2112327 (Refugee)

2112327 (Refugee) [2023] AATA 751 (25 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Abu Siddque (MARN: 0901413)
CASE NUMBERS: 2112327
1904658

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Melissa McAdam
DATE:25 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 25 January 2023 at 10:59am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political profile – an active BNP supporter – clearly contradictory evidence regarding family’s political background – Tribunal does not accept he was ever a supporter, activist, or member of the BNP – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 411, 427, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Bangladesh.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Immigration History
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] February 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 21 May 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 14 April 2016. That application was not subject to the s 91K bar and was a valid application. The Minister then purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise visa made on 18 September 2020 which was also valid.
The first application for a Safe Haven Enterprise visa on 14 April 2016 was refused by the delegate on 13 February 2018. The delegate refused to grant this visa on the basis that he was not satisfied the applicant met the criteria for the grant of the visa. The applicant was validly notified of this decision on 15 February 2019. A valid application for review of that decision was made on 28 February 2019.[1]
[1] AAT Case Number 1904658
The second application for a Safe Haven Enterprise visa on 18 September 2020 was refused by the delegate on 30 August 2021. The delegate refused to grant this visa on the basis that that she was not satisfied the applicant met the criteria for the grant of the visa. A valid application for review of that decision was made on 14 September 2021.[2]
[2] AAT Case Number 2112327
Under s.427(2) of the Act the Tribunal must combine the reviews of two or more Part 7-reviewable decisions made in respect of the same non-citizen. The Tribunal has therefore combined the applicant’s two review applications.
The applicant was represented in relation to the reviews.
Information in the applicant’s Protection visa applications
First Protection visa application, 11 April 2016
In his first Protection visa application the applicant provided the following additional information:
a.The applicant was born in [year] in [Meherpur] in Bangladesh. He lived there until 2005/2006.
b.He lived in [State 1], [Country 1] from approximately 2006 until 2013 when he travelled to Australia.
c.He worked as a farmer in Bangladesh and as a factory worker in [Country 1].
d.He is Sunni Muslim and never married.
e.His father, mother, [and number of siblings] live in Bangladesh.
f.In Bangladesh he was involved with the Bangladesh Nationalist Party politics (BNP). He was the victim of political harassment. He received death threats from the local Awami League worker supporter. Awami League is the government. They tried to destroy all the opposition party leaders, active worker and supporters. They tried to kill the applicant several times so he left his country for fear of persecution.
g.He believes from his past experience that he will be harmed and mistreated by the Awami League government and its supporters if he goes back to Bangladesh. He had a bitter experience in the past and it’s a common tendency in Bangladesh that with the illegal support from the police the government party members harass the opposition party members.
h.The Awami League supporters tried to kill the applicant several times. Once they beat him mercilessly on the way to his home from a party meeting and another time they attacked him and others on a peaceful party rally. They beat the applicant and left him on the road.
i.The applicant and his family went to the local police station to lodge a general diary against the Awami workers, but the police officer refused to take the GD and said that he can’t accept any complaint against the government party workers or supporters.
j.The applicant moved to Dhaka for the safety of his life but some of the Awami League workers there identified him. They started to threaten to kill him. He found no security in Dhaka. He started an escape route to leave Bangladesh. He left Bangladesh in approximately 2006.
k.He believes from his past experience that he will be harmed and mistreated by the Awami League government politicians, workers and supporters, if he goes back to Bangladesh
l.With the illegal support from the police the government party members harass the opposition party members. There is no authority that will protect him if he returns to Bangladesh.
m.He cannot relocate to another area in Bangladesh because wherever he goes he will have the same problem. The Awami League government has a strong network all over the country and they will find the applicant.
Written Statement, 6 November 2017
On 6 November 2017 the applicant provided a further written statement to the department, as follows:
… Due to my personal reason and financial problem I only completed year [level] from [a] High School.
My family was not directly involved in politics. We used to work in our own farm - we produced rice and wheat. We are very poor so I was forced to start work at very early stage of my life along with my other family members. So we all were busy with earn our livelihood.
Besides my work, I started working for Bangladesh Nationalist Party (BNP) in 2005. I devoted me myself for local BNP. My activities are influenced by the BNP ideology: All out faith and confidence in the Almighty Allah, Democracy, Nationalism, and Socialism of Social and economic justice are reflected in all spheres of national life. I was an active BNP supporter from 2005 in my local area. During this time, I increased my political activities for the local BNP. I participated in party rallies, functions etc. Whenever the party leaders call me I responded their call and worked with them. The local Awami League workers observed my activities and they do not like my activities. After spending a full five years in power, Begum Khaleda Zia the then Prime Minister of Bangladesh resigned from power and transferred the power to a care taker government led by the then president Eajuddin Ahmed, this caretaker government was not accepted by the Awami League led ally.
