He was very stressed at the hearing; he is scared of being sent back to Bangladesh and was nervous about the legal proceedings.
· At the time of the hearing it was Ramadan and he was fasting. He had little energy and it was hard to concentrate at the hearing. His throat was dry and he found it hard to answer so many questions. He did not tell the Tribunal that he was feeling this way because he did not think it would be appropriate to bother everyone involved. He hoped that he would be able to cope despite his fasting.
· He became very confused with all the questions about the police complaint because some of the questions asked if he had lodged a police complaint while some asked if there is a legal case before the courts. He has only been to school to [grade] and was not sure if these are different things. He tried to answer the questions as best he could but was getting confused and, as he had not eaten all day, he found it hard to be clear.
· Even though he stated he wanted to proceed with the hearing, an exchange with the interpreter had ‘unruffled’ him and made him anxious.
· He panicked towards the end of the hearing because he thought the Tribunal was doubtful about whether there was a police complaint lodged at all given all the questions that were asked of him. He could not think straight and made a serious error of judgement in that instant by saying that there had been a court case in relation to the complaint that he lodged with the police in Bangladesh following his brother’s death. He said that the court case had taken place in November 2012, that there had been fake witnesses and that the magistrate had set down a new court date. This is not true.
· After the hearing he spoke to his lawyer about clearing up what he said. He is very sorry for creating more confusion and misleading the Tribunal. Upon reflection, he knows he made a mistake. He apologises and very much regrets his action.
· He confirms that his brother was killed at a Jamaat meeting in September 2012. He went to the police to lodge a complaint against [Mr A] and the AL members responsible but the police would not allow him to do this. He went to a lawyer in Dhaka and the lawyer helped him to lodge a complaint against [Mr A] and the AL members.
· He was then attacked by AL members at his brother’s [business 1]. He believes this was in October but has trouble remembering the exact date as these events happened a long time ago. [Mr A] sent AL members to the [business 1] and when he saw them coming he tried to run away but they chased him. They caught up to him, grabbed him and took him back to the [business 1]. They asked him for a huge amount of money which he could not pay so they beat him up and took whatever money was in the cash register.
· About 10 days after the attack at the [business 1] AL members came to his home and told him to withdraw the case that he had lodged against them but he told them he would not. They also demanded that he give them more money but he had nothing to give them. They beat him and his family and they completely ransacked their home. They also threatened to come back if he did not withdraw the police complaint against them.
· Following the incident he fled to his uncle’s house in Dhaka. Shortly after he got there the AL found out where he was. They came to his uncle’s house and asked his uncle about him. They threatened his uncle and said that if they see him anywhere near there they would hurt his uncle as well as him.
· He was very scared after that incident and went to stay with his uncle’s friend for four or five days then came to Australia.
· He was sorry for creating confusion and misleading the Tribunal, accepted that he made an error of judgment and deeply regrets having panicked and trying to embellish his case.
Submission dated 22 July 2016 and supporting documents
In a post-hearing submission dated 22 July 2016, the applicant’s former representative argued that when assessing the applicant’s credibility the Tribunal should take into account his particular circumstances, including his circumstances on the day of the hearing as well as the difficulties of going through the protection visa application process. The circumstances outlined in the applicant’s statutory declaration of 11 July 2016 impacted his ability to understand the questions that were being put to him and to answer them as clearly as possible in the hearing context. Further, the applicant was rattled by his altercation with the interpreter. For this reason, he should receive the benefit of the doubt. His credibility and overall evidence should not be affected by the mistake he made at hearing.
Attached to the submission were the following supporting documents:
· Copy of an undated letter of support, signed by [Official A], [Position 1], Dhaka [Branch 2], Bangladesh Jammat-e-Islami (first Jamaat support letter), along with English translation made by a NAATI-accredited translator whose accreditation expired on 22 April 2016. The representative submitted that the applicant received this letter by email from his family in Bangladesh who obtained it in about 2014 by going to the Jamaat office in Dhaka.
· Copy of an undated letter of support, signed by [Official A], [Position 1], Dhaka [Branch 2], Bangladesh Jammat-e-Islami (second Jamaat support letter), along with English translation made by a NAATI-accredited translator on 21 July 2016. The representative submitted that the applicant received this letter by email on 13 July 2016 from his family in Bangladesh who obtained it by going to the Jamaat office in Dhaka.
CLAIMS AND EVIDENCE PROVIDED TO THIS TRIBUNAL
Following the Federal Court’s remittal of the applicant’s case to this Tribunal, the Tribunal wrote to the applicant on 13 January 2021 confirming that his review application had been so remitted and that his case would be reallocated to a Member.
Pre-hearing material
On 9 August 2023, the Tribunal requested the applicant provide within seven days further information in order to progress his review application. He was asked to complete and return a pre-hearing information form in which he had been invited to provide, among other things, any additional documents to support his case, the details of any witnesses who would provide oral evidence at hearing and information as to whether there are any issues (e.g. a health problem or disability) that might affect his ability to take part in the hearing.
On 11 August 2023, the Tribunal received a completed pre-hearing information form signed by the applicant on 10 August 2023 in which he indicated that:
· he did not want to provide any additional documents to support his case;
· he did not have any witnesses who would provide oral evidence at hearing;
· he did not have any issues (e.g. a health problem or disability) that might affect his ability to take part in the hearing.
Nevertheless, the Tribunal subsequently received considerable material in support of the applicant’s case prior to the hearing held on 20 and 25 March 2024. This material was received by the Tribunal on 8 March 2024 and 13 March 2024.
Furthermore, on 13 February 2024, the Tribunal received a completed Response to hearing invitation form signed by the applicant on 13 February 2024 in which it was indicated that he and [Witness A] would attend the hearing, that they would need an interpreter during the hearing and that there was not any issue that might affect his or [Witness A’s] ability to participate in the hearing such as a health problem or disability.
Statutory declaration of 24 January 2024 and supporting documents
On 8 March 2024, the representative provided the Tribunal with a statutory declaration made by the applicant on 24 January 2024 along with a range of supporting documents.
In a statutory declaration made on 24 January 2024, the applicant raised the following submissions and claims by way of clarification and in addition to his previously raised claims:
· Political profile: He and his family have strong and close connections with Jamaat.[Brother A] used to receive instructions from Jamaat leaders when engaging in political activities.Through [Brother A’s] encouragement, his association with Jamaat began when he was [age] years of age. Under [Brother A’s] guidance, he attended meetings and protests. Meetings and processions or marches occurred one to three times each month. [Brother A] introduced Union Leaders to him. He was appointed as [Position 2] for Jamaat in [Union 1]. The translator of one of the Jamaat support letters, which had been submitted to the first Tribunal, incorrectly translated his role as [Position 3] in that translation. He continues to support Jamaat and will continue to engage in political activities supporting the Jamaat–BNP coalition should he return to Bangladesh.
· [Brother A’s] business and extortion threats received by [Brother A]: [Brother A] had a [business 1/1a] in [Town 2], Dhaka. He and [Brother A] worked at that business. Due to their profile as ‘Jamaat workers’, [Brother A] faced extortion threats.
