2100707 (Refugee)

2100707 (Refugee) [2023] AATA 1843 (3 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2100707
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Kate Chapple
DATE:3 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 03 April 2023 at 8:45am
CATCHWORDS
REFUGEE – Protection Visa – Bangladesh – political opinion – father’s political involvement in Bangladesh – father is in a position of influence and authority within the Jatiya Party – subject of falsified and politically motivated charges and allegations – applicant is known to his father’s political opponents – only child – applicant has a well-founded fear of persecution– State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91,499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
OVERVIEW

The applicant is a Bangladeshi man aged [age] who grew up as an only child, close to his parents, and observing his father’s often controversial involvement in the Jatiya Party and politics in Bangladesh. In 2016, the applicant came to Australia to undertake university studies. Concerned about his mother’s poor health and the harm that may come to his parents as a result of his father’s political involvement, he travelled home on three occasions to see them. On the third occasion, in the latter part of 2018, the political volatility in Bangladesh and risks to his father were heightening; it was a threat of harm directed at the applicant that was the trigger for him to return to Australia and apply for protection.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
Application for a protection visa lodged 11 March 2019.
(Translated) list titled ‘[title]’ dated 3 October 2013 on which the applicant’s father appears as [Position 1].
Various photographs each including the applicant’s father, relating to the claims of his political involvement in Bangladesh.
(Translated) letter dated 3 October 2016 from Hussain Muhammed Ershad, former President of Peoples Republic of Bangladesh and Chairman of the Jatiya Party, to the applicant’s father, [Position 1] of the Jatiya Party acknowledging his contribution to and role in the party.
(Translated) letter dated 5 June 2018 from the applicant’s father to the [City 1] police advising his receipt of threats for his political activities and requesting to file a Diary Entry.
(Translated) letter dated 15 July 2018 from the applicant’s father to the [City 1] police requesting police protection for himself and his family as a result of assaults and harm by opposition party members at a public meeting.
(Translated) undated and unsigned letter apparently intended for the applicant’s father warning him to step away from politics if he wants to protect his only child, and sending a shroud cloth for his son.
(Translated) letter dated 26 December 2018 from the applicant’s father to the [City 1] police referencing the previous threat by letter and requesting to file a Diary Entry.
Various (translated) [City 1] police complaint and investigation documents dated 2013, 2014 and 2018 naming the applicant’s father as a co-accused in a number of criminal matters.
Various medical records dated 2016, 2017 and 2019 relating to the applicant’s mother [Body part 1] condition and leg injuries.
Submission dated 19 December 2019 by Results Migration addressed to the Department of Home Affairs addressing issues raised in the applicant’s interview with the Department, including the applicant’s parents’ travel to India, his father arrest and imprisonment history, First Information reports and General Diary entries, hospital visits by the applicant’s parents after the December 2018 attack, news coverage of the applicant’s father’s political involvement, threats made against family members of other Jatiya Party members, unpaid student fees relating to the applicant’s study in Australia, timing of lodgement of the protection visa application, and the chance of harm if the applicant is returned to Bangladesh, enclosing various annexures including photographs each including the applicant’s father in relation to the claims of his political involvement in Bangladesh, police documents previously referred to, and a (translated) report by the applicant’s father published [in] October 2019 condemning threats by local Awami League leaders and declaring that he will fight for the nation and the wellbeing of people.
Other departmental records:
13.1.Decision record relating to the delegate’s refusal decision dated 31 December 2020.
13.2.Interview audio file.
13.3.Case file.
13.4.Internal records relating to the applicant.
Application for review
Application for review lodged 22 January 2021 enclosing the decision record relating to the delegate’s refusal decision and the Department’s notification.
The Tribunal wrote to the applicant’s representative on 3 March inviting the applicant to attend a hearing on 24 March 2023 and to provide pre-hearing submissions. The Tribunal was subsequently notified that the representative was no longer acting for the applicant.
Prior to the hearing, the applicant provided to the Tribunal:
16.1.Confirmation that the applicant intended to participate in the hearing without the assistance of an interpreter or a representative.
16.2.Statement (13 pages, in English) by the applicant setting out his claims for protection and fears of harm if he returns to Bangladesh.
16.3.(Translated) First Information Report, Petition and General Diary Entry by the applicant’s father to police dated 2 January 2021 in relation to an attempted kidnapping the day prior when the applicant’s father was attending a Jatiya Party meeting.
16.4.(Translated) applications for General Diary Entry by the applicant’s father to police relating to a threatening letter received on 23 March 2021.
16.5.(Translated) press release dated 19 April 2022 by [Mr A], [Position 2], Jatiyo Party confirming the applicant’s father as co-convenor of [a] Committee and related letter to the Convenor/Member Secretary confirming that the Chairman had approved [the] Committee to be finalised by 22 November 2022.