At the end of the year 2006, due to political unrest, Awami League workers start violence. The started to threat BNP supporters, workers and often they attacked the BNP supporters, workers with the indirect support from the local Awami minded thana / police. Then Awami cadres came to our house and threatened us that if we would not joined them then they would kill us. We went to police station but nobody listened to us.
During this time (in 2006), we arrange a party meeting in our union. During the party meeting, Awami league cadre attacked us. I was stabbed by knife. I got injuries in my thigh. Luckily I was survived that attack. I went to police station to make complain, but they also refused to take any complain. Awami cadres came to know this and got very angry with us. They told my father that they will kill me if I would continue my work with BNP. That's enough for us. My father wanted that I should leave Bangladesh for my safety. I started to look for an escape route from Bangladesh. My father contacted with the local man power businessman to help me to escape from Bangladesh. He said that he can help me to go to [Country 1]. I had no option to but to accept his offer. I agreed to his proposal. The agent arranged me a passport. At the end of 2006 (I cannot remember the exact date), I left Bangladesh to [Country 1].
I got shelter in [Country 1] and got a job there as a factory worker. My living and job in [Country 1] both are legal. But there are many Bangladeshi lives in [Country 1] and many of them are Awami league minded, they recognised me. They had connection with local police and gang (Tamil people). They made [Country 1] police and local gang after me. The local police started to harass me without reason Tamil people beat me whenever they found me. I started to fear for my life and started thinking to leave [Country 1]. I started to look for an escape route from [Country 1]. My uncle lived there. I discussed my situation with him express my intention leaves [Country 1]. My uncle contacted with a manpower businessman for me. I did not meet/ see the smuggler / man power businessman. The man power business man said that he can help me to go to Australia by boat. He also told me (through my uncle) that Australia is a peaceful country; they help the poor and give protection to the refugee (who left their country for fear of persecution). I was so happy that if I can reach Australia I will get my life security. I agreed to his proposal and paid him [amount] ([Country 1] Currency) before I on board of the boat.
After my departure from Bangladesh, a political change came into effect. In the meantime on 5 January 2014 a parliamentary election was held in Bangladesh under the shade of the current government. Awami League again formed government.
I did not mention the above fact before the Department of Immigration and Border Protection. As I did not understand the criteria of the protection visa besides I was scare in telling the fact as well as I was not in the situation to talk properly.
If I have to return to my country, I will have to face to imprisonment and torture and death will be my ultimate destiny. I keep contact with my family members about political situation in Bangladesh. I came to know that by this time Awami league formed the government for consecutive second time. …
Department Interview, 23 November 2017
The applicant was interviewed by a department delegate on 23 November 2017. Based upon an audio recording of the interview, the following is a summary of the information he provided in the interview:
a.He was born in [year] in Meherpur. He lived there until he was about [age] years old. He left in 2006.
b.He has a Bangladesh passport, issued in 2006, from his district. The name in the passport was [name]. He used the passport to go to [Country 1]. Then he threw the passport away. His company took it away from him. This was common for the company to take away the passports of Bangladeshis. They refused to return them.
c.He left Bangladesh in 2006 because he had a visa to [Country 1]. He has a niece in Australia who contacted an agent and informed the applicant the process of how to come to Australia. He travelled to Australia by [boat]. His niece was not in Australia. She was and is in [Country 1].
d.He has not travelled to any other country. He can speak Bengali and [Country 1] language. He is Muslim.
e.His parents live in Meherpur. He has [number of siblings]. They are all in Bangladesh in Meherpur. He is in regular contact with his parents in Bangladesh.
f.He went to school to year [level]. He was not employed in Bangladesh. He was employed in [Country 1] for low pay. He could not make savings. This is why he left [Country 1]. He has not been employed in Australia because he had surgery in both his legs. He had clots in his veins. He could not walk or stand for a long time.
g.Around 2005 and 2006 the applicant was involved with the BNP and would attend their processions and gatherings. He was not a member of the BNP. His family were involved with the BNP. His father and father’s brothers are all connected to the party. They were in politics for a long time. The applicant’s uncles were members of the BNP. The applicant’s father was not a member but would attend BNP meetings with the uncles.
