2114765 (Refugee)

2114765 (Refugee) [2023] AATA 1282 (11 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Monir Hossain (MARN: 0958158)
CASE NUMBERS:  2114765 & 1833364
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nicole Burns
DATE:11 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.
Statement made on 11 January 2023 at 2:45pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – alleged involvement in the National Democratic Party (BNP) – targeted by the Awami League (AL) – targeted business owner – fears of persecution – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AA, 5(1), 5H, 5J, 5K-LA, 36,65, 91K, 411,499
Migration Regulations 1994
CASES
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
DBB16 v MIBP (2018) 260 FCR 447
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 two decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 13 January 2017 (the first protection visa application) and on 1 October 2021 (the second protection visa application) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Procedural history
There is an extensive procedural history to these cases now before the Tribunal, summarised as follows.
According to Departmental records, the applicant, who claims to be a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in]October 2012. 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 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 granted a Temporary Safe Haven (Subclass 449) visa on 30 January 2013, 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 lodged a Temporary Protection (Subclass 785) visa (TPV) application on 7 July 2016, which 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. This application was refused by the delegate on 13 January 2017, on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied.
The Tribunal notes an application for review of the delegate’s decision of 13 January 2017 was made to the Immigration Assessment Authority (IAA) on 18 January 2017, and the IAA affirmed that decision on 8 June 2017. However, following DBB16 v MIBP, the applicant is not an ‘unauthorised maritime arrival’ as noted earlier, and as such the IAA decision was quashed as the Court found it did not have jurisdiction.
A valid application for review of that decision was made to the Tribunal on 13 November 2018: AAT No.1833364.
The applicant made a second application for a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 3 November 2020, which was also valid. This was refused by the delegate on 1 October 2021, on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied.
A valid application for review of that decision was made to the Tribunal on 21 October 2021: AAT No. 2114765.
The applicant appeared before the Tribunal in a joint hearing on 19 December 2022, where he gave evidence and presented arguments about the issues that arise in both cases. The applicant was advised that the hearings for both cases would be combined in the hearing invitation, and this was explained at hearing, at which time the applicant agreed to this approach. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review. The representative did not attend the Tribunal hearing.
The issues in these cases are: whether there is a real chance, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
To meet the criteria for a TPV or a SHEV, an applicant must engage Australia’s protection obligations as set out in s 36 of the Act, as follows.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent country information report on Bangladesh was issued on 30 November 2022.
Receiving country
The applicant claims to be a national of Bangladesh, born in [Village 1], [District 1], Bangladesh. He told the Department (and Tribunal) he left Bangladesh in mid-2012 via plane to [Country 1] holding a Bangladeshi passport issued in his name and date of birth (DOB), since confiscated by the people smuggler who helped him get to Australia from [Country 1], by boat.
Since then the applicant has provided to the Department evidence of his nationality and identity in the form of translated copies of his Bangladeshi National identity card and his Bangladeshi birth certificate. The delegate accepted the applicant’s claimed nationality and identity, as recorded on these documents, as does the Tribunal.
The Tribunal is satisfied the applicant is a national of Bangladesh and finds that Bangladesh is his receiving country for the purposes of assessing his protection claims.
Background
According to the evidence before it, including the applicant’s oral evidence to the Tribunal at hearing, the applicant is a national of Bangladesh and is of Bengali ethnicity. He is a Muslim. He was born on [DOB], making him [age] years of age. Apart from a month before he left Bangladesh, when he claims to have been in hiding, he only ever lived in [Village 1], before leaving Bangladesh in June 2012 for [Country 1], where he stayed until he came to Australia in October 2012.
In Bangladesh, the applicant left school after year 7 and worked with his father on a farm, then at his father’s [workshop], which he eventually took over. His father died in September 2019 and his mother remains living in the family home in [Village 1] along with his younger brother. The applicant’s wife and [age deleted] son live with his wife’s parents in a village around 11 kilometres from his village.
In Australia, the applicant told the Tribunal he works full time at a [shop].
protection Claims and evidence
In summary, the applicant claims to fear persecution on return to Bangladesh at the hands of his former business competitors, [Mr A] and [Mr B], who destroyed his [business] and are seeking revenge because he refused to undertake illicit activities for them, and because he refused to join the political party they belong to, the ruling Awami League (AL). The applicant claims [Mr A] and [Mr B] have continued to enquire about him and threatened him via his parents and wife, who remain in Bangladesh.
