2313103 (Refugee)
[2023] AATA 4530
•27 October 2023
2313103 (Refugee) [2023] AATA 4530 (27 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Dr MD SIRAJUL HAQUE
CASE NUMBER: 2313103
COUNTRY OF REFERENCE: Bangladesh
MEMBER:James Silva
DATE:27 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 27 October 2023 at 12:00pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party and member/office holder of youth wing – beaten by opponents and subject to false criminal charges – false information in visitor visa application, fake visa stamps as evidence of travel history, visa cancelled on arrival and immigration detention – no fear of harm claimed in arrival interview – reasonable knowledge of local politics but vague and unsubstantiated description of own general activities – delay between claimed attacks and departure for third country – limited political activity while working in third country – provenance and reliability of supporting documents – obtained passports and travelled despite claimed arrest warrant – country information – prevalence of document fraud – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2CASE
Randhawa v MILGEA (1994) 52 FCR 437Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a [Age] year old man from Bangladesh, who claims to be a citizen of that country. He arrived in Australia [in] August 2023, as the holder of a visitor visa.
On 10 August 2023, the applicant applied for a protection visa (Temporary Protection, subclass 785). On 22 August 2023, a delegate of the Minister for Home Affairs on 22 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
INTRODUCTION: CLAIMS AND CRITERIA FOR A PROTECTION VISA
Protection claims
The applicant wrote in his protection visa application that he is affiliated with the opposition Bangladesh Nationalist Party (BNP) and held a position in its student wing (the Jatiyatabadi Chhatra Dal, ‘JCD’). He claimed that political opponents beat him on a number of occasions, in 2014, 2015 and 2016; and that he is subject to false criminal charges.
The applicant claims to fear that he will be physically harmed, imprisoned or killed if he returns to Bangladesh, at the hands of the ruling Awami League (AL) government and its agents. He claims that, as the government is responsible for or complicit in the harm he faces, there is no prospect of him getting protection. Moreover, the risk exists throughout Bangladesh which, he notes, is a small country.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
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.
BACKGROUND AND EVIDENCE
Background
The applicant is a [Age]-year-old man from [Town], Sylhet district. He speaks Bengali (Bangla), is literate in English and has some familiarity with Arabic. He is an ethnic Bengali, and Sunni Muslim.
The applicant attended school until [Year] (age 18). He completed his Secondary School Certificate (Year 10 equivalent) at [an Islamic school], and his Higher School Certificate (Year 12) at [a] College, in Sylhet. The applicant told the Tribunal that the college is some 40 to 45 km from his home; he used to travel there each day. His HSC certificate was delayed by one year, as he fell sick around examination time.
The applicant did not provide details of his employment in his protection visa application, but told the Tribunal that after completing high school, he worked part-time in a [workplace] for a few years. He claims to have worked in politics part-time during this period, and later full-time, with financial support from his family.
The applicant married in February 2022 during a return visit to Bangladesh (from [Country 1]). He has a son born in [Year]. The applicant’s wife and son live in Sylhet, spending time between his and her families.
The applicant’s widowed mother lives in the family home in [Town]. His father, who worked as [an Occupation 1], died in 2005. The pre-hearing submission describes the family as ‘middle class’. The applicant has [siblings]. One brother has a small business in a local marketplace. The other two brothers help with the business. One had lived and worked [self-employed] in [Country 1], returning after his visa expired. The applicant said that the other one is involved in BNP politics, like himself. The applicant’s sisters are married and living with their husband’s families.
The applicant said that he has a contact in Australia, [Mr A]. He described him as an uncle but clarified that he is a family acquaintance from Sylhet, and not a blood relative.
The applicant currently holds a Bangladesh passport issued [in] 2021, a partial photocopy of which is on the Department file. Although formally issued in Dhaka, it bears the stamp of the Bangladesh Consulate-General in [City, Country 1]. The applicant confirmed that he had held an earlier passport, which had been valid for five years and had expired. He was unsure when he obtained it but agreed with the Tribunal’s observation that it was probably issued in 2016 or earlier (calculating back five years form the date of issue of the 2021 passport).
In response to the Tribunal’s query whether he had experienced any difficulties obtaining the passports in 2016 and 2021, he said that the authorities initially refused to grant him a passport but he ‘somehow’ got it. He did not provide further details.
The applicant arrived in Australia holding a visitor visa. Australian Border Force (ABF) officers established that the applicant had provided false information in his visitor visa application, in that he had relied on a previous passport with fake [Country 2] and [Country 3] visa stamps as evidence of his travel history. ABF officers cancelled the visitor visa, and the applicant was not immigration cleared. He is currently in Villawood Immigration Detention Centre (IDC).
Evidence
The evidence before the Tribunal includes the following relevant material:
§The protection visa application form lodged online on 10 August 2023, which includes brief comments outlining the applicant’s protection claims.
§The applicant foreshadowed a further statement. The Department wrote to the applicant on 16 August 2023, inviting him to provide further information. There had been no response as of 22 August 2023, and the delegate proceeded to make a decision without an interview.
§The protection visa decision record (‘delegate’s decision record) of 22 August 2023, a copy of which the applicant provided to the Tribunal.
§Brief submission dated 9 October 2023, stating ‘the applicant was a core activist of the party (BNP). [He] was subject to a number of false cases, while he was in Bangladesh. We also enclose a news report for your kind consideration’.
§Pre-hearing submission received on 16 October 2023, and the applicant’s statement of 15 October 2023 confirming the genuineness of the documents and accuracy of the submission.
§Supporting political documents:
-BNP Central Office membership receipt, dated [July] 2010
-College JCD committee list dated [January] 2013
§Supporting court documents (provided on 9 October 2023) (English translations only, copies of Bengali/Bangla language originals not provided):
-First Information Report dated [October] 2013, in which the applicant (and four others) are accused under s.154 of the Criminal Code and s.2(B.4) of the Law and Order Disruption (Speedy Trial) Act[1]. The associated statement of complaint (ejahar) dated [October] 2013 alleges that the applicant and four other persons held an armed protest and caused terror.
-Charge Sheet dated [October] 2013.
-Warrant of arrest for the applicant, dated [October] 2013.
-Order of [Court official] [Court], Sylhet, dated [August] 2023, stating that, of the 21 co-accused, the applicant is absconding, and authorising an arrest warrant be issued for him.
§Other supporting documents:
-Photograph of the second page of [named] newspaper, with English translation, with multiple dates, and a photograph with translated caption ‘[Refers to applicant]’ ([Location in caption] a prominent location in Sylhet city.)
[1] Section 2(B.4)
The applicant appeared before the current Tribunal at a hearing held on 16 October 2023. The hearing was conducted with the assistance of an accredited interpreter in the Bengali (Bangla) and English languages.
At hearing, the