h.The applicant’s father was involved with the BNP since 2000. He would just attend the processions, protests and gatherings. There is nothing more the applicant wants to say about his father and the BNP.
i.The applicant’s father did not have any discussions with the Awami League. He would attend processions on behalf of BNP which the Awami League did not like. The Awami League decided not to let the applicant’s father support BNP, because his father was a strong supporter. They wanted to create unrest between the two parties. They did not do anything to the applicant’s father. The applicant’s father is cautious so they could not do anything to him. Nothing has happened to the applicant’s father.
j.No one else in the applicant’s immediate family is involved in the BNP.
k.The applicant was a supporter of the BNP but had no specific role in the party. They would just call him if there was any particular event or meeting. The meetings were in the village in the BNP office. A lot of people would attend, maybe one to two hundred. They would call the applicant and other supporters to attend but they would not discuss anything with the supporters. They would not discuss political things with the supporters. Sometimes they would tell the supporters they had to go to a demonstration. The meetings happened about once a week. This was between 2005 and 2006.
l.The applicant doesn’t remember how many meetings he attended. It was at least ten times. He attended maybe ten to twelve protest rallies. They would protest against the opposition party about issues. Sometimes if there was fighting between the parties and BNP people got hurt they would protest against this. Or if they didn’t like a government action they would protest. For example in 2006 there was a caretaker government which took over the power and the BNP had no power so they protested in a rally. The rally was in Meherpur town. The applicant attended the rally. A lot of people would attend, sometimes one thousand. He would hang around with the leaders. They chanted slogans. The Awami League people were not there. The rally was not violent, nothing happened, there was no problem. The applicant was not involved in any discussions or approaches with the Awami League. He confirmed he had no discussions or approaches from the Awami League.
m.The applicant has a scar on his leg. He was a supporter and he was in a procession. There was a conflict and fighting with the Awami League and they started throwing bricks. The applicant was injured by this. He was taken to hospital and treated. Those people went to his father and told them the applicant had to join the Awami League or they would kill the applicant. So the applicant’s father arranged for the applicant to go to [Country 1].
n.The applicant had no other contact with the Awami League in Bangladesh. The applicant was a popular supporter of the BNP so the Awami League told the applicant’s father the applicant had to change his support to the Awami League. This was a separate incident which happened before the accident. The delegate asked why they talked to the applicant’s father not directly to the applicant. The applicant responded that he was a supporter and they didn’t like him so they told his father. The delegate put to the applicant that his father was also a supporter. The applicant responded his father did not go to as many processions, and the applicant was also at the front in the protests. The delegate put to the applicant that he had been a supporter for the BNP for only 12 months while his father was a supporter for many years. The applicant responded he was very popular and went to so many protests and meetings regularly.
o.The delegate put to the applicant that he provided a statement to the department in 2013 that his father had a shop he stayed in. The applicant stayed in the shop. As a person from a middle class family their financial situation was not so good, but the business was going well. One day some terrorists came into the shop asking for a donation. They threatened the applicant. The applicant didn’t want to pay them so went to the police and got them arrested. After they were arrested other members of the terrorist group were looking for the applicant. He realised it was not safe for him and this is why he left Bangladesh.
p.This happened in around 2003. The delegate asked him if the terrorists went to the shop and the applicant had them arrested in 2003 and the applicant responded yes, 2003. It was a grocery shop. After this the other members of the terrorist group threatened to torture and kill the applicant so then he decided to leave Bangladesh. This was in 2003. They are still looking for the applicant and the people arrested are now out so it is not safe for the applicant in Bangladesh. There were no other incidents that happened at the shop.
q.In [Country 1] the Awami League had an office. The Awami League contacted the Tamils in [Country 1] and asked them to kill the applicant. The applicant learned of this and told his uncle who made arrangements for the applicant to go to Australia.
r.The delegate put to the applicant that he was recorded as saying to a department case manager in April 2013 that he had no visa in [Country 1] and was there illegally for seven years. The applicant responded he stayed in [Country 1] for seven years, he was there legally at first. But because the company was not good he became illegal, in around 2000 something, he can’t remember the year.
s.The delegate asked why he said he was not politically involved in any party at his entry interview. The applicant responded he thought Australia was a good country and if he told the truth he may be sent back so he didn’t say anything.
t.The delegate put to the applicant that in April 2013 he said that his father was involved in the BNP but in his statement in November 2017 he wrote that his family was not involved in politics. He responded that because his father is now old he is no longer involved in the political party. And because the applicant is outside Bangladesh he is no longer involved in politics.
u.The applicant did not mention the terrorists at the shop when he arrived because he was scared because of the terrorist group and was mentally disturbed by arriving by boat and was not feeling well.
v.The applicant cannot live anywhere else in Bangladesh because those persons involved with politics and the terrorists are everywhere. The applicant does not know who the terrorists are, how can he know.
w.If he returns to Bangladesh he thinks they will kill or harm him. The applicant can’t say who will do this, just the terrorists and those people who were against him.