· Attack [in September] 2012 – [Brother A’s] death, filing of a police report, the applicant’s medical treatment: [Brother A] was killed on [a day in] September 2012. [Brother A] was a Jamaat branch Chairman at the time of his death.Eight or nine AL cadres came on three or four motorbikes to a Jamaat meeting around 4pm on [the day in September] 2012. About [number] people were at the meeting. The AL cadres attacked the meeting, including by firing guns. [Brother A] and others at the meeting were killed and six or seven others were injured, including the applicant. He was beaten and [injured]. He and others took [Brother A] to a hospital where a doctor confirmed that [Brother A] was already dead. He and his [uncle], [Witness A], went to the police to lodge a report about [Brother A’s] death. The police ‘refused to entertain the report’ because the incident involved ‘powerful AL people’. The police also ‘warned’ them. On the advice of his parents, a lawyer in Bangladesh was approached who assisted with the lodgment of a complaint at the [Town 2] Police Station, Dhaka on [a day in] September 2012. He went to [Hospital 1] for treatment of his injuries after the attack. He was admitted to the hospital and stayed there until [later in] September 2012, apart from a period on [the day in] September 2012 when he attended the [Town 2] Police Station Dhaka with his uncle and the lawyer to file the police report. He was ‘diagnosed for acute injury and was treated by [Doctor A]’. While he was in hospital, his family told him that AL cadres went to their home and tortured them. He then went to live with [Witness A].
· Extortion threats received by the applicant after [Brother A’s] death: He looked after [Brother A’s] business after [Brother A’s] death. The AL cadres threatened him to give them money. In October 2012, they beat him when he refused to give them money. They were angry because he went to the police to report [Brother A’s] death.
· Explanation for incorrect evidence in the past: When giving evidence to the Department and the first Tribunal, he provided ‘incorrect information’ regarding the timing of the police report, the admission to hospital and how he ‘got to know about information about the death of [Brother A]’. He did this because of ‘stress’ and apologises for this.
· Departure from Bangladesh: He left Bangladesh [in] December 2012.
· Pressure to withdraw the case: After he left Bangladesh [in] December 2012, his family members were threatened by [Mr A] and AL cadres to withdraw the case.
· Case lodged against the applicant [in] December 2012: AL cadres lodged a case against him on [a day in] December 2012 but he did not know about the case until 2017. His family retained a lawyer, [Lawyer A], to assist in the case. Various Penal Code charges were laid against him and it was alleged that [that day in] December 2012 various BNP and Jamaat supporters had organised a protest where they ‘engaged in vandalism on a bus and set fire[s] with petrol bombs, stones, iron rods and sticks’. On [a day in] March 2014, a court issued an arrest warrant.
· Case lodged against the applicant [in] January 2013: Another case was lodged against him on [a day in] January 2013 but he did not know about the case until 2017. Various Penal Code charges were laid against him and it was alleged that on [that day in] January 2013 BNP and Jamaat supporters had organised a protest march against the AL and vandalised various vehicles. A court issued an arrest warrant. The case is ongoing.
· Attack on the applicant’s family [in January] 2014 and the disappearance of the applicant’s [brother]: Local AL cadres went to his family’s house on [a day in January] 2014, vandalised the house and attacked the family. They did this because they could not find him. They tortured his [brother]. His [brother] became ‘uncontactable’. In 2017, he found out that his [brother] had moved to [Country 1] once his [brother] had informed his family of his whereabouts.
· The applicant’s [social media] activities: After he gained some knowledge of English, he has been expressing his political opinion on [social media] in support of Jamaat since 2017 in Australia.
· Serious harm, no effective protection, relocation not an option: The AL won the January 2024 Bangladeshi election. If he returns to Bangladesh, he will face serious harm from the AL, the police, the Rapid Action Battalion and the army:
o due to his active and imputed political opinion in support of Jamaat;
o due to his family’s affiliation with Jamaat;
o due to his active intention and efforts to agitate for justice for the murder of [Brother A];
o because he will be considered a failed asylum seeker who provided adverse information about the AL as part of his protection visa application, a matter which was disclosed as part of a Departmental data breach.
He cannot get any sort of effective protection from the Bangladeshi authorities due to AL influence. He cannot move to other areas of Bangladesh because, in order to pursue justice for the murder of [Brother A], he may have to visit the local area court to provide evidence.
The following supporting documents accompanied this statutory declaration:
· Documents relating to [Brother A’s] death and the related murder case lodged by the applicant on [the day in] September 2012:
o Written statement of the applicant dated [in] September 2012 (filed by the applicant at approximately 6:30pm on [that day] at [Town 2] Police Station, Dhaka) in which the attack at the Jamaat office at 4pm on [the previous day] and [Brother A’s] death were described (true copy attested by [Official B], Dhaka [in] January 2024), along with English translation.
o Complaint filed by [Officer A], [Town 2] Police Station, Dhaka dated [a day in] September 2013 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Basic Information Statement signed by [Officer A], [Town 2] Police Station, Dhaka (copy requested by the applicant [in] December 2023, copy issued to applicant on [a day in January] 2024, true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Order Sheet in [the applicant] (Plaintiff on behalf of the State) v [Accused A] (Defendant) in which case events are detailed for [days in] September 2012, [December] 2012, [March] 2013, [May] 2013, [July] 2013, [September] 2013 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Order Sheet in For the State – [the applicant] (Plaintiff) v [Accused A] (Accused) in which case events are detailed for [days in] January 2014, [March] 2014, [May] 2015, [July] 2016, [September] 2016, [a day in] May 2017, [February] 2018, [June] 2019, [November] 2019, [August] 2020, [March] 2021, [September] 2021, [March] 2022, [February] 2023, [November] 2023 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Arrest Warrant for [Mr A] dated [in] January 2014 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Page 5 of a Post-mortem report detailing information pertaining to the sudden death of [an age]-year-old man who sustained injuries to the head and [chest] along with ‘2 bullets fired at the [body part]’ (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Letter to the applicant from [Lawyer A], Notary Public LLB and Advocate, dated [in] January 2024, along with English translation.
· Documents relating to [Brother A’s] death:
o Death Certificate for [Brother A] issued by the [Union 1] Parishad Chairman [in] November 2012 (along with English translation) in which it stated: ‘According to information provided by [Brother A’s] family, he died on [a date in September] 2012. He is buried in his family cemetery. I pray for his soul to rest in peace.’
o Pdf image of a shirtless man with an apparent head injury which has been bandaged.
· Documents relating to the applicant’s hospital admission and medical treatment following the attack [in September] 2012:
o Discharge Certificate, [Hospital 1], for [the applicant], dated [in] September 2012 in which it is stated that the applicant:
§ was admitted at 11am [a date in September] 2012;
§ was diagnosed with acute injury with various parts of his body injured;
§ underwent an operation [at] 11.30am [in September] 2012;
§ was discharged [later in] September 2012.
o Letter from [Person A], Medical Technologist (Lab), [Hospital 1] and [Doctor B], Consultant (Clinical Pathology), [from Hospital 2], dated [in] January 2024 in which it is stated that the applicant was a patient at ‘our hospital’ and:
Due to an error by one of our staff members, the patient’s admission and time was mistakenly recorded as [a date in September] 2012 at 11:00 AM instead of [that date] at 5:00 PM. Similarly, the discharge time was inaccurately noted as [a later date in September] 2012 at 5:00 PM instead of [that later date in September] at 11:00 AM.