16.6.(Translated) letter dated 30 April 2022 from the applicant’s father and the other co-convenor of [a] Committee to the Chairman and General Secretary of the party confirming the submission of names of members for the [the] Committee (including the applicant’s father as [Position 3]) and requesting approval.
16.7.(Translated) undated letter from [Mr A], [Position 2], Jatiyo Party, to the applicant’s father, [Position 3], [City 1], Jatiyo Party, sending condolences on behalf of the party chairman and general secretary for the fire at the applicant’s father’s business.
16.8.Various (translated) undated news reports of the fire at the applicant’s father’s business, and referencing his position in the Jatiyo Party.
16.9.(Translated) undated news report of a gun attack at public Jatiya Party meeting where the applicant’s father was giving a speech, and referencing his position in the Jatiya Party.
16.10.Various other (translated) historical news reports naming the applicant’s father and referencing his involvement in the Jatiya Party.
16.11.(Translated) letter dated 27 October 2022 from [a named] MP, [Jatiyo Party] to the President/Convenor/General Secretary/Member Secretary, [City 1], District Jatiyo Party regarding observing Democracy Day on 10 November.
16.12.(Translated) letter dated 13 November 2022 from [a named] MP, [Jatiyo Party] to the President/Convenor/General Secretary[Position 1]/Member Secretary, [City 1] Metropolis, District Jatiyo Party regarding observing National Day on 6, 14 and 16 December.
16.13.Various photographs each including the applicant’s father, relating to the claims of his political involvement in Bangladesh.
16.14.Letter dated 22 March 2023 from the applicant to the Tribunal enclosing psychologist and chiropractor reports in relation to the applicant and links to various Bangladesh country information.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 24 March 2023. The applicant confirmed that he did not require an interpreter, and he was appearing without representation. The hearing was conducted entirely in English.
The Tribunal acknowledged the applicant’s comprehensive written statement and considerable amount of material submitted in support of his case. The Tribunal explained to the applicant that, in addition to the evidence about what had occurred in the past in relation to his father’s political activities in Bangladesh, it needed to understand his father’s current circumstances in Bangladesh, in order to make an assessment about the future.
The applicant gave the following evidence:
19.1.The applicant is an only child, and close to both his parents.
19.2.The applicant’s parents live together in [City 1], Bangladesh. His father is aged [age] and his mother is [a few] years younger. His mother has had problems with her [Body part 1] following complications from [a] surgery, and requires ongoing treatment. His father has a latent form of diabetes and experiences pain and poor function in his left shoulder as a result of multiple physical attacks on him over the years. Both his parents suffer from high blood pressure and anxiety.
19.3.The applicant’s father has always run his own [business]. He also inherited rural land, which is leased out to farmers for cropping. His father has a contractor licence, which is granted by the government when considered in political favour; this has allowed him to get lucrative government tender work.
19.4.The Tribunal asked the applicant to talk about the Jatiya Party. He explained its structure and reach across Bangladesh: there is a central committee with a president, general secretary and advisers; then divisions, with metropolitan and rural districts, each having a president and general secretary. He also gave a well-informed overview of a volatile central committee, significant power and property disputes between the party factions, and expired metropolitan and rural districts leading up to and following the death of party chair and former president of Bangladesh in 2019.
19.5.The applicant’s father has served as a [Position 1] in the [City 1] division over long career with the party. In April 2022, a new convention preparation committee was convened; this is the precursor to the full convention committee. He thinks the next convention is in May when the members of the full committee will be declared. It is expected that his father will be declared [Position 1] of the [City 1] division, however until that time he is a [Position 3]. Once declared, his father and the division district president will select people for the various roles. The president and [Position 1] are powerful roles because they make recommendations to the party’s central committee, including for the party’s parliamentary candidates.
19.6.The applicant explained that his father had been suspended from the Jatiya Party a number of times over his political career, around 14 to 15 years ago. His father publicly went against the directions of the central committee, and some party members paid bribes to have him removed. He would receive a suspension notice, then have to apply to clear his name.
19.7.Due to the Awami League (AL) being in power, those holding contractor licences are largely AL aligned, however within that some are Jatiya party aligned. It is big business. In the [City 1] mayoral election in early 2018, the contest was between the AL and BNP candidates; the then Jatiya president directed the central committee to support the AL candidate. The applicant’s father, however, gave his support to the BNP candidate, which stemmed from the beating of Muslim scholars in Dhaka in 2014. There were internal repercussions for his father after the 2018 mayoral elections, however, strangely, he wasn’t suspended, and he’s managed to retrieve his position and influence in the party in the years since.
19.8.The applicant isn’t sure when the next Bangladesh national elections will be held as the government has not yet declared them; they could be in December 2023 or January 2024, but he’s not sure of the procedure.