Delegate’s decision, 13 February 2018

In the Department decision dated 13 February 2018 the delegate did not accept the applicant’s protection claims as credible. The delegate was not satisfied the applicant had a well-founded fear or persecution, or was at real risk of significant harm, on return to Bangladesh.
91L(1) and s 48B(1) notice
On 15 September 2020 the department notified the applicant that on 8 November 2019 the Minister made a determination under subsection 91L(1) that section 91K did not apply to an application for a visa made by the applicant in the period starting from the date of notification and ending at the end of the seventh working day after the notification. Further, the Minister also made a determination under subsection 48B(1) that section 48A similarly did not apply.
Second Protection visa application, 18 September 2020
Protection visa application form
On 18 September 2020 the applicant lodged another application for a Protection visa. In the application he wrote that he departed Bangladesh in January 2006, or in April 2006 but also that he started work in [Country 1] in March 2006. He provided a further written statement outlining the following:
I was born to a moderate Muslim family in Bangladesh. I arrived in Australia by Boat. I along with my family are active members of Bangladesh Nationalist Party and its associated organisations.
All my family members including parents and siblings are living in Bangladesh.
I was targeted by the local Bangladesh Awami League supporter’s for my involvement in the BNP politics. I received death threats and been advised to stay away from supporting BNP.
Failure to do so will result in my death. Following the death threat I along with my family went to the local Police Station to lodge a formal complaint against the Awami League supporters. But, Police refused to assist me as my complaint is against the Awami League.
Following this event I moved away from my village and moved to Dhaka. I could not find a security in Dhaka either I then finally moved to Australia.
I fear for my safety in Bangladesh. I know I will face serious harm if I return to Bangladesh. All our BNP members are now subject to torture and degrading treatment for their political belief. I know I am not safe in Bangladesh until Bangladesh Awami League is in the Government.
Department Interview, 16 July 2021
The applicant was interviewed again by a department delegate on 16 July 2021. Based upon an audio recording of the interview, the following is a summary of the information he provided:
a.The applicant went to [Country 1] in 2007, not 2006. The delegate put to the applicant that he had previously stated he went to [Country 1] in early 2006 and was employed in [State 1] from March 2006, and lived in [Country 1] from January 2006 to January 2013. The applicant agreed he had said this.
b.He probably went to [Country 1] in March 2006.
c.[He] lived in Meherpur. His parents and siblings still live there. His siblings are studying. He has [number of siblings]. His brothers are at high school and help their father in farm work. His two sisters are married and have their own families.
d.His family are still active in politics. His father was involved in politics but he has passed away. He passed away two days ago, on [date] July 2021.
e.The applicant was actively involved in a political group, the BNP. He is not involved in any politics or organisations in Australia.
f.The delegate put to the applicant inconsistent information the applicant had given previously since arriving in Australia. The applicant responded when he came to Australia he did not know anybody and was fearful if he said anything it would cause him problems. Mentally he had problems and was fearful of saying things and did not understand. The delegate put to the applicant a Bengali interpreter had been used in the past and the applicant had confirmed he had understood. He responded he did not know about things when he came to Australia and he thought his political story could cause problems. He was worried the Australian government would not let him stay in Australia.
g.He does not feel safe in Bangladesh. His life could be in danger there, because of his support for the BNP. He was in [Country 1] to try to support his family. It was difficult to renew his visa in [Country 1], his employer would not renew it. He did not feel safe to go back to Bangladesh so he came to Australia.
h.The delegate put to the applicant the information is different from his previous information, that he had left [Country 1] because he had been harassed and beaten in [Country 1] by Tamils who were connected to the Awami League. He responded that he had both reasons for leaving [Country 1].
i.If he returns to Bangladesh his life is in danger. He will be harmed by the Awami League because he was a BNP supporter. Even after 15 years because of political affiliations, his old political identity can cause problems.