· Documents relating to the case lodged against the applicant [in] December 2012:
o Petition by [Officer B] to Officer-in-charge, [Town 2] Police Station dated [a day in] December 2012 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o First Information Report submitted [on the day [in] December 2012 (copy requested by the applicant [in] December 2023, copy issued to applicant [in] January 2024), along with English translation.
o Charge Sheet dated [in] December 2012, along with English translation.
o Order Sheet for State v [the applicant] and others in which case events are detailed for [dates in] December 2012, [February] 2013, [March] 2013, [May] 2013, [July] 2013, [October] 2013, [January] 2014 and [March] 2014 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Order Sheet for State – [the applicant] v [Mr B] and others in which case events are detailed for [dates in] August 2014, [October] 2014 and [March] 2024 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Arrest Warrant for [the applicant] dated [in] March 2014 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Letter to the applicant from [Lawyer A], Notary Public LLB and Advocate, dated [in] January 2024 informing him of the criminal case against him and advising that ‘the police, RAB and workers of the Awami League are looking for [him]’, that if found by the police he will be jailed and if found by the RAB ‘there is a threat of encounter (crossfire)’, and that Bangladesh is not safe for him ‘[a]t this moment’.
· Documents relating to the case lodged against the applicant [in] January 2013:
o Petition by [Officer C] to Officer-in-charge, [Town 2] Police Station dated [in] January 2013 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o First Information Report submitted [in] December 2012 (copy requested by the applicant [in] December 2023, copy issued to applicant [in] January 2024), along with English translation.
o Charge Sheet dated [in] December 2012, along with English translation.
o Order Sheet for State v [the applicant] and others in which case events are detailed for [dates in] January 2013, [February] 2013, [March] 2013, [May] 2013, [August] 2013 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Order Sheet for State v [the applicant] and others in which case events are detailed for [days in] March 2015, [May] 2017, [July] 2018, [July] 2019, [September] 2020, [August] 2021, [October] 2022, [November] 2023 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Arrest Warrant for [the applicant] dated [in] August 2013 (true copy attested by the [Official B], Dhaka [in] January 2024), along with English translation.
o Letter to the applicant from [Lawyer A], Notary Public LLB and Advocate, dated [in] January 2024 informing the applicant of the criminal case against him and advising that ‘the police, RAB and workers of the Awami League are looking for [him]’, that if found by the police he will be jailed and if found by the RAB ‘there is a threat of encounter (crossfire)’, and that Bangladesh is not safe for him ‘[a]t this moment’.
· First Jamaat support letter and NAATI-accredited translation.
· Second Jamaat support letter and NAATI-accredited translation.
· Copy of handwritten statement from [Witness A] dated 19 January 2024 (along with English translation and a copy of [Witness A’s] National ID Card).
· Letter of support from [Official C], [Position 4], [Branch 1], Bangladesh Jamaat-e-Islami, dated [in] January 2024 (along with NAATI-accredited translation into English).
· Trade licence issued by the [Union 1] Parishad Chairman for [Brother A’s] [business 1a], in the name of proprietor [Brother A], for the year 2012–2013 valid until 30 June 2013 (along with English translation).
· Screenshots of the applicant’s [social media] posts indicating support of Jamaat:
o during 2016: [one date];
o during 2017: [two dates] (sharing a [February] 2017 post of another user);
o during 2019: [four dates];
o during 2020: [two dates];
o during 2023: [nineteen dates including sharing multiple posts of another user];
o [six dates including sharing multiple posts of another user].
· The applicant’s [Qualification 1] from [College 1], dated 7 March 2023, and academic transcript.
Statutory declaration of 12 March 2024 and supporting documents
On 13 March 2024, the representative provided the Tribunal with a statutory declaration made by the applicant on 12 March 2024 in which the following claims and submissions were raised:
· Attack on the applicant’s family [in] January 2024: There is information missing in his previous statement and he now advises the Tribunal of this information. On [the day in January] 2024, local AL cadres attacked his parents’ home. His parents and [Sibling A] were home at the time of the attack. His family told him about this attack. The AL cadres went to his house when they became aware, presumably through having been told by court officials and police, that he was collecting documents in Bangladesh to support his case.
· Relocation: AL attacks against political opponents occur throughout Bangladesh and it is not safe for him in Bangladesh and it is also not reasonable for him to relocate to other areas within Bangladesh for the following additional reasons:
o He has an active intention to seek justice for the murder of his brother.
o He has been away from Bangladesh for more than 10 years and is unfamiliar with other areas of the country, and will therefore face difficulties in relocating.
o He does not have any Bangladeshi ID or passport, and therefore would be unable to get a place to rent.
o Given the passage of time since he left Bangladesh, if he returns he will be considered a stranger and unable to get employment to survive.
o His parents are ‘old’ and, as a son, he would be required to travel back to the local area to perform necessary religious rituals if anything happened to them.
· Departmental data breach: On 8 March 2024, he received an email from the law firm [advising] him about a data breach from the Department on 10 February 2014. He believes this data breach may potentially place him at risk.
In support of this statutory declaration, a copy of the email to the applicant from the [law firm] dated 8 March 2024 was provided to the Tribunal.
The hearing conducted on 20 and 25 March 2024
The applicant appeared before the Tribunal on two occasions to give evidence and present arguments at hearing. The applicant initially appeared before the Tribunal on 20 March 2024 between 1.29pm and 5.50pm to give evidence and present arguments. The hearing was adjourned and resumed at 1.09pm on 25 March 2024 and concluded at 6.20pm that day. While the Tribunal notes that the applicant had one hearing that was conducted over two days approximately a week apart, for sake of clarity the Tribunal’s reference below to ‘the first hearing day’ relates to that part of the hearing which occurred on 20 March 2024 while a reference to ‘the second hearing day’ relates to that part of the hearing which occurred on 25 March 2024. The representative attended the hearing. The Tribunal also received oral evidence from [Witness A] via telephone from Bangladesh near the end of the second hearing day. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
At the outset of the hearing, a Tribunal officer was given and made a photocopy of the applicant’s NSW Driver Licence. The applicant’s licence was returned to him during the first hearing day. Further, during the making of its preliminary remarks at the outset of the hearing, the Tribunal clearly advised the applicant that he should let the Tribunal know if he would like a break at any point in time during the hearing so that the Tribunal could consider that request. Taking into account the nature of the claims raised and the potential that the applicant might not be forthcoming in his evidence, the Tribunal assured the applicant during the making of its preliminary remarks that the hearing was confidential and that nothing said in the hearing would lead to him being identified outside the Tribunal.
Where relevant, the oral evidence of the applicant and [Witness A] is discussed in the Tribunal’s analysis, findings and reasons below.
Post-hearing material
Submission and supporting documents received on 10 April 2024
On 10 April 2024, the Tribunal received a submission dated 13 March 2024. The representative did not provide this material to the Tribunal prior to the hearing. The representative maintained that the applicant has a ‘credible political profile’ given his Jamaat membership and activism which includes his social media activities. The representative further submitted that the applicant continues to fear that he will face serious and significant harm, including ‘torture, degrading, inhuman and cruel treatment in Bangladesh’, if he was to return to Bangladesh now or in the foreseeable future ‘due to his political opinion, activities and his intention seeking justice for the murder of his brother.’ The following country information was referenced within and attached to this submission:
· ‘Bangladesh: Serious human rights violations must end’, World Organisation Against Torture, 7 February 2022.