More generally, the applicant also claims to fear AL supporters in Bangladesh as he is a Bangladesh Nationalist Party (BNP) supporter .
The applicant initially set out his claims in a written statement dated 5 July 2016, which was provided to the Department in support of his first protection visa application. He indicated that he continued to rely on the claims made in that statement when he applied for the second protection visa. He also submitted an additional statement to the Department dated 4 August 2021 after his interview with the delegate in respect of his second protection visa application.
The Tribunal notes the delegate who determined the first protection visa application accepted the applicant was a low-level BNP supporter and that his business had been targeted by AL supporters, but found he could take reasonable steps to avoid harm by not going into direct competition with AL leaders on return to Bangladesh. The delegate who determined the applicant’s second protection visa application held several credibility concerns in relation to the applicant’s evidence and did not accept he had a business in Bangladesh, or experienced problems there from business rivals, or was a BNP supporter.
The applicant provided copies of the delegates’ decision records to the Tribunal in respect of both review applications. He also submitted a written statement (undated, received from the representative on 10 December 2022) to the Tribunal in which he reiterates and expands upon his claims and addresses some issues raised by the second delegate. In it he states, in summary that:
·He left Bangladesh because he was afraid he would be killed by [Mr B]and [Mr A], his business competitors, who have powerful political connections with the AL.
·They wanted to kill him because his business was successful, and because he refused to join the AL or take part in their illegal activities.
·They borrowed his [items], without returning them; told his customers not to pay him; and in May 2012 demanded 10 lakhs[1] from the applicant (he gave them 2 lakhs and 20,000[2] Taka), took the rest of his [items] and everything that belongs to his workshop, and threatened to kill him.
·The applicant reported them to the police but no action was taken because [Mr A]and [Mr B] had connections with the police.
·Later, the applicant found out they had gone to his house and told his mother they would kill him.
[1] One lakh equals a hundred thousand.
[2] Equivalent to AUD3,152 as of 21 December 2022, >
In his statement to the Tribunal, the applicant also details his political activities in Bangladesh, stating that he is a BNP member who has been threatened, beaten and targeted by the AL in Bangladesh, and fears he will be harmed by AL workers on return there. He states he was a BNP member for his local branch, although he did not hold any party position and primarily focused on his business. However, to protect businesses in Bangladesh, he needed political support. His father was a BNP member and he began helping his father with BNP related activities from around 2008. He attended party meetings, rallies, protests and other activities, and motivated people to join the party.
At hearing the applicant described his background, the experiences in Bangladesh that led to him leaving in 2012, his current circumstances and his extant fears if he has to return to his home country. These are summarised as follows.
The applicant said he left Bangladesh in mid-2012 because he had been threatened by two men in his home village, [Mr A] and [Mr B], who operated similar businesses to himself (making metal furniture and furnishings) and were unhappy that his business was more successful. The applicant attributed his successful business to the fact he produced quality products, such as [description deleted], and did a lot of the labour himself, which meant he had fewer overhead costs and could charge customers less.
The applicant said his problems with [Mr A] and [Mr B] started around a year before he left Bangladesh when they approached him to take over his business and then for him to undertake ‘dirty work’ they were involved in, such as [goods]and people’s property. They wanted him to engage in such activities and then share the profit with them. He refused, so they threatened to kill him. They also borrowed machines he used, without returning them, and told many of his customers not to pay him. The applicant then went into hiding for around a month before he left Bangladesh, staying at the houses of different relatives and friends in his village and a nearby village. During that time [Mr A] and [Mr B] took the rest of his machines and other material from his workshop, which has since been closed.
The applicant said that before these problems, not long after he took over the business from his father, [Mr A] and [Mr B] asked to borrow 10 million lakhs. He gave them 2 million lakhs, and 20,000 takas, which they never returned. They threatened to beat him and kill him if he did not hand over the money at the time.