19.9.Jatiya Party allegiances are not clear in the lead up to the elections. The party is like a pet to the AL government; allegiance buys benefits. For AL to maintain its international network of support, and to be seen as legitimately holding power, they need the opposition party also to be seen as legitimate. In general, people want to remain in power so they can keep getting the financial and other benefits for themselves and their families; rarely do they care about the ideals of the party. If someone isn’t getting a benefit from the government, and someone else is, they are likely to retaliate or switch their allegiance to another party. The system is based on the generation and maintenance of self-interest.
19.10.The applicant’s father holds an anti-government stance aligned with the Quader faction, which is the opposing stance from the Rowshan faction. His father is seen as someone radical who speaks out against wrongdoing; he believes there must be a fair election. Because of this, some people with benefits would perceive that his father is putting their benefits at risk. His father’s enemies are anyone who is benefiting from the government or wanting to be in an alliance with the government.
19.11.The applicant’s father will be confirmed as [Position 1] because he has Quader’s support. Quader is strengthening his faction by bringing together rich tycoons and radicals. His father is outgoing and heroic, he is radical with justice, adamant and stubborn, outrageous and ferocious, and he won’t be shut down. Even his father’s hair has caused a lot of problems: he has always waved it about when under attack, and people have threatened to cut it off. His father is critical to the dominance of the Quader faction. He will never leave politics in Bangladesh; he is too committed and respected.
19.12.The applicant’s mother has never been involved in politics, however she has always been there supporting his father through his political career. She moved from [Country 1] to Bangladesh when they married; she gave up everything to be with his father. His father would be nowhere today without his mother. They have a love marriage. His mother’s health limits what she can do now; she is too unwell to visit her elderly and sick parents in [Country 1].
19.13.Last year, there was a fire in one of his father’s warehouses. It happened in the middle of the night close to the time that the central committee was visiting. There had been open fighting between the Quader and Rowshan factions before the announcement of the convention committee. Produce and stock were destroyed, his father lost a lot of money. His father filed a complaint with police; they say they’re investigating, but there’s no action, it just drags on. The applicant would like to believe in the justice system, but AL has been in power for so long. When he was young and they received threats of harm and kidnapping if they didn’t donate to the Sherpa Party, the police responded and apprehended the perpetrators. Since 2014 there has been a decline in the police and authorities; many officers have been transferred out and replaced with young people from Chhatra League, AL’s student wing.
19.14.The applicant talks to his mother as much as possible. His father is on the move a lot doing party business and his own business. They are expecting trouble around the May convention because of the strong opposition between the Quader and Rowshan factions. His parents can’t afford personal protection given the money they lost due to the fire and the burden of legal fees associated with handling the various police and court matters involving fabricated charges and allegations against his father. They have asked the police for protection multiple times, but the police minimise and ignore their concerns. When his father is away, his mother often stays with his father’s brother, however the applicant thinks his father’s family are upset with his political activities because it puts them all at risk. Sometimes his mother goes to stay in rental properties they own where she is welcome. The party’s central committee doesn’t provide any protection, however when his father attends big party meetings, there is strength in numbers with his party colleagues. Police come knocking on the door accusing his father of wrongdoing as often as his father makes complaints to police about wrongdoing against him.
19.15.The Tribunal asked the applicant to explain the various police and court documents that he had submitted to the Department and the Tribunal. He said he has no understanding of how the law operates; his father’s lawyer in Bangladesh handles all of those matters for his father. The Tribunal asked the applicant if it would be possible to get a letter from his father’s lawyer that explained the professional relationship, provided context to the cases against his father, and gave an overview of the status of the cases. The applicant said he could provide such a letter and asked for one week post hearing (31 March); the Tribunal agreed to the applicant’s request.
19.16.In the latter part of 2018, the applicant took a second leave of absence from his education studies in Australia to be with his mother through some medical treatment as his father was too busy with his political commitments. From Bangladesh he travelled to [Country 1] for three weeks to visit his maternal grandparents because they are elderly and sick and his mother wasn’t able to travel. It was a few days after he had returned from [Country 1], on 26 December, that the threatening letter and shroud (referred to in paragraph 8) was delivered to his father. The applicant and his parents felt very scared, and at the time, his father was also receiving harassing phone calls. They decided the applicant should return to Australia as soon as possible. He was to stay on in Bangladesh until the end of January or early February 2019 then return to his studies, however he flew back to Australia on [date] January. His father reported the letter to the police, however they say they’re still investigating.
19.17.When the applicant returned to Australia, he didn’t have anywhere to stay, he was at a loss to know what to do, he was very worried about harm coming to his parents, he wasn’t in a fit state to continue his studies and, with very little money, he was unable to pay his course fees. He managed to get cheap accommodation at a backpacker’s, then started working on applying for a protection visa. There was a delay in lodging the application because his lawyer went on maternity leave and it took a long time to get English translations of documents in Bangladesh.