· Amnesty International Report 2022/23, The State of the World’s Human Rights, Bangladesh 2022.
· Press release – Human Rights Observation Report of Bangladesh 2023, Human Rights Support Society, 31 December 2023.
· Press release – Human Rights Observation Report of Bangladesh (January to November 2023), Human Rights Support Society, 9 December 2023.
· European Parliament resolution on the human rights situation in Bangladesh, notably the case of Odhikar (2023/2833(RSP)), 13 September 2023.
· European Parliament Verbatim report of proceedings – Human rights situation in Bangladesh, Strasbourg, 13 September 2023.
· Human Rights Watch, World Report 2024 – Bangladesh, published 11 January 2024.
· Riaz, A., ‘Is the Judiciary Being Weaponized in Bangladesh?’, The Diplomat, 1 January 2024.
· Prakash, R., ‘Bangladesh’s Flawed Election Increases Polarization, Risk of Violence’, The Diplomat, 10 January 2024.
· Parvez, S., ‘Hope is fading for democracy in Bangladesh’, East Asia Forum, 6 March 2024.
· UK Home Office, ‘Country Policy and Information Note – Bangladesh: Actors of protection’, Version 2.0, November 2023.
· UK Home Office, ‘Country Policy and Information Note – Bangladesh: Internal relocation’, Version 2.0, November 2023.
Statutory declaration of 22 April 2024 and supporting documents
On 22 April 2024, the representative provided the Tribunal with a statutory declaration made by the applicant on 22 April 2024 in which various arguments and submissions were made and additional information provided, including the following:
· The Tribunal did not provide the applicant a fair hearing on 25 March 2024 because he was fasting during Ramadan: The Tribunal did not give the applicant a break during the second hearing day which went for five hours. The Tribunal was aware the applicant was fasting. The representative was asked by the Tribunal not to interfere during the course of the hearing and so did not intervene. The applicant was ‘scared’ to remind the Tribunal again that he was fasting and tired. During his hearing with the first Tribunal on 5 July 2016 he was tired and his throat was dry due to his fasting. This was made clear to the first Tribunal in the submission dated 22 July 2016.This Tribunal breached its obligation to provide a fair hearing to the applicant as a ‘fair hearing includes a reasonable break particularly when a person was fasting without drinking water’. It was ‘unreasonable for the AAT conducted the hearing for five hours without any break and instructing my representative not to intervene’. The applicant stated that he would ‘leave with the AAT to form a view whether it is reasonable to conduct a hearing for five hours without any break and expects answers without confusion from a refugee applicant regarding the events happened a decade ago’.
· The Tribunal had not read the applicant’s statutory declaration of 12 March 2024 before the hearing: At hearing, the Tribunal was unaware of the claim in this statutory declaration that the applicant’s family had been attacked in January 2024. The Tribunal challenged the credibility of the applicant’s oral evidence in support of this claim at hearing when it stated that the claim had not been raised in other material lodged before the hearing. The representative fortunately pointed out the submission of the claim to the Tribunal in the applicant’s statutory declaration of 12 March 2024. The Tribunal then quickly read that document during the hearing. The Tribunal raising this concern and challenging the applicant’s credibility ‘seriously affected [him] causing stress’. Based on that, the applicant was inclined to form a view whether there was a lack of intellectual engagement in conducting the hearing and that the hearing was unfair because any mistakes will cause irreparable harm to refugee applicants like him.
· The Tribunal’s concern raised at hearing regarding the applicant’s involvement in [Brother A’s] [business 1]: At hearing, the Tribunal’s observation that the applicant had not told the delegate that he had worked in his late brother’s [business 1] was incorrect and was of significant concern to the applicant. The Tribunal’s approach when raising this concern was unfair given that the applicant told the Department in paragraph 10 of his statutory declaration made on 8 June 2014 that he was the responsible person to run the [business 1] and therefore had provided information to the delegate that he worked in his brother’s business.
· The Tribunal’s concern raised at hearing regarding the applicant’s Jamaat membership: At hearing, the applicant was severely stressed when the Tribunal raised its concern about his membership of Jamaat. The applicant was worried that the Tribunal had not read the Jamaat support letters provided to the first Tribunal, in which it had been stated that he was an ‘active member’. The applicant also claimed that during his entry interview he mentioned that he was threatened due to his political involvement and that he confirmed during this protection visa application interview that he was involved with Jamaat where he attended meetings and events and voted for the party. The ‘misinformation during the hearing given by the AAT caused confusion affecting [his] credibility’.
· The Tribunal’s concern raised at hearing that the trade licence described [Brother A’s] business as a [business 1a] rather than as a [business 1]: In the part of the world where the applicant is from, people ‘use the name of [business 1a] for a [business 1] as well’. The applicant will provide evidence to support this claim.
· The Tribunal’s concern raised at hearing in relation to the applicant’s social media activity: In relation to the applicant’s social media posting, he has posted on social media since 2016/2017 once he became familiar with [social media] and developed some knowledge of English. He and his family have an historical involvement with Jamaat and his social media posts arise from this and his own political beliefs and activities.
· The Tribunal’s concern raised at hearing in relation to the possibility of there not being a real chance of serious harm or real risk of significant harm in the applicant’s case: Active members of Jamaat, like the applicant, face targeted harm in Bangladesh. His family is also involved with Jamaat. He intends to seek justice for the murder of his brother. Based on all these cumulative reasons, he faces a real risk of harm in Bangladesh.
· The Tribunal’s concerns raised at hearing involving [Mr A] and the applicant’s intention to seek justice for [Brother A’s] death: [Mr A] is a dangerous AL leader involved in criminal activities. [Mr A] killed [Brother A]. He will be harmed by [Mr A] because he intends to seek justice for [Brother A’s] murder. He has contacted a lawyer in Bangladesh about his case against [Mr A] and has provided that lawyer’s opinion to the Tribunal.
· The Tribunal’s concern raised at hearing in relation to the inconsistency at hearing between the oral testimony of the applicant and the witness: The witness, [Witness A], is old and has health issues. After the hearing, the witness called the applicant ‘and said he was very stressed and had heavy palpitation which resulted in inconsistencies in evidence.’ The witness was later admitted to hospital and the applicant has provided some medical documents.
The following supporting documents accompanied the statutory declaration:
· A Google Maps entry for [named business] in Dhaka which is described in this entry as a ‘[business 1]’.
· Documents relating to the health of [Witness A]:
o Report (in Bengali) regarding [Witness A] from [Doctor C] signed 25 March 2024;
o Coronary Angiogram Report, [Hospital 3], Mirpur, Dhaka dated 25 March 2024 (procedure date 25 March 2024);
o Haematology Report, [Hospital 3], Mirpur, Dhaka (test date 25 March 2024);
o Biochemistry Report, [Hospital 3], Mirpur, Dhaka (test date 25 March 2024);
o Serology Report, [Hospital 3], Mirpur, Dhaka (test date 25 March 2024);
o Urine Examination Report, [Hospital 3], Mirpur, Dhaka (test date 25 March 2024);
o Echocardiography Report, [Hospital 3], Mirpur, Dhaka (printing date 26 March 2024);
o ECG dated 26 March 2024 and scan imagery;
o Undated sketch of heart diagram with notations;
o Advices and Recommendations from Consultant Registrar and Medical Officer, [Hospital 3], Mirpur, Dhaka (undated).