The applicant said he made several complaints to the police about [Mr A] and [Mr B] ; however, whilst the police indicated they would look into the matter, they did not do anything. He added that he used to see the police sitting and having coffee with [Mr A] and [Mr B]. When asked if he complained to anyone else, the applicant said he wanted to go to the higher authorities but decided not to after they threatened to kill him. He added that the local police were in ‘cahoots’ with the ruling party, and would do whatever they said.
When the applicant was in hiding, before he left Bangladesh, [Mr A] and [Mr B] visited his parents’ house and threatened him via his mother, who warned the applicant not to come home. They visited many times thereafter; the applicant said they continue to do so to this day. They visited less regularly after his father died in September 2019. They usually visit when they hear or see that his wife, who moved to her parents’ house in another village, is visiting, and continue to make threats about what will happen to the applicant if he comes back to Bangladesh. He said his wife is scared, and rarely visits his parents now, and rarely leaves her home.
The applicant said he hears via his mother and brother that [Mr A] and [Mr B] remain living and working in their village, in both legal and illicit businesses. He is afraid of them if he has to return to Bangladesh because, despite the passage of time, he is fearful they will want him to join their illegal activities again. He noted that as he broke his leg (in 2013) he cannot even run now, and they will catch him. They also have networks throughout the country, so they will be able to find him wherever he lives.
The applicant also discussed his past involvement with the BNP in Bangladesh, discussed further below.
After the hearing, the applicant submitted an x-ray, showing several fractures from when he broke his in 2013. He also submitted a typed statement, undated (received from his representative on 3 January 2023), in which he explains his involvement with the BNP in Bangladesh, the positions [Mr A] and [Mr B] held with the local AL, and the status of his business in Bangladesh. The statement is along similar lines to the statement he provided to the Tribunal pre-hearing.
Findings about the applicant’s past experiences, profile, and future fears
Having regard to the totality of the evidence before it, including the applicant’s oral evidence and written statements, the Tribunal makes the following findings with respect to the applicant’s protection claims, and whether his fears of persecution on return to Bangladesh are well founded.
[Mr A] and [Mr B]
The Tribunal has considered the applicant’s claims to fear serious harm from his business rivals, [Mr A] (also, purportedly president of the local AL) and [Mr B](also, purportedly a leader of the local AL [position deleted]), because he refused to hand over his [goods] business to them, be involved in illicit activities (such as threatening others, collecting donations by force from other businesses, and stealing and selling [good))[3], or join the AL. He claims they forced his business to collapse by stealing his machines and other equipment, borrowing money from him (which they never returned), and telling his customers not to pay him for products. Further, he claims they threatened to kill him and have continued to enquire about him and threaten him via his parents and wife since he left Bangladesh.
[3] According to the applicant’s statement in his 5 July 2016 written statement.

The applicant claims [Mr A] and [Mr B] are politically powerful, wealthy, own land and remain influential in his local area, and are involved in both legal and illicit businesses and activities.
The Tribunal accepts that from around 2008 to May 2012, the applicant ran a workshop in his hometown in Bangladesh that produced [goods], such as [description deleted]. It accepts he took over the business from his father, and that his business was successful given he produced quality products and was hands on, as indicated at hearing.
Apart from his own assertions, the applicant has not provided evidence of his business. He explains in a statement to the Tribunal that this was because the business was unregistered and he did not pay tax. It also no longer exists. He provided to the Department a copy of a ‘Citizenship of Character Certificate’, which he claimed is needed to obtain proper licences for his business. The Tribunal notes the applicant has consistently claimed to have operated this business, and accepts his explanation as to why he does not have written evidence of such.
The applicant has also been generally consistent about some of the problems he has experienced from two men in his local area, [Mr A] and [Mr B], who operated similar businesses (among other ventures). The Tribunal accepts that from around a year before he departed Bangladesh, [Mr A] and [Mr B] started undermining his business in indirect ways, such as by pressuring his customers not to pay him for goods purchased, and in more direct ways, such as by stealing his machines. The Tribunal also accepts the applicant reported this behaviour to the police, who failed to act. He had indicated in his written statement to the Department that he also contacted the Chairman of his locality for help, who could not help him against [Mr A] and [Mr B] (and who was also an AL member). However, he made no mention of this at hearing, instead saying he did not go to any higher authority because he had been threatened.