19.18.The applicant spoke to the Tribunal about the physical and mental toll his father’s and therefore his parents’ circumstances continues to have on him both because of the threats against him directly and worrying about his parents safety and wellbeing due to his father being a political target. The applicant also spoke about being exploited and abused by an employer in Australia and the stress of seeking legal recourse.
19.19.The applicant has never himself been involved in politics in Bangladesh. He’s only been implicated because of his father’s political role and activities. He uses [social media], but he would never post anything about his parents.
19.20.The applicant can’t return to Bangladesh, the situation is too volatile and widespread, and made worse by the impending elections. The son of one of his father’s colleagues has been killed in the past. The applicant is the only child, threats have already been made, he is known to his father’s enemies, and is the weak point for his father if he goes back. His father can’t protect him, and even worse if his father ends up going to prison on the fabricated charges. He doesn’t have a passport, so as soon as he arrives in Bangladesh, a notification will go straight to police and others will be alerted to his return. He needs to be safe, recover mentally and physically, and get an education as he has always planned; and his father needs to win the cases against him. His parents are aware he is seeking protection in Australia.
Post-hearing submissions

On 26 March 2023, the applicant provided to the Tribunal a letter in English from his father’s lawyer in Bangladesh, [name], setting out the following:
-An introduction and explanation of his relationship with the applicant’s father;
-A brief context for the nature of cases filed against the applicant’s father
-Charges filed against the applicant’s father;
-Outcome and stages of proceedings at court;
-What to expect – summary.
Relevant country information
The November 2022 DFAT Country Information Report for Bangladesh states (inter alia) that:
21.1.[3.65] Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
21.2.[3.67] Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
The September 2020 UK Home Office Country Policy and Information Note – Bangladesh: Political parties and affiliation states (inter alia) that:
22.1.[3.3.3] Bertelsmann Stiftung’s Transformation Index (BTI), a think-tank, which assesses the transformation toward democracy and a market economy as well as the quality of governance in 137 countries, noted in its BTI 2020 Country Report for Bangladesh, covering the period 1 February 2017 to 31 January 2019: ‘Power is concentrated in the hand of the prime minister, who enjoys unquestioned authority. Her position both as president of the party and as prime minister helps her to control the party’s parliamentarians. The system of governance is based on political patronage, and each minister’s ability is evaluated on the basis of his or her loyalty to the political leadership and the party. For the purposes of day-to-day administration, the government depends on the bureaucracy, which itself is highly politicized, as appointments and transfers are made by the government. Given the patronage structure, the police force also has developed a stake in the continuance of [Awami League] AL in power. The military, which has the ability to challenge the government, is kept happy with a large defense budget and is allowed to procure advanced military hardware. As the Awami League is in power for the third time in succession, it needs a strong patronage-based system to survive in power. Without the support of the police and bureaucracy, it would have been difficult for the AL to win the election. Given the support that the ruling regime received from the administration in winning the election, the military and police would be in a position to exercise veto power to protect their institutional interests and develop a sense of impunity. The pre-election alliance with one of the fundamentalist groups, the Hefazat-e Islam, has strengthened this group, which will work to veto any government decision that might violate its idea of Islam.’
22.2.[6.1.1] A working paper, which explored the functioning of political parties in Bangladesh, written by Rounaq Jahan and published in 2014 by the Centre for Policy Dialogue (CPD) and Chr. Michelsen Institute (CMI) states that: ‘The constitution of Jatiya Party describes its key ideological principles as independence and sovereignty, Islamic ideology and freedom of all religions, Bangladeshi nationalism, social progress and economic emancipation. Ideologically, Jatiya Party is not very different in its orientation from the BNP. This is not surprising since its founder H M Ershad also came from military background and its front ranking leaders were drawn heavily from the BNP. […] in 1988, the Jatiya Party-led government incorporated Islam as the state religion through the eighth amendment of the constitution.’
[6.1.2] The Jatiya Party was part of the coalition Grand Alliance led by the AL in the 2018 elections, and secured 22 seats emerging as the second largest party. In January 2019, the Business Standard reported that leader of the Jatiya Party, H M Ershad, indicated that the party would ‘sever ties with the Awami League-led Grand Alliance’ and serve as the main opposition party. Ershad’s brother and co-chairman of the Jatiya Party, G M Quader, would act as deputy leader of the opposition. Moshiur Rahman Ranga was party secretary general. The USSD HR Report 2019 noted ‘Parliament conferred the official status of the opposition to the Jatiya Party…’
[6.2.1] Jahan’s 2014 working paper noted ‘Jatiya Party’s support base is similar to that of the BNP [cited in the working paper as ‘urban and higher income groups, particularly civil and military bureaucracy and business community’ 146]. It also has regional support in the northern districts which is the home of its founder, Ershad.’ According to the BTI 2020 report ‘The Jatiya Party and Jamaat-e-Islami [JI] have a combined support base of 10% to 12%.’