Statement of 20 June 2024 and supporting documents
On 6 June 2024, the Tribunal wrote to the applicant in relation to a certificate issued on 6 June 2024 by a delegate of the Minister for Home Affairs and the Secretary of Home Affairs under s 438 of the Act regarding the non-disclosure of certain material held on the Department file [number] (non-disclosure certificate). A copy of the non-disclosure certificate was attached to the letter and the applicant was invited to provide comments or submissions about its validity along with submissions in relation to the exercise of the Tribunal’s discretion under s 438(3)(b) whether to disclose the material covered by the certificate to him. The applicant was advised that, subject to his comments or response, the Tribunal did not intend to disclose the material covered by the certificate. Nevertheless, pursuant to s 424A, the Tribunal invited the applicant to comment on or respond to information contained in the material covered by the non-disclosure certificate.
By way of response to the Tribunal’s letter of 6 June 2024, on 20 June 2024 the representative provided the Tribunal with a statement signed by the applicant on 20 June 2024 in which the following comments were made by the applicant:
· Having considered his representative’s advice about the certificate’s validity, he advises the Tribunal that the non-disclosure certificate is valid.
· The Tribunal did not provide him with a copy of the birth certificate he provided to the Department after his arrival.
· As far as he knows, he provided the Department with a copy of the birth certificate attached to this statement. He has attached to this statement an English translation of this birth certificate.
· He has also attached a copy of an online verification of his birth registration record in Bangladesh. This is material and corroborative evidence in support of his claim that his birth certificate is genuine. The Tribunal can also verify the details of his birth online at he convinced the Department that his birth certificate is genuine, then he is inclined to form the view that the documents he provided the Tribunal are genuine.
· The Tribunal should therefore accept his documents are genuine and that his claims are true and correct.
· Based upon the country situation, which continues to worsen where political opponents including from Jamaat are targeted, he will face serious harm including being killed, tortured, and degrading and inhuman treatment.
Attached to this statement were the following documents:
· Copy of a Birth Registration Certificate (in Bangla, with a stamp indicating that it had been released by the Department under the Freedom of Information Act 1982) along with NAATI translation of same, in which the following information is specified – Name: [the applicant]; Birth Registration Number: [Number 1]; Date of Birth: [DOB 1]; Father’s name: [Father A]; Mother’s name: [Mother A].
· Birth Registration Record Verification for the applicant obtained online at [time] on [a day in] June 2024 through the following website OF CLAIMS AND EVIDENCE
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
[6] Fox v Percy (2003) 214 CLR 118
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[7] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[7] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25]
[9] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[10] UNHCR Handbook, reissued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[11] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[12] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]
[11] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[13] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[14] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[15] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[14] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[15] Ibid
183. In relation to the applicant’s [social media] activities, the Tribunal raised a concern with the applicant at hearing that those activities were not extensive and that his [social media] commenting and interaction with other users was minimal. It observed that the material before it indicated that he had only become a frequent user of [social media] between 14 October 2023 and 6 January 2024 where he largely commented upon matters relating to the Bangladeshi national election held on 7 January 2024, his posts largely involved sharing the posts of other users and occasionally making brief comments that were simplistic and merely identified him as an ordinary Jamaat supporter. It also observed that his posts had not been liked or shared by other [social media] users and there was no evidence to suggest he had a large group of followers on [social media] or any other social media platform. While acknowledging that country information sources indicate that journalists and high-profile social media commentators critical of the Bangladeshi government and AL have been targeted in Bangladesh for their online activities,[26] the applicant’s social media activities were, in the Tribunal’s view, in no way comparable to such individuals or could conceivably give rise to him having a discernible profile as an online political activist such that he would attract adverse attention and face harm in Bangladesh on account of those activities. By way of response, the applicant stated that he was only able to share posts because he was not in Bangladesh where he could witness events to take photographs and videos and share these online.
[26] DFAT Country Information Report – Bangladesh (30 November 2022), paras 3.106–3.111; BTI 2024 Country Report – Bangladesh, p.10. See also Amnesty International Report 2022/23, ‘The State of the World’s Human Rights, Bangladesh 2022’, pp.1–2; ‘Bangladesh: Serious human rights violations must end’, World Against Torture, 7 February 2022.
184. Following the hearing, and by way of his statutory declaration of 22 April 2024, the applicant added that he has been posting on social media since 2016/2017 once he became familiar with [social media] and developed some knowledge of English. He explained that his social media posts arise out of him being part of a family that has a historical involvement with Jamaat, his political activities and his own political beliefs.
185. The Tribunal has considered the applicant’s response at hearing, along with the totality of the evidence before it in relation to his social media activities including his post-hearing statements outlined above and the country information submitted to the Tribunal, but does not depart from its characterisation of his social media activities that were put to the applicant at hearing. It maintains its position that the applicant’s social media activities are not of a kind that would elevate the applicant’s profile such that he would draw adverse attention in Bangladesh from [Mr A], AL people, the AL ruling party or the Bangladeshi authorities more broadly. The Tribunal is in no way persuaded by the applicant’s suggestion that his initially limited English language proficiency and absence from Bangladesh explain why his online social media activities have been limited to date. In relation to his limited English language proficiency being a barrier to his social media uptake, there is no reason why the applicant could not have been active on social media at an earlier juncture in Bangladesh or Australia by communicating in Bengali. Furthermore, if the applicant were genuinely interested in sharing more personalised photographs and videos of pro-Jamaat and anti-AL events and other political activities that have been taking place in Bangladesh, no reason has been given in relation to why he has been unable to personally connect with activists and journalists in Bangladesh since arriving in Australia to obtain that material for the purpose of sharing it across social media platforms.
186. Further, the Tribunal finds that little persuasive evidence of the applicant having maintained any significant independent degree of interest in, or knowledge of, Jamaat and Bangladeshi politics more generally since his arrival in Australia in May 2013.
187. Based upon the above analysis, and having considered the totality of the evidence presented in relation to the applicant’s social media activities, the Tribunal makes the following findings:
· The applicant has not maintained any significant independent degree of interest in, or knowledge of, Jamaat and Bangladeshi politics since his arrival in Australia in May 2013.
· The applicant’s political activities and expression of his political opinion since leaving Bangladesh has been minimal and he has not garnered a discernible profile on account of those activities such that he would attract adverse attention and face harm in Bangladesh.
The applicant’s proposed political activities in Bangladesh should he return there
188. Department: At his entry interview and protection visa application interview, the applicant made no mention of his intention to engage in any political activities should he return to Bangladesh. Similarly, no information was provided in the applicant’s statutory declaration of 8 June 2014 about any proposed political activities in Bangladesh.