The Tribunal does not accept however, that [Mr A] and [Mr B] threatened to kill the applicant, and have continued to do so, over 10 years after he left Bangladesh (allegedly via his parents and wife). The assertion that they threatened him with death, and continue to do so, makes little sense, given they achieved their objective of undermining his business. The applicant claimed at hearing that they are seeking revenge because he refused to join the AL, a party of which they are local leaders, and refused to undertake illicit activities for them. Yet he failed to mention this at all at his entry interview on 31 October 2012 (as recorded in the delegate’s decision record for the second protection visa application, a copy of which was provided to the Tribunal on review), instead stating he left Bangladesh because he was harassed by AL members who did not like him being so successful with his business, and who had beaten him up when he could not pay them bribes in April 2012. The Tribunal notes the claim at the entry interview to have been beaten by AL members is not repeated subsequently; instead he claimed to the Department, in relation to his first and second protection visa applications, and to the Tribunal, only to have been threatened, not to have been beaten by anyone, which casts further doubts on his claims in this regard. He also indicated at hearing that he did pay them 2 million lakhs, and 20,000 takas, which is inconsistent with his statement at entry interview about being beaten when he could not pay them bribes.
Additionally the Tribunal notes different reasons have been given by the applicant as to why [Mr A] and [Mr B] targeted him. For example, in his written statement dated July 2016 (provided in support of the first protection visa application) he states that it was because he had a successful business, and he would not join their political party or take part in their illegal activities. However, at interview with the delegate in respect of his second protection visa application (as set out in that delegate’s decision record, a copy of which was provided to the Tribunal on review), he said they were criminals and they targeted him because he knew about their criminal activities. He also stated that they would target him on return because they were afraid he would report them for their criminal activities. However, this statement is undermined to a certain extent by his claims, including claims made before the Tribunal, that he had reported them to the police in his local area several times for, among other reasons, making him loan them money and not returning it.
The Tribunal also notes the applicant’s evidence about the purported ongoing interest in him by [Mr A] and [Mr B]is inconsistent at times, and has grown, which is of some concern. For instance, in his written submission to the Department dated 9 August 2021, provided in support of the second protection visa application, he states that they threatened him in May 2012, and later he came to know that they went to his house and told his mother they would kill him. However, at hearing he said [Mr A] and [Mr B] visited his parents many times, and continue to do so to this day, including when his wife visited his parents’ house around the time of his father’s illness and death (in September 2019). He failed to mention this in his August 2021 submission.
The Tribunal found the applicant was unable to adequately explain why [Mr A] and [Mr B] would continue to enquire about him and threaten him with serious harm, when his business had closed and he had left the country over 10 years ago. The applicant said at hearing they seek revenge because he refused to join the AL and engage in illicit activities, but he was unable to explain why he would be of particular value to them in this regard. On the applicant’s own evidence (discussed more below) at hearing, he was not very politically active or influential at all in Bangladesh, focusing more on his business, and given the large population of Bangladesh, the Tribunal considers [Mr A] and [Mr B] would be able to find other people to help them undertake illicit activities.
The Tribunal also considers the reaction of [Mr A] and [Mr B], that is, threatening to kill the applicant when he refused to join the AL and their gangs involved in illicit activities, extreme and somewhat disproportionate. Particularly given it is unclear why they had an interest in the applicant joining the AL and their gangs. When asked at hearing why they did not just leave him alone after his business had closed (and he left the country), the applicant said they wanted to make an example of him, and wanted revenge because he did not bow down to them. However, he has been unable to explain why they had taken such interest in him for these roles in the first place.
Given these concerns, whilst the Tribunal accepts the applicant’s [goods] business was in some respects adversely affected by his competitors’ underhand tactics in around 2011/2012 (before he left Bangladesh), it does not accept they took money from him (and did not return it) or threatened to kill him, or that they continued to try and locate him with a view to seeking revenge after his business closed down, including in the more than 10 years he has been in Australia.
Given these findings, the Tribunal also does not accept the applicant went into hiding for a month before he left Bangladesh, staying at houses of friends and relatives, as claimed.