j.He joined BNP in the year 2000. He had no role in the party. He held no official position. He was never a member of the BNP. He was an activist.
k.Since 2000 he was taking instructions from BNP local leaders, whatever actions were going on, he was participating. He would attend meetings where senior people would tell them what to do and he would listen. Sometimes weekly, fortnightly or monthly he would attend meetings, it was not consistent. He would be informed by his local leader of the meetings. In his area people know the applicant is a big supporter, everybody knows what is going on. The meetings were about how to improve the party and make it popular. There was nothing else. He was not involved in any other BNP activities.
l.The applicant participated in rallies. At the rallies they would walk in the street and chant slogans. They would say ‘our party is a good party, come and support our party’.
m.The applicant last attended a rally in 2005. It was a simple party procession.
n.The applicant likes BNP because BNP is a good party. It is a nationalist party. He does not know the BNP’s policies. The main goal of the BNP is to bring good things for the people and the county. He doesn’t know of anything else.
o.The delegate put to the applicant that he had previously stated he was with the BNP since 2005. The applicant responded it was a long time ago and he had forgotten.
p.The applicant can’t relocate to another part of the country because people in his area will know he has returned and locate him wherever he is. They hate BNP people.
q.In Bangladesh he heard people were planning to harm him and he left. Hs family tell him not to return to Bangladesh as he will face problems.
r.He left Bangladesh in 2006 because he heard news that some people were planning to attack him. He also wanted to make some money for his family.
s.The delegate put to the applicant that this information was inconsistent with his previous information. The applicant responded he had no comment.
t.There are no other reasons he can’t return to Bangladesh. Some things happened, his father has just passed away. The delegate requested a copy of the applicant’s father’s certificate. The applicant agreed to submit this.
On 19 July 2021 the delegate wrote to the applicant a ‘natural justice’ letter, setting out the following:
In accordance with section 57 of the Migration Act 1958, I am writing to advise you that
information has been received which a delegate of the Minister considers would be the
reason, or part of the reason, for refusing to grant a visa.
# You have provided inconsistent and differing statement about yours and your family’s involvement in politics in Bangladesh. During the Arrival Interview conducted on 15/02/2013
you claimed that you and your family had no involvement with any political parties or associations, in your written statement provided to the department on 03/11/2017 you claimed that your family was not directly involved in politics, however in your verbal testimony during the initial SHEV interview you claimed that your family was actively involved with the Bangladesh National Party (BNP). Please comment.
# You claimed in your initial SHEV interview that the last rally you attended was against the caretaker government being formed with AL in 2006. However I find the timeline of the protest is in contradictory to the time of your departure to [Country 1] and the subsequent period of employment and residence provided in your current SHEV application. It is noted that the transfer of power to the care taker government happened after the resignation of Zhaleda Zia as the Prime Minister on 27 October 2006. Please comment.
# In your initial SHEV written statement you claimed the Awami League (AL) did not accept the transfer of power to a caretaker government after Prime Minister of Bangladesh Begum Khaleda Zia, resigned after spending five years in power. However you provided contradictory information when you were questioned at the initial SHEV interview, i.e. you claimed in 2006 you protested with the BNP leaders against the caretaker government which was formed by the Awami League (AL). Please comment.
# In your initial SHEV written statement provided to the department on 03/11/2017 you claimed that in 2006, during party meeting they were attacked by AL and you were stabbed on your thigh with a knife, however at the initial SHEV interview when you were questioned about the scar on your leg you provided inconsistent information that during a procession a fight broke out between BNP and AL and you were injured by a brick thrown at you. Please comment.
# You also stated that you complaint to the police but your complaint was refused because it was against AL. It is noted that AL had not been in power for the previous five years, it would
not have any control or power over the police, so why would the police refuse to accept your
complaint against AL? Please comment.
# In your initial SHEV written statement provided to the department on 03/11/2017 you claimed that you left [Country 1] to Australia because there were many Bangladeshi living in [Country 1] who supported the AL. They recognised you and had the [Country 1] local police and Tamil people to harass and beat you. At your initial SHEV interview you provided contradictory information that when you departed Bangladesh and travelled to [Country 1], the AL had already contacted known Tamil nationals that were in [Country 1] to kill you. At the current SHEV interview you stated that you left [Country 1] to Australia because your employer did not renew your visa, also due to the changes in the [Country 1] government regulation and people were living to Australia. Please comment.