189. First Tribunal: No information was provided in the applicant’s statutory declaration of 24 June 2016 about any proposed political activities in Bangladesh. At the first Tribunal hearing, when asked whether he would resume any political involvement in Bangladesh, the applicant stated that he did not want anything to do with Jamaat because he just wanted to survive. He further stated that he doesn’t think about political parties at the moment.
190. This Tribunal: In the applicant’s statutory declaration of 24 January 2024, he claimed that he was a Jamaat supporter and that if he returned to Bangladesh he would continue to engage in political activities supporting the Jamaat–Bangladesh Nationalist Party coalition. At hearing, the applicant was asked about his proposed political activities, and expression of political opinion, in Bangladesh. He stated that he would support Jamaat and ‘work for them’. Asked about that work and how such work might attract adverse attention in Bangladesh, the applicant was unable to articulate anything further beyond his initial assertion that he would work for Jamaat.
191. Based upon the above, and having considered the totality of the evidence presented and the findings above in relation to the applicant’s political activities and expression to date, the Tribunal makes the following finding:
· The applicant has no intention to engage in any political activities in Bangladesh beyond merely resuming some form of low-level support activity for Jamaat in his local area.
Overall summary of key findings
192. On the basis of the evidence before it, the Tribunal accepts that the applicant is [an age]-year-old man and a Bangladeshi national who lived in Bangladesh before departing from Chittagong by boat [in] December 2012. Having carefully considered the available evidence, for the reasons detailed above, considered cumulatively, the Tribunal makes the following key findings in relation to:
· the applicant’s family: The applicant and his family members in his local area of [Town 1] are Jamaat supporters.
· the applicant’s brother [Brother A]: [Brother A] was an active Jamaat leader in the local area of [Town 1]. [Brother A] was the owner of a [business 1] at [Location 1], [Town 2], Dhaka in Bangladesh during 2012. [Brother A] was of adverse interest to some local AL members in 2012 because of his relatively high-level political profile as a Jamaat leader in his local area at that time. In August 2012, some AL members attended [Brother A’s] [business 1] and demanded a sum of money in the order of 1 million taka from [Brother A] and made threats that were directed at [Brother A]. There is no evidence before the Tribunal of [Brother A’s] Jamaat-related activities since 2012.
· the applicant: The applicant had a relatively limited and localised interest in, and knowledge of, Jamaat and Bangladeshi politics when he lived in Bangladesh and this primarily stemmed from his association with his brother [Brother A]. The applicant was not an official member of Jamaat in Bangladesh. The applicant was not a [Position 3] or [Position 2] for Jamaat in Bangladesh. The applicant has not held any official role in Jamaat, either in Bangladesh or in Australia. The applicant did not recruit or influence people to become members or supporters of Jamaat in Bangladesh. The applicant was a low-level supporter of Jamaat in his local area in Bangladesh whose political activities were restricted to attending local meetings, demonstrations, processions and rallies under [Brother A’s] instructions, predominantly between May 2012 and [September] 2012 and no more frequently than three times per month. The applicant has not maintained any significant independent degree of interest in, or knowledge of, Jamaat and Bangladeshi politics since his arrival in Australia in May 2013. The applicant’s political activities and expression of his political opinion since leaving Bangladesh has been minimal and he has not garnered a discernible profile on account of those activities such that he would attract adverse attention and face harm in Bangladesh. The applicant has no intention to engage in any political activities in Bangladesh beyond merely resuming some form of low-level support activity for Jamaat in his local area.
· the applicant’s claims involving various adverse experiences and developments in Bangladesh:
o A violent incident at a Jamaat meeting [in September] 2012 where [Brother A] and the applicant were attacked by [Mr A] and AL members did not occur.
o [Brother A] was not killed at a Jamaat meeting [in September] 2012 by [Mr A] and AL members.
o The applicant was not injured at a Jamaat meeting [in September] 2012 by [Mr A] and AL members and was not subsequently hospitalised for treatment for such injuries.
o The applicant did not file a police report, or pursue a criminal case, against [Mr A] and AL members in order to seek justice for the murder of [Brother A].
o The applicant was not responsible for and did not run [Brother A’s] [business 1] in October 2012.
o The applicant was not threatened and beaten at or near [Brother A’s] [business 1] by AL people in October 2012.
o [Brother A’s] [business 1] was not robbed by AL people in October 2012.
o No criminal cases have been filed against the applicant in Bangladesh, including by [Mr A] or AL people.
o The attacks on, and harassment of, the applicant’s family members other than [Brother A] (including an attack at the applicant’s family home [in] January 2014 which led to the disappearance of [Brother B] and a recent attack at the applicant’s family home [in] January 2024) did not occur.
o [Brother B] did not flee Bangladesh for reason of having been attacked by [Mr A] and AL people at the applicant’s family home [in] January 2014.
Assessment: refugee criterion
193. As stated above, the applicant claims that he fears returning to Bangladesh because he would face harm:
· from AL members, supporters, leaders and officials, including [Mr A], on account of his:
o political opinion, actual or imputed, given his involvement with and support of Jamaat;
o membership of a particular social group such as ‘family members of Jamaat supporters’ and ‘persons who have lodged a police complaint against the AL’;
· in the form of significant economic hardship, denial of access to basic services or the denial of capacity to earn a livelihood of any kind which threatens his capacity to subsist;
· on account of him being considered a failed asylum seeker returning to Bangladesh after having departed Bangladesh without a passport.
The applicant also claimed that the risk of harm is heightened as a result of a Departmental data breach which, given his previous adverse experiences with AL members and [Mr A] in Bangladesh, would have made the AL aware that he was making protection claims against the AL.
194. For reasons explained above, the Tribunal rejects a vast majority of the factual matrix propounded by way of underpinning these alleged fears. The Tribunal’s further analysis follows.
Political opinion or membership of a particular social group
195. The Tribunal now assesses whether, in light of the above findings, and having regard to other relevant factors – in particular country information on the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Bangladesh for the reason of his political opinion, actual or imputed, or for any similar reason enumerated in s 5J(1) of the Act including his membership of a particular social group such as ‘family members of Jamaat supporters’ and ‘persons who have lodged a police complaint against the AL’.
196. Taking into account the accepted evidence, the Tribunal finds that the applicant has not garnered any discernible profile on account of his political opinion, actual or imputed, or his membership of any particular social group such that if he were to return to Bangladesh he would be of any adverse interest to the Bangladeshi government, the AL party, any AL officials, members and supporters including [Mr A] and his associates, or any other groups or individuals for any reason enumerated in s 5J(1) of the Act.
197. At hearing, the Tribunal put to the applicant that country information[27] suggested low-profile members or supporters of Jamaat were not subject to adverse attention from the Bangladeshi authorities and this suggested he and his family members would not attract adverse attention from those authorities, the AL or any of its supporters. By way of response, the applicant told the Tribunal that, in Bangladesh, high-profile leaders do not get killed while those ‘working in the lower category’ do get killed and there was hardly any news about them. The Tribunal has considered this response and accepts, on the basis of available country information, that high-profile Jamaat leaders and activists may face harm in Bangladesh. However, taking into account the accepted evidence, the Tribunal does not accept that the applicant or any of his family members fall within such a category of at-risk persons.