The Tribunal accepts that [Mr A] and [Mr B] had mistreated the applicant in the past in terms of undermining his business, and accepts they are AL members, with local leadership positions. However, for the reasons above, the Tribunal finds they have no ongoing adverse interest in the applicant and therefore finds the applicant does not face a real chance of serious harm from them (or their associates) on return to Bangladesh in the foreseeable future as a past business rival, or as someone who refused to join the AL, or as someone who refused to be involved in their illicit activities. His fear of persecution from [Mr A] and [Mr B](and/or their associates) for these reasons is not well founded.
Outstanding debts and inability to subsist
In his written statement dated July 2016, the applicant notes: he broke his leg in 2013, which means he cannot move well and is unable to walk more than 10 minutes; he is no longer fit for regular work as medical staff advised him he should not lift even five kilograms; and he is worried about his ability to find work in Bangladesh if he has to return there.
At hearing he said that despite undertaking years of physiotherapy after breaking his leg in a house fall in 2013, he remains in some pain and can only walk for around five minutes. He is waitlisted for possible surgery to remove metal pins in his leg. As noted, after the hearing he provided an x-ray of his fractured leg.
In addition, the applicant claims to have some outstanding debts to people who supplied him with machines and material for his business in Bangladesh. At hearing, he told the Tribunal he has repaid a little bit whilst working in Australia, but is unsure how much he still owes. He said they will pressure him for the money if he returns, but feels confident he will be able to repay the amount.
The Tribunal accepts the applicant broke his leg in 2013, and may experience some ongoing pain and limits in relation to walking, as claimed. Nonetheless, at hearing the applicant said he works full time in a [shop], and apart from asking people to help him lift heavy items at times, did not indicate that he is unable to work. He has work experience in Bangladesh and Australia and told the Tribunal he owns the land his [business]is on in Bangladesh (inherited from his late father). His wife is also currently financially supported by her parents, who own farms in Bangladesh, and he said his brother works, running a shop selling [goods].
The Tribunal accepts the applicant may have some outstanding debts to local suppliers in Bangladesh but the amount remains unclear. He gave no indication at hearing that he has ever been threatened or harmed by these suppliers in the past, and indicated that he should be able to repay the amount.
The Tribunal has accepted the applicant’s business was undermined by his business competitors in the past in Bangladesh, and whilst it does not accept that he is of any ongoing adverse interest to [Mr A] or [Mr B] or their associates, he may face difficulties from business rivals in the future if he attempts to establish another business. Nonetheless, given his work history, including in Australia, and the possible support of family members in Bangladesh, the Tribunal is satisfied he has some other work options and financial support available.
Given these considerations, the Tribunal finds the applicant does not face a real chance of any type of serious harm, including the types of harm set out in s 5J(5) (significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist, and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist) and as set out in s 36(2A), on return to Bangladesh.
Support for the BNP
The Tribunal has considered the applicant’s claims to have supported the BNP in the past in Bangladesh, and to fear persecution by AL supporters in the foreseeable future if he returns to Bangladesh.
In his 9 August 2021 submission to the Department and recent submission to the Tribunal, the applicant confirms: he was a general member of the local BNP, although he did not hold any party position; he cannot remember when he joined the party, but he began helping his father, also a BNP member, with BNP activities in 2008; he was not very active in politics because he was busy with his business, but in Bangladesh political support is needed to protect businesses; and he participated in activities organised by the local BNP, including attending party meetings, rallies, protests and motivating people to join the party.
In his statement to the Tribunal, the applicant said the extent of his involvement with the BNP does not matter as he will be harmed by the AL as soon as he returns, because they destroy all opposition political members, workers and supporters.
At hearing the Tribunal discussed with the applicant his purported involvement with the BNP in the past in Bangladesh. He said he was not a member, just a supporter, although his father was a member. This contrasts with what he claimed in his written submissions to the Department and Tribunal.
In addition, the applicant said at hearing that he participated in meetings with his father, and sometimes helped when his father would supervise local work such as fixing roads or schools, when the BNP was in power. He did not mention attending rallies or protests, as claimed in his written submissions to the Tribunal and Department, including when asked specifically if he was involved in any other activities. Instead, he said he was primarily focused on his business. He did not indicate that he was involved in any election activities such as strikes or demonstrations.