22.3.[8.1.5] The BTI 2020 report noted in relation to the 2018 elections ‘While AL and its allies won in 288 seats, the opposition received only eight seats, with the BNP having won six seats. The Jatiya Party, with 22 seats, is the official opposition, even though the party contested the election as an ally of the ruling party.’ The IRB query response noted that sources reported that the AL (leading the Grand Alliance) won 288 out of 300 available seats, while the BNP (leading as the NUF) won 7 seats .
22.4.[8.2.12] The USSD HR Report 2019 noted ‘During the [2018 election] campaign there were credible reports of harassment, intimidation, arbitrary arrests, and violence that made it difficult for many opposition candidates and their supporters to meet, hold rallies, and campaign freely.’
22.5.[9.2.1] According to the BTI 2020 Report ‘Law enforcement agencies are used as political instruments to silence the opposition.’
22.6.[9.2.2] According to the August 2019 DFAT report ‘Political and bureaucratic interference is a significant impediment to police efficiency […]. Both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests.’
22.7.[9.2.7] The ESID Working Paper noted that: ‘It is widely claimed that the police are increasingly direct AL members, particularly associated, in the case of recruits, with the Chattra League (student league). One way this has allegedly been achieved is through recruitment processes.
22.8.[10.2.1] The BTI 2020 Report noted ‘There is complete intolerance for any point of view that is seen as being in opposition to the government.’259 According to the Freedom House report, Freedom on the Net 2019, covering the period 1 June 2018 to 31 May 2019, ‘The ruling Awami League (AL) has consolidated political power through sustained harassment of the opposition and those perceived to be allied with it […].’
22.9.[10.2.3] According to a December 2018 Human Rights Watch (HRW), since the 2013 protests by the BNP and other opposition parties, who demanded the reinstatement of a caretaker government to oversee elections: ‘[T]he Awami League government has cracked down on the political opposition. Law enforcement authorities have illegally detained scores of opposition activists and held them in secret without producing them before courts, as the law requires. In most cases, those arrested remain in custody for weeks or months, before being formally arrested or released. Torture in police custody, including mutilations such “knee-capping” has been widely practiced. Others have been killed in so-called armed exchanges, and many remain “disappeared.” Many of these cases appear to have been politically motivated, sometimes targeting the relatives of political opponents.’
22.10.[10.2.4] The HRW report also noted ‘While the police promptly launched investigations and made arrests in attacks on the ruling party, it ignored complaints from the opposition.’
22.11.[10.2.6] The USSD HR Report 2019 stated ‘Human rights activists claimed police falsely constructed cases to target opposition leaders, workers, and supporters, and that the government used the law enforcement agency to crack down on political rivals.’
22.12.[10.2.7] The same report added: ‘Political affiliation often appeared to be a factor in claims of arrest and prosecution of members of opposition parties, including through spurious charges under the pretext of responding to national security threats. The opposition Bangladesh Nationalist Party (BNP) maintained that thousands of its members were arrested arbitrarily throughout the year, often in connection with planned and preauthorized political rallies in an attempt to both intimidate and prevent activists and political leaders from participating.’
22.13.[10.2.8] Reporting on allegations of false criminal cases being filed by police against opposition party members and supporters, a March 2019 VoA article noted: ‘Police in Bangladesh have filed criminal complaints against tens of thousands of people for violence-related cases in recent years. But the opposition and rights activists say most of the cases, allegedly involving bombing and rioting, were made up. ‘Opposition parties claim most of those targeted were their leaders, workers and supporters, and that the government used the law enforcement agency to crack down on its political rivals.’
22.14.[10.2.9] Human Rights Watch (HRW) noted in its annual report covering events in the election year of 2018: ‘Bangladesh continued a harsh crackdown to suppress those that disagree or are critical of the ruling Awami League. These included members and supporters of the political opposition, journalists, prominent members of civil society, as well as students, and even school children. [...] Thousands of opposition supporters, including senior leaders, faced trumped-up cases. Newspapers reported that even names of individuals who are dead or critically ill in the hospital were included in these arbitrary actions.’
22.15.[10.2.11] Human Rights Watch explained that: ‘Since the beginning of 2018, the authorities have dramatically increased the practice of filing false or fictitious cases against the government’s democratic opponents, primarily from the BNP. Typically, a single case accuses a list of named individuals, sometimes more than 100, of participating in a crime, plus an unspecified number of “unknown” perpetrators. Other people can then be added to the case later, if the police claim that they were among the earlier “unknown accused”.
22.16.[10.2.19] An October 2018 article by Deutsche Welle (DW) stated, ‘Filing cases against members of the opposition is a common practice in Bangladesh. On many occasions, courts dismiss cases for lack of legal merit.