[27] DFAT Country Information Report – Bangladesh (30 November 2022), para. 3.89
198. On the available evidence, and the Tribunal’s analysis and findings above that clearly demonstrate the applicant’s tendency to fabricate, exaggerate and embellish his evidence, the Tribunal does not accept that the applicant holds a political opinion that motivates him to speak out about political matters or undertake political activities in a manner that would attract any adverse attention in Bangladesh. Furthermore, taking into account the findings above in relation to the limited nature and degree of the political activities of the applicant’s family members including [Brother A], and noting that the significant amount of time that has elapsed since [Brother A] was threatened in August 2012 and nothing has happened to any of the applicant’s family members since that time, the Tribunal finds that it does not accept that he would be imputed with any measure of political opinion of concern to AL leaders, members and supporters on account of his family’s political history and association with Jamaat.
199. Specifically in relation to the applicant’s membership of a particular social group of ‘family members of Jamaat supporters’, the Tribunal refers to its analysis and findings above in relation to the political profiles of the applicant’s family members including [Brother A] and concludes that their support of Jamaat, considered individually and collectively, does not give rise to a real risk of the applicant facing serious harm in Bangladesh now or in the reasonably foreseeable future.
200. The Tribunal acknowledges that [Brother A] was threatened and faced extortion threats in August 2012. However, it is of the view that the prospect of further targeting on this basis is unlikely given that there is no accepted evidence to suggest that [Brother A] has since been, or would be, threatened or otherwise harmed by [Mr A], [Mr A’s] associates or any other AL leaders, members or supporters in Bangladesh. There is also no accepted evidence of any of [Brother A’s] family members, including the applicant, having been harmed on account of their relationship with [Brother A]. Notably, there is also no accepted evidence indicating that [Brother A] has held any leadership role in Jamaat since 2012 or that any member of the applicant’s family is or will become a Jamaat leader or activist in Bangladesh.
201. The Tribunal is of the view, based upon its findings above, that the applicant’s family members have kept a relatively low profile as Jamaat supporters in their local area. There is no persuasive evidence before the Tribunal suggesting that the applicant’s family members are, or will become in the reasonably foreseeable future, Jamaat supporters with a high profile. There is also no persuasive country information before the Tribunal suggesting that family members of Jamaat supporters with such a low profile are targeted for reason of their membership of that particular social group.
202. Specifically in relation to the applicant’s membership of a particular social group of ‘persons who have lodged a police complaint against the AL’, the Tribunal refers to its analysis and findings above and concludes that the applicant is not a member of such a group as he has not lodged a police complaint against the AL.
Risk of significant economic hardship, denial of access to basic services or denial of the capacity to earn a livelihood of any kind which threatens the applicant’s capacity to subsist
203. Taking into account the above findings, and on the limited available material, the Tribunal infers that the applicant would return to [Town 1] where his parents and other family members reside. At hearing, the applicant stated that if he were to return to Bangladesh he would seek work commensurate with his qualifications and experience and resume working in the [industry 1].
204. Given the applicant has spent almost the entirety of his life in Bangladesh residing in his village of [Town 1] and its local surrounding area within Dhaka, the Tribunal is of the view that he would be inclined to return to Bangladesh and reside there as he has family and other support available to him in that area. This will strengthen his prospects of successful resettlement and reintegration into Bangladeshi society.
205. At hearing, the applicant told the Tribunal that he had no debts and had amassed savings in the order of AUD[amount]. The Tribunal is of the view that these funds are significant and will enable him to successfully reintegrate into Bangladeshi society, including by way of enabling him to resume his participation in the [industry 1], upon his return and in the foreseeable future.
206. At hearing, the applicant stated that he did not have a Bangladeshi National Identity Card (NIC) and driver’s licence. He claimed that he would have difficulty obtaining a NIC and driver’s licence, which he would require for the purposes of renting accommodation and working, because relevant officials, including his local area chairman and police officers, would not sign the required paperwork on account of his affiliation with Jamaat and claimed historical past with [Mr A] and other AL people. As discussed with the applicant at hearing, country information does not indicate that returnees who are failed asylum seekers would experience difficulty obtaining a NIC or a driver’s licence.[28] The Tribunal invited the applicant to comment upon this country information but he simply reiterated that he did not have a NIC. The Tribunal also provided the applicant an opportunity to submit further information following the hearing in support of his claims in this regard but it has not received any further submissions or country information on this issue. On the basis of the available information, the Tribunal finds that the applicant will not face any difficulty securing a NIC or driver’s licence in Bangladesh. Furthermore, based upon its findings above in relation to the applicant’s claims relating to his political opinion and membership of a particular social group, the Tribunal rejects the applicant’s claim that his applications for such identity documents would be obstructed by government officials or otherwise hindered for those reasons.
[28] DFAT Country Information Report – Bangladesh (30 November 2022), paras 5.31–5.33
207. The Tribunal is not satisfied that the applicant faces a real chance of being subject to serious harm – including the denial of access to basic services or the denial of the capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist[29] – on his return to Bangladesh.
[29] To take one of the non-exhaustive instances of serious harm set out in s 5J(5) of the Act
208. On the available evidence, the Tribunal is also not satisfied that there are any factors that would prevent the applicant from re-establishing himself in Bangladesh. The Tribunal notes that from an employment perspective, the applicant may be able to obtain the level of employment that he had previously in the [industry 1]. The Tribunal is satisfied that the applicant will be able to obtain work on return to Bangladesh.
209. Given the Tribunal’s finding above that he will be able to secure employment in Bangladesh and will have access to a substantial amount of savings, the Tribunal is satisfied that he will also have resources to draw upon to support himself such that he will not be subjected to serious harm as instanced in s 5J(5) of the Act, such as significant economic hardship that threatens his capacity to subsist on return to Bangladesh.
Risk of future harm as a failed asylum seeker and illegal departure
210. The Tribunal notes that the applicant has been outside Bangladesh since December 2012, a period of over a decade, and would be returning there now as a person who has spent substantial time overseas in a Western country. It accepts that he left Bangladesh without a passport. It also accepts that he does not hold, and has never held, a Bangladeshi passport.
211. In his statutory declaration of 24 June 2016, the applicant maintained that he faces harm as someone who left Bangladesh illegally or as a failed asylum seeker. He maintained that the Bangladeshi police will pick him up at the airport and he will be arrested when they find out how and why he left Bangladesh, they will tell the authorities and he is sure that [Mr A] and other AL members will find out that he is back in Bangladesh.
212. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Bangladesh from the authorities as a failed asylum seeker and due to his illegal departure from Bangladesh in 2012 without a passport.
213. DFAT’s most recent Country Information Report on Bangladesh provides the following information relevant to Treatment of Returnees and Conditions for Returnees:
5.21 The Overseas Employment and Migrants Act (OEMA) 2013 makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart Bangladesh. The OEMA (like the previous 1982 ordinance) is designed to protect Bangladeshis from human trafficking (rather than to prosecute illegal exit or prosecute failed asylum applications, for example) and even those provisions are rarely enforced. It is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted under the legislation or the previous 1982 ordinance and DFAT is not aware of any cases of this happening.