According to the delegate’s decision record the applicant and his representative did not respond to the natural justice letter.
Delegate’s decision, 30 August 2021
In the Department decision dated 30 August 2021 the delegate did not accept the applicant’s protection claims as credible. The delegate was not satisfied the applicant had a well-founded fear of persecution, or was at real risk of significant harm, on return to Bangladesh.
Information to the Tribunal
Tribunal Hearing
The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.He is living in [Suburb 1] by himself. He mostly stays at home. He has no relatives in Australia. People who came with him to Australia are his friends. They are not from his village.
b.In Bangladesh he lived in Meherpur. He was in Dhaka once in 2005 in Gardipur for about two or three weeks. He was there for a visit. He has never resided in Dhaka. He has no relatives in Dhaka.
c.In Bangladesh he worked on a farm. He did not do any other work in Bangladesh. His father was also a farmer. His father did not do any other work. The applicant’s family had no other source of income. His family did not have any businesses or shops.
d.His mother and his siblings are living in Bangladesh in Meherpur. The applicant has been out of touch with his family for a long time. He doesn’t know how they are. He contacts them by phone from time to time and they say they are okay. Yesterday he called his mother. They would not tell him if they were having any problems. He doesn’t know if they are.
e.The applicant left Bangladesh in 2006. He can’t remember when or which season it was. He left Bangladesh because his family wasn’t good. They were not very solvent at that time. That is why he left.
f.He would not be able to return to Bangladesh because he has come to Australia. He has some problems. His father supported a political party and his uncle supported the same political party. The applicant attended a meeting and rally and on one occasion he was attacked. He fears he could face another attack.
g.The party is the BNP. It is a political group, the Bangladesh Nationalist Party. When the applicant left Bangladesh the Caretaker government was in power.
h.He can’t remember when he was attacked in Bangladesh. He attended a rally and the opposition party attacked. They threw a brick and it hit the applicant’s head and he received a head injury. The Caretaker Government was in power then.
i.The applicant supported the BNP from 2005 until he left Bangladesh. He left Bangladesh 16 years ago. He could be attacked when he returns because the opposition party is still in power. This is the Awami League.
j.There are no other reasons anyone would want to harm the applicant in Bangladesh.
k.The applicant supported the BNP for one year. His father and uncles supported it for a long time. A false case was lodged against his father but he passed away. The applicant doesn’t have contact with his uncles so he doesn’t know if anything has happened to them.
l.The Tribunal asked the applicant when the false case was lodged against his father and he responded there wasn’t any case, he did not say that. The Tribunal asked him if he had stated that a false case was lodged against his father and he responded no, he hadn’t said anything about a false case. The Tribunal asked the applicant if he knew of any problems his father or uncles had had in Bangladesh and he responded no.
m.The applicant’s brothers are not involved in politics. The applicant used to mingle with his friends and they supported that party. His brothers didn’t support any party.
n.At the local level the Awami League is in power.
o.The Tribunal asked the applicant if he had any political activity apart from in 2005 and he responded no.
p.He went to [Country 1] in 2006. He had problems there. The opposition party had supporters there. With the help of Tamil [people] they tried to create some problems for the applicant. They went to his workplace and threatened they would kill him if he stayed there. So he left [Country 1]. They did this because the Tamil people might have taken ransom money and they are ferocious. The party wanted the applicant to leave [Country 1] because the applicant supported the opposition party. The Tribunal asked him why they would want him to leave [Country 1] as then he would return to Bangladesh and the applicant responded he could not return to Bangladesh. All the political parties’ supporters are scattered in [Country 1]. Both parties’ supporters were at the place where he worked in [Country 1].
q.The problems started about 2 or 3 years after he arrived in [Country 1]. The applicant left [Country 1] in 2013. The Tribunal asked the applicant why nothing else happened to the applicant in [Country 1] although the Tamils threatened to kill him. The applicant responded that the place where he started living was not known to them and they came later and the problems started. They would come to his workplace and threaten to kill him if he did not leave [Country 1]. Nothing else happened.