22.17.[11.3.2] Referring to AL party members, the DFAT report noted: ‘Intra-party violence reportedly occurs regularly, including in the lead-up to the 2018 election and around sub-national elections and student organisation elections. Such violence is usually about disputes over candidate pre-selection or internal disputes between business people. While often described as “factional” violence, the factions may be personality or patronage-based rather than ideologically based. The rate of intra-party violence in the lead-up to the 2018 election was reportedly lower than in previous years. The party has strong disciplinary policies to deal with rogue candidates, and has used these policies on occasion to expel such candidates from the party. People involved in political disputes may be both the victims and perpetrators of violence.
Bangladesh daily newspaper, The Business Standard, provides detailed analysis of the economic and financial affairs of Bangladesh. The following article titled, “Jatiya Party drama again as parliamentary polls near?”, by Rezaul Karim was published online on 16 December 2022:
With around one year to go before the next general election in the country, the drama involving Jatiya Party has already started to unfold in keeping with the last five national elections' instances, political analysts believe.
During the national elections in 1996, 2001, 2008, 2014, and 2018, the Jatiya Party "drama" had its founder and then chairman late HM Ershad in the central role, but this time it's about the incumbent chairman of the party GM Quader.
Political analyst Dr Badiul Alam Majumdar said since Ershad was facing several cases, he used to decide which political alliance his party would join or support before a general election based on their calculations of which party might come to power.
Even though Jatiya Party took part in the 1991, 1996, and 2001 general elections independently, it supported the Awami League in forming the government in 1996. Therefore, Ershad and his party had to face quite a few problems after the BNP-led Four-Party Alliance came to power in 2001.
Jatiya Party joined the AL-led Grand Alliance before the 2008 elections and eventually joined the cabinet led by AL President and Prime Minister Sheikh Hasina after winning the elections.
Badiul Alam told The Business Standard that the cases filed over alleged corruption in the purchase of MiG-29 aircraft and radar were a big factor for Ershad in the 2008, 2014, and 2018 elections, because he might be given harsh penalties in these cases. Keeping that in mind, Ershad joined the Awami League-led Grand Alliance.
Badiul Alam thinks that dividing Jatiya Party into two camps and preventing the chairman of the party from fulfilling his duties by filing lawsuits seem to be a new tactic by the Awami League to keep Jatiya Party in check.
"Various recent statements of JaPa Chairman GM Quader give an indication that the party may not be with the Awami League in the next national elections. Again, the general secretary of the party Mujibul Haque Chunnu has spoken clearly about vote rigging and stuffing of ballot boxes on nights that allegedly took place in the last two national elections.
"Perhaps, that is why he [the JaPa chairman] is being put under pressure in many ways," Badiul said.
This is the first time in the history of Bangladesh that a political party leader has been prevented from performing his duties by a court order, added the political analyst.
After HM Ershad's death in 2019, his younger brother GM Quader took over as the chairman of the party.
But the party allegedly got divided into two groups under Quader and Ershad's wife Rowshan Ershad, and various activities of the two factions are now at the height of political discussion.
Meanwhile, on Wednesday night, one group suddenly announced Rowshan – key patron of the party and the leader of the opposition in the parliament – as the acting chairman of the JaPa, but the announcement was suspended one and a half hours later.
According to sources, earlier on Tuesday, Rowshan Ershad and GM Quader went to meet Prime Minister Sheikh Hasina at her office to resolve the ongoing disputes within the Jatiya Party, it is not yet known what the outcome of the meeting is.
JaPa Co-Chairman Kazi Firoz Rashid MP, told TBS, "During the times of Ershad, the Jatiya Party joined political alliances before or after the election due to its political policy. The party did not join any alliance in view of any pressure, and personal or party interests."
"But Awami League's behaviour with Jatiya Party after the 2018 elections was totally unexpected," said Firoz Rashid, adding, "Time will tell whether we will be with Awami League in the next election or not. Decisions will be taken considering all aspects including people's right to vote, and right to live a dignified life. And the decision of the party chief is final in this regard."
Speaking about barring the party chief GM Quader from performing his duties through court, he said, the party would still be run as per GM Quader's decision.
Mashiur Rahman Ranga, former secretary general of Jatiya Party who was recently relieved from all posts of the party, told TBS, "I am still with the Jatiya Party. I will work according to the decisions taken by the party before the election."
On the matter of preventing GM Quader from performing duties as Jatiya Party chairman by filing a case, he said, "This is a legal process. It is natural to take legal action against someone who violates the law. There is nothing else here."
Political analysts, however, said that Rowshan Ershad is known as an Awami League supporter in the Jatiya Party.
But as she is now politically inactive due to illness, many people think that the anti-Awami faction in Jatiya Party is getting stronger, they said, adding that in such a situation, various discussions are going on in the political arena about what will be the role of the Jatiya Party in the upcoming national elections slated for late 2023 or early 2024.
Awami League Joint Secretary General Mahabubul Alam Hanif told TBS that the Jatiya Party is still in the Grand Alliance.