5.24 It is possible that a person who is involuntarily returned by a foreign government after travelling on a fraudulent document will be detained and questioned by police once back in Bangladesh. However, these are isolated and high-profile cases and DFAT is not aware of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
5.25 Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
5.26 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.[30]
[30] DFAT Country Information Report – Bangladesh (30 November 2022), paras 5.21, 5.24–5.26
214. The Tribunal notes that DFAT’s two earlier reports, in February 2018 and August 2019, similarly concluded that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily and that authorities may take an interest in high-profile individuals, but this is unlikely for a returnee without such a profile.[31]
[31] DFAT Country Information Report – Bangladesh (2 February 2018), paras 5.22–5.23; DFAT Country Information Report – Bangladesh (22 August 2019), paras 5.27–5.30
215. At hearing, the Tribunal put the above country information to the applicant for comment, suggesting that it tended to indicate that he did not face a real chance of serious harm upon return to Bangladesh as a failed asylum seeker given his low-level political profile. By way of response, the applicant stated that those with a high profile in Bangladesh get taken to jail and are not killed while those with a low profile are just killed. The Tribunal has considered this response and finds that it does not address the country information or otherwise alter the Tribunal’s findings. The Tribunal prefers the country information on the issue of assessing the risk of harm to be faced on account of the applicant returning to Bangladesh as a failed asylum seeker.
216. Above, the Tribunal found the applicant has no ongoing or discernible Jamaat profile, and no outstanding cases or charges against him or other profile of interest to the authorities. Therefore, the Tribunal is satisfied he does not face a real chance of serious harm as a returnee following a prolonged absence, or as a failed asylum seeker. Therefore, based upon the findings above in relation to the applicant’s political profile and the available country information, the Tribunal finds that the applicant is a low-profile individual who would not face serious harm returning to Bangladesh as a failed asylum seeker.
217. The Tribunal accepts that the applicant, if returned to Bangladesh, would be returning after being absent for a substantial period of over 11 years. Returning from Australia following a prolonged stay here, the Tribunal accepts the authorities may assume he had sought asylum here and failed. The applicant departed Bangladesh without a passport, however the country information indicates that it is unlikely that any person returning after a failed asylum attempt in Australia would be prosecuted under the Overseas Employment and Migrants Act (OEMA) 2013 or the previous 1982 ordinance for this reason and that DFAT is unaware of any such prosecutions. The Tribunal acknowledges that the above extract from the most recent DFAT report is silent on what specifically might happen to a returnee who had departed illegally and/or without a valid passport. An earlier DFAT report published in 2014 states that if a person leaves or attempts to leave Bangladesh without a valid passport they may face imprisonment for up to three months or a fine.[32] However, in a July 2016 report, DFAT advises that it is not aware of these penalties being enforced,[33] and there is no information before the Tribunal to indicate otherwise.
[32] DFAT Country Information Report – Bangladesh (20 October 2014), para. 5.28
[33] DFAT Country Information Report – Bangladesh (5 July 2016), para 5.20
218. The Tribunal also notes DFAT’s advice that it is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad, and its comments about the Bangladeshi authorities’ capacity issues (to detect people who return who may have left years ago illegally, for example). Given these considerations and noting DFAT’s assessment is that most returnees including failed asylum seekers are unlikely to face adverse attention, the Tribunal finds the applicant will not face a real chance of serious harm on return to Bangladesh as a failed asylum seeker and due to his illegal departure in 2012. His fear of persecution on these bases is not well-founded.
Departmental data breach
219. As referred to above, the applicant has claimed that he was affected by the ‘data breach’ that occurred in February 2014 when his personal information may have been accessible online for a short period of time on the Department’s website as a result of an error inadvertently made by the Department. In the submission dated 11 November 2014, the applicant’s former representative argued that the data breach in February 2014 increased the risk of harm faced by the applicant were he to be returned to Bangladesh. In his statutory declaration of 24 January 2024, the applicant maintained that the Departmental data breach elevated his risk profile whereby the Bangladeshi authorities will consider him to be a ‘failed asylum seeker who have [sic] provided adverse information regarding the Awami League and therefore, [he] will be targeted and harmed’.
220. In the Tribunal hearing, when this was raised by the Tribunal, the applicant was unable to provide any additional evidence in relation to the potential impact of the data breach upon him but commented that he was not sure how the AL people in Bangladesh who had harmed his family knew he was in Australia. The Tribunal considers the applicant’s comment to be vague, undetailed and speculative and gives it no weight to support the claim that local AL people became aware of the applicant’s presence in Australia due to the data breach that occurred in February 2014.
221. As stated in the delegate’s decision, the information that was possible to access was the applicant’s name, date of birth, nationality, gender and details about his detention (such as when, where and why (being unlawful)). There was no information accessible regarding his protection visa application claims.
222. In the event this information was accessed by the Bangladeshi authorities, the Tribunal does not consider there to be anything in the data breach information that would not already be known to the Bangladeshi authorities if the applicant returned to Bangladesh in the foreseeable future. The key information would be that he was in immigration detention due to having arrived in Australia as an illegal maritime arrival. Given the circumstances in which he would be returning to Bangladesh, the Tribunal considers it is likely that the Bangladeshi authorities would infer that he had sought asylum in Australia. The Tribunal does not accept that the Bangladeshi authorities would be aware of the details of his claims for protection.
223. The Tribunal notes that the DFAT Report does not refer to having been affected by the data breach as a risk factor for returning asylum seekers. The Tribunal finds that having been affected by the data breach does not increase the risk of the applicant coming to the attention of the authorities if he returns to Bangladesh in the foreseeable future. For the reasons set out above, the Tribunal has found that as a returning failed asylum seeker who departed Bangladesh illegally, the applicant would not face a real chance of serious harm.
Cumulative consideration of claims
224. As well as considering the applicant’s claims individually, the Tribunal has considered his accepted claims on a cumulative basis. That is, the applicant is [an age]-year-old Bangladeshi man from [Town 1] who has never been married and has no dependents; his family members are low-level Jamaat supporters apart from his brother [Brother A] who was a local Jamaat party leader who was once threatened by [Mr A] and some AL people in August 2012 to pay an extortion sum; before he left Bangladesh in December 2012, he was a low-level Jamaat supporter who attended local meetings, demonstrations, processions and rallies under [Brother A’s] instructions, predominantly between May 2012 and [September] 2012 and no more frequently than three times per month; his political activities and expression since leaving Bangladesh has been minimal and restricted to some social media posting on [social media]; he has not maintained any significant independent degree of interest in, or knowledge of, Jamaat and Bangladeshi politics since his arrival in Australia in May 2013; he will not engage in any political activities in Bangladesh beyond merely resuming some form of low-level support activity for Jamaat in his local area.
225. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Bangladesh now or in the reasonably foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
226. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that he meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment: complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
228. The Tribunal has considered whether, on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.
229. The Tribunal takes into account the above findings of fact, its view of the applicant’s future conduct and country information about the general conditions in Bangladesh. It concludes that there is no real risk that the applicant will be subjected to any form of harm, which would be the result of an act or omission, by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture, or to meet the definition of cruel or inhuman treatment or punishment, or to meet the definition of degrading treatment or punishment). It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Bangladesh.
230. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s 36(2)(aa).
CONCLUSION
231. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
234. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.
Peter Papadopoulos
Member
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