The Tribunal also notes that in his written submission to the Tribunal, the applicant claims to have been threatened, beaten and targeted by the AL, yet at hearing he gave no indication that he has ever been beaten by anyone in Bangladesh. This inconsistency, along with other concerns, as discussed, cast doubt on his claimed involvement with the BNP in Bangladesh.
Given these concerns, the Tribunal does not accept the applicant’s claims that he or his father were involved with and/or affiliated with the BNP in the past in Bangladesh. It does not accept he attended meetings, rallies, protests or encouraged others to join the party, or helped his father with BNP-related activities.
The Tribunal also does not accept the applicant’s business was targeted by [Mr A] and [Mr B] in the past because he was a BNP supporter, and finds he did not experience threats or harm from AL supporters or members in Bangladesh as a BNP supporter or for any other reason.
Accordingly, the Tribunal finds he does not face a real chance of serious harm from AL supporters or anyone on return to Bangladesh due to his and/or his father’s past support for the BNP and/or BNP affiliations.
Given its findings about the applicant’s lack of involvement with political activities in the past in Bangladesh, and the fact he has not been politically active at all in Australia (as confirmed at hearing), the Tribunal does not accept the applicant would actively support the BNP (or any other group) on return to Bangladesh in the foreseeable future.
Accordingly, the Tribunal does not accept that the applicant would support the BNP on return to Bangladesh and finds he does not face a real chance of serious harm from AL supporters or anyone else because of his (or his father’s) past or future support for the BNP on return to Bangladesh in the foreseeable future. His fears of persecution due to his actual or imputed political opinion (based on his father being a member of the main opposition party in Bangladesh, the BNP, and his own participation in party activities) is not well founded.
Failed asylum seeker
The Tribunal has considered whether the applicant faces a well-founded fear of persecution on return to Bangladesh from the authorities as a failed asylum seeker.
As discussed at hearing, DFAT states the following about returnees (including failed asylum seekers) to Bangladesh:
Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted (see Bangladesh Nationalist Party (BNP)); however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
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[4].
[4] DFAT Country Information Report, Bangladesh, 30 November 2022 at 5.25 and 5.26.
When this information was discussed at hearing, the applicant said he just wants to save his life, which is why he is seeking asylum, as he is not safe in Bangladesh.
The country information as set out above indicates that it is unlikely the applicant would be of interest to the authorities on return to Bangladesh, even if they assumed that he had sought protection in Australia. In the applicant’s case, the Tribunal does not accept his claims to have been involved with the BNP in the past in Bangladesh, and he told the Tribunal he has not been politically active in Australia. Nor does it accept the applicant’s business was targeted by [Mr A] and [Mr B] (both local AL leaders) in the past because he was a BNP supporter.
Given these considerations and noting DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention, the Tribunal finds remote the chance the applicant will face serious harm on return to Bangladesh as a failed asylum seeker, including in the form of detention and/or imprisonment. His fear of persecution on this basis is not well founded.
For these reasons, the Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities on return to Bangladesh as a failed asylum seeker.
Conclusion – refugee grounds
Having considered the applicant’s claims individually and cumulatively, for the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Bangladesh for any refugee reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because of a well-founded fear of persecution as defined in s 5J of the Act. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
COMPLEMENTARY PROTECTION
Given these findings, the Tribunal has gone on to consider whether the applicant faces a real risk of significant harm for the reasons advanced if returned from Australia to Bangladesh, as required under Australia’s complementary protection provisions.
The Tribunal finds the applicant is a national of Bangladesh and that Bangladesh is his receiving country for complementary protection assessment purposes.
Significant harm is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. The definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ were included in the delegate’s decision.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
In his written submission to the Tribunal, the applicant states he will suffer significant harm in Bangladesh in the form of being subjected to torture, and to cruel or inhuman treatment or punishment. He notes there are many political incidents at the local level in Bangladesh that are not reported by the media, or where the government does not provide assistance. He fears being killed by AL activists, as he described in his protection visa applications.

For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Bangladesh now or in the foreseeable future: from his business rivals, [Mr A] or [Mr B], for any reason; from AL members or supporters because he is a BNP supporter; because his father was a BNP member; because of outstanding debts; because of an inability to subsist; or from the authorities as a failed asylum seeker. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[5] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh.
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm.
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) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicant a protection visa.
Nicole Burns
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 1282

11 January 2023

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