"Despite being in the alliance, a clique in that party is engaged in various ill efforts to oust the government. They will conduct the proceedings as an opposition party, but they should also keep in mind how they have become the main opposition [in parliament]."
Political analyst and former election commissioner Brig Gen (retd) M Sakhawat Hussain told TBS that Jatiya Party has always played the role of a trump card in the national election, as a result, they also proceed with various strategies considering various issues.
Past experiences show that the Jatiya Party always takes decisions based on favourable conditions, he observed. On many occasions there were pressures on the party as well, he added.
He concluded that only time would tell whether the Jatiya Party's decisions ahead of the next general polls will replicate the previous ones.
The following article by Ali Asif Shawon was published online in the Dhaka Tribune on 20 September 2022:
The Jatiya Party (JaPa), the main opposition in parliament, is currently in a dilemma over whether it should continue with the ruling Awami League-led alliance at the next general election slated for 2023.
In a dramatic turn of events, JaPa Chairman GM Quader on Sunday said the party was no longer in any alliance, although he did not completely discount participating in the next polls alongside the Awami League again.
“If the Awami League does really good work, then we can stay with them as in previous times. But if the Awami League loses the trust of the people, then we cannot stay with them in the future,” said GM Quader at an event.
The JaPa chief’s recent statement drew attention from various political quarters as it followed shortly after the suspension of its presidium member Moshiur Rahman Ranga, also chief whip in parliament for the opposition, from the party.
Senior leaders of the Awami League said there was still plenty of time until the election, and JaPa may join the AL-led alliance at the last moment as it did ahead of the 11th general polls.
JaPa consists of several factions, and the top two are led by JaPa founder HM Ershad’s brother GM Quader and the late founder’s widow Rowshan Ershad. JaPa sources said the current shake-up within the party began when Rowshan, leader of the opposition in parliament, called for a council of the party in Bangkok, where she is currently undergoing treatment.
After Rowshan called for the council and formed a council preparation committee, GM Quader urged the speaker of parliament to remove Rowshan from her parliamentary post. He also suspended Ranga and Ziaul Huq from the party.
When asked about the remarks of JaPa Chairman Quader regarding political alliances, Awami League Joint General Secretary and Information and Broadcasting Minister Dr Hasan Mahmud told Dhaka Tribune JaPa was part of the AL-led electoral alliance in both the 2014 and 2018 elections. However, he pointed out, the alliance was strategic and not purely electoral in 2014.
“At the last press conference, our party president and Prime Minister Sheikh Hasina cleared our position, saying that our door is open to all,” Mahmud said on Sunday.
Awami League General Secretary Obaidul Quader recently said JaPa leader GM Quader will decide which electoral alliance the party will join.
“We have nothing to say about this,” he said.

The January 2017 Australian Department of Immigration and Border Protection Issues Paper – Bangladesh: Political violence involving Awami League and Bangladesh Nationalist Party supporters 2014-2016 states (inter alia) that: according to an October 2015 article in the journal Commonwealth and Comparative Politics, a number of systemic factors influence the level of electoral violence in Bangladesh:
§ ‘The system provides non-inclusive democracy through which part of the population could be alienated or marginalised’. Further, ‘the incumbent government usually attempts to arrange elections in such a manner that the main opposition is out of the race.’
§ There is ‘political and economic insecurity for the losers’ and a winner-takes-all approach, which leads political parties to ‘fear losing elections as they will be vanquished.’
§ …the rule of law has turned into personal rule’, including the ‘establishment of a very partisan police, military, and bureaucracy that is loyal only to the government, not to the people.’
§ Loyalty is rewarded above efficiency. To show loyalty, police and administrative officials will act in a biased way including by failing to take action against violence by members of the elected government.
§ ‘Bangladeshi politics can be characterised by fear and insecurity. As in other conflict-ridden societies, this kind of politics often increases the acceptance of coercion, threat, and intimidation by creating a ‘culture of violence’.
§ There is a ‘culture of impunity’ in Bangladesh which ‘enables the use of political violence in general and electoral violence in particular.’
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considers the applicant’s claims and oral and written evidence comprehensive and credible, consistent with the relevant country information, and strongly indicative of a deep and nuanced understanding of politics in Bangladesh and the role of the Jatiya Party based on his observations of his father’s involvement in the party and the impact of that involvement on his father, mother, himself, and other family members.
With reference to the applicant’s evidence and the relevant country information, and directly relevant to the applicant’s claims, the Tribunal accepts:
27.1.The applicant’s father is in a position of influence and authority within the Jatiya Party and has been actively involved with the party and politics in Bangladesh for several decades.
27.2.The Jatiya Party’s opposition status in the Bangladesh parliament and history of shifting power alliances between the major parties, the ruling Awami League (AL), and the Bangladesh Nationalist Party (BNP), means that a person in a position of influence and authority in the Jatiya Party such as the applicant’s father, is likely to be the target of ongoing threats, harassment and violence from those within the Jatiya Party, and also in the AL and BNP, seeking either to override his influence and authority or to secure his favour, and this state of affairs is likely to be exacerbated in the lead-up to the Bangladesh national elections, which are due to be held in late 2023 or early 2024.