r.The Tribunal put to the applicant that according to his most recent Protection visa application information he arrived in [Country 1] in January or before March in 2006. The applicant responded this could be. The Tribunal put to the applicant that available country information indicated that the BNP were in power then and that the Caretaker government didn’t start until late 2006. He responded yes that is right in 2006 there was a Caretaker government. The Tribunal clarified with the applicant that it was in late 2006 that the Caretaker government formed in Bangladesh. The applicant responded it was a long time ago and he can’t remember. The Tribunal out to the applicant that this would mean he let Bangladesh while the BNP was still power. The Tribunal put to the applicant that this would mean he could not have participated in rallies in Bangladesh during the Caretaker government. The applicant responded that he left Bangladesh when the Caretaker government was in power. The Tribunal put to him again that he had stated he left in the beginning of 2006 and asked if there was anything he would like to say. He responded that he didn’t want to say anything.
s.The Tribunal asked the applicant is he recalled stating he had a problem with terrorists. The applicant responded that by terrorists he meant the Tamils, in [Country 1]. The Tribunal asked him if he had any problems with terrorists in Bangladesh and he responded once. There was a problem once 16 years ago. He can’t remember. It occurred in his village in the market place. The terrorists demanded money from him and he was unable to give money so they threatened to kill him. After that he left to [Country 1]. He can’t remember when it happened. He doesn’t know how long before he left Bangladesh it happened.
t.The Tribunal put to the applicant that he had stated previously he was injured at a rally in his leg, not his head. He responded it was a long time ago and maybe he wrote the right thing and what he had just said now is wrong.
u.The applicant has not had any other problems with the Awami League. They would want to hurt him if he returns because they are in power.
v.The applicant supports the BNP because his family support the BNP and he grew up in his family. He only supported them for one year so he doesn’t know much about them. The Tribunal asked if he knows anything about the BNP and he responded no.
w.The Tribunal asked the applicant if he could return to Bangladesh and live like his brothers without difficulty in Bangladesh. He responded that they have no involvement in politics. The applicant was involved and had problems.
x.There are no other reasons he would face problems or harm in Bangladesh and there was nothing further he wanted to say.
Country Information
DFAT’s most recent ‘Country Information Report’ on Bangladesh, published in November 2022, contains the following:
The Bangladeshi Nationalist Party (BNP) won the 1991 election under Prime Minister Khaleda Zia (widow of former president Ziaur Rahman, who was assassinated in 1981). Power alternated between the BNP and the AL between 1991 and 2006 with Bangladeshi politics being dominated by political violence and the rivalry between Zia and Hasina. After a brief period of caretaker/military rule, the December 2008 election was won by the AL, led by current Prime Minister Hasina, which has been in power ever since.
…
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.
The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
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.
… According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
…
Bangladeshi Nationalist Party (BNP)
The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
… The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.
The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh, but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.
…
Conditions for Returnees
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.
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; 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.
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.

There were reports in December 2022 of an intensified crackdown on the BNP in Bangladesh:
Two top leaders of Bangladesh’s main opposition party have been arrested amid a violent crackdown on government opponents during which at least seven people have been shot dead and thousands arrested. Over recent weeks, Sheikh Hasina’s government has launched a repressive campaign against the opposition Bangladesh Nationalist party (BNP), which has been holding rallies calling for her resignation.
… [BNP leader] Wahiduzzaman said seven people had been shot dead and at least 6,000 BNP supporters had been arrested by authorities in recent weeks as the ruling party tried to contain a groundswell of opposition in the face of growing discontent over the economy and alleged corruption and abuses. … Amnesty International’s regional director for South Asia, said in recent weeks there had been “an alarming escalation of repression by the authorities”.[3]
[3] THE GUARDIAN, 2022, “TWO BANGLADESHI OPPOSITION LEADERS ARRESTED IN GOVERNMENT CRACKDOWN”, 10 DECEMBER.
According to available country information[4] the BNP was last in government in Bangladesh from 2001 to October 2006, when a caretaker government was formed.
[4] See e.g. Human Rights Watch 2007 World Report, Bangladesh chapter; Canadian IRB Research Response BGD102598.E, 9 October 2007; US Department of State, Background Note: Bangladesh, August 2008
CONSIDERATION OF Claims and evidence
The applicant submitted a copy of his Bangladesh Birth Certificate. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Bangladesh. The Tribunal assesses the applicant’s claims against Bangladesh as his country of nationality and receiving country.
Credibility
The applicant claims to fear harm in Bangladesh from the Awami League because of his active support for, or membership of, the BNP. He also claims to fear harm from terrorists.
BNP support, membership
The applicant’s claims to have been involved with the BNP and targeted by the Awami League in Bangladesh have been significantly contradictory and confused over the course of his Protection visa and review applications.