27.3.The various accounts of threats, harassment, violence and property destruction by fire experienced by the applicant’s father over many years described in the applicant’s oral and written evidence.
27.4.The applicant’s father has on many occasions filed complaints with police in relation to the threats, harassment, violence and property destruction by fire, however there is no evidence of any action taken against the perpetrators.
27.5.The veracity of the threat directed at the applicant made by letter to the applicant’s father in late December 2018 (referenced in paragraph 8).
27.6.The applicant’s father filed a complaint with police in relation to the threat directed at the applicant, however there is no evidence of any action taken against the perpetrator.
27.7.The applicant returned to Australia on[date] January 2019, a month or so earlier than planned, as a result of the threat directed at him, and his growing fear of his life being endangered as a result of his father’s position of influence and authority in the Jatiya Party and his associated political activities.
27.8.The veracity of the details set out in the letter from the lawyer for the applicant’s father (referenced in paragraph 20).
27.9.The applicant’s father has over many years been the subject of falsified and politically motivated charges and allegations, including possession of weapons and explosive substances, disturbance of the peace, attempted murder, and creating terror in public; and has, when unable to successfully defend, served prison time.
27.10.There is a number of ongoing falsified and politically motivated cases against the applicant’s father currently under investigation and before the courts, the outcomes of which are unpredictable, however if not successfully defended, he is at risk of long-term imprisonment.
27.11.The applicant’s father has on many occasions sought protection from police for himself and his wife, however it has not been afforded.
27.12.The applicant’s father’s position of influence and authority in the Jatiya Party and his associated political activities are not limited to the geographical region of the [City 1] district, rather they extend throughout the country.
27.13.The applicant’s father is committed to his political career in Bangladesh.
27.14.The applicant has never been personally involved in the Jatiya Party or politics more broadly in Bangladesh.
27.15.The applicant is known to his father’s political opponents, and is known to be his only child.
27.16.The applicant has, and continues to suffer, physically, mentally and emotionally as a result of witnessing and being aware of the threats, harassment and violence experienced by his father, and the threats directed at him personally.
Other considerations
In considering the claims and evidence, the Tribunal has also taken account of:
28.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
28.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Findings of fact
Based on the consideration of claims and evidence, and taking into account the relevant country information and other considerations, the Tribunal finds that:
29.1.The applicant is a citizen of Bangladesh.
29.2.The applicant fears that if he returns to Bangladesh he will be the target of threats, harassment and violence from his father’s political opponents by reason of his father’s position of influence and authority in the Jatiya Party and his associated political activities.
29.3.If the applicant returns to Bangladesh, there is a real and not remote chance that within the reasonably foreseeable future he would be a target of threats, harassment and violence from his father’s political opponents by reason of his father’s position of influence and authority in the Jatiya Party and his associated political activities.
29.4.If the applicant returns to Bangladesh, and his father is imprisoned as a result of unsuccessfully defending the falsified and politically motivated cases against him, it is likely, as a consequence, the applicant would become even more exposed as a target of threats, harassment and violence from his father’s political opponents, and would suffer significant economic hardship.
29.5.If the applicant returns to Bangladesh, it is unlikely he would avoid or lower the prospect of being the target of threats, harassment and violence by living outside the [City 1] district.
29.6.If the applicant returns to Bangladesh, it is unlikely he would be afforded police protection or have access to any other form of protection.
29.7.If the applicant returns to Bangladesh, he would be unable to modify his behaviour to avoid being a target of threats, harassment and violence from his father’s political opponents as his vulnerability to such harm arises from being the child of their opponent.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
Based on the findings of fact:
31.1.The applicant is a non-citizen in Australia.
31.2.The applicant fears being persecuted in Bangladesh by his father’s political opponents for a political opinion imputed to him as the child of their opponent.
At page 45 of Chapter 5 of the Guide to Refugee Law: …a political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor.[1] In Saliba v MIMA the court held:
[1] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416, 433
…for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[2]
31.3.There is a real chance that, if the applicant returns to Bangladesh, he would be persecuted for his imputed political opinion.
31.4.The persecution would involve serious harm to the applicant.
31.5.The real chance of persecution relates to all areas of Bangladesh.
31.6.There are no effective protection measures available to the applicant in Bangladesh.
31.7.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Bangladesh.
31.8.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
31.9.The applicant is outside Bangladesh, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Bangladesh.
31.10.The applicant does not have a right to enter and reside in, temporarily or permanently, any country other than Bangladesh.
[2] Saliba v MIMA (1998) 89 FCR 38 at 49
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
ATTACHMENT B
Relevant Country Information

[2023] AATA 1843

3 April 2023

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