He has variously stated at different times that he was a supporter of the BNP for one year in 2005 and had low key participation in mass activities; he was an active, popular and well-known BNP supporter; he was a member of the BNP; and he was not a member of the BNP.
He has also provided clearly contradictory evidence regarding his family’s political background stating more than once that his family had no involvement in politics in Bangladesh but also stating at other times that both his father and uncles were long time BNP supporters.
His description of being attacked by Awami League supporters was also highly inconsistent. He initially described the attack as being beaten by them on his way home from a BNP party meeting and left on the side of the road. At another time he spoke of the attack occurring during a BNP party meeting and being stabbed in the leg. He then changed this later, stating a brick was thrown at his leg. Finally, during his tribunal hearing, he changed his evidence further to state he was hit on a head with a brick during a BNP rally.
The applicant spoke of his participation in BNP rallies against the Caretaker government in Bangladesh in 2006 but was unable explain how he could be present at these given the Caretaker government was not formed until October 2006 and he had provided evidence he departed Bangladesh for [Country 1] in the early months of 2006. He did also speak of leaving [Country 1] in either late 2006 or in 2007 but would tend to revert back to the likelihood that his departure was in early 2006 regardless. Further, in his November 2017 written statement the applicant stated it was the Awami League supporters protesting against the Caretaker government, not the BNP. At the time the BNP had been in government for the past five years so the applicant’s occasional references to the Awami League having power or being in government then are also erroneous.
In his oral evidence the applicant was not able to provide any information about the BNP, finally confirming at his Tribunal hearing that he did not know anything about the BNP.
In view of the applicant’s poor evidence the Tribunal does not accept he was ever a supporter, activist, or member of the BNP or that he was ever targeted, threatened, or attacked by the Awami League due to his BNP political involvement.
Terrorists
The applicant’s account of harm he experienced from ‘terrorists’ was even more muddled and vague. He spoke of the terrorists demanding money from him when he was in the family shop yet denied his family had a shop or any business, during his Tribunal hearing.
The applicant’s claim to have been threatened for money by terrorists in his shop and having them arrested by the police was not mentioned in his initial written Protection visa application, or in his subsequent written Protection visa application, or in any of his written statements. The Tribunal has not been able to locate the source of the applicant’s claim regarding terrorists. According to the department’s decision record it was included in a statement to a department case officer. The Tribunal has not been provided with a record of the statement. However the applicant has appeared to have adopted the claim in his oral evidence. At his Tribunal hearing he did not initially mention any problem with ‘terrorists’ until the Tribunal asked him if he recalled stating he had a problem with terrorists. He immediately associated this term with Tamils in [Country 1] so the Tribunal had to prompt him again in regard to Bangladesh. He then responded very vaguely about a problem 16 years ago but could remember few details of it.
The lack of evidence presented by the applicant does not support the genuineness of the claim. In view of the high uncertainty and vagueness surrounding it the Tribunal does not accept that terrorists demanded money from the applicant in his father’s shop, or that he had terrorists arrested by the police in Bangladesh, or that terrorists have threatened to kill him in Bangladesh. The Tribunal does not accept there is any adverse interest in the applicant from ‘terrorists’ in Bangladesh.
Threats and attacks from Tamils in [Country 1]
The applicant gave an implausible and inconsistent account of his time in [Country 1] and reasons for travelling from there to Australia. He tended to focus upon his employment difficulties and low wage in [Country 1] as the primary motivation for his departure and journey to Australia. He would then make additional reference to vague threats from [Country 1] Tamils, at the behest of the Awami League, to threaten to kill him unless he left [Country 1].
The applicant was unable to provide a sensible reason why the Awami League wanted him to leave [Country 1]. Also, given he claimed that the threats started a few years after he arrived in [Country 1] he was unable to reasonably explain how he was able to remain in [Country 1] for many further years despite the threats.
The Tribunal considers that there are significant deficiencies in the applicant’s evidence and that he has been unable to establish his claim to have been threatened and or harmed by Tamil [Country 1] in [Country 1], acting on behalf of the Awami League. The Tribunal does not accept this claim.
Fear of Harm on return to Bangladesh
The applicant has not submitted any other claims to fear serious or significant harm in Bangladesh and none arise on the information before the Tribunal.
O the evidence and information before it the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee definition reason in Bangladesh. The Tribunal is similarly not satisfied there is a real risk the applicant will be subject to significant harm on return to Bangladesh.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicant a protection visa.
Melissa McAdam
Member

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

[2023] AATA 751

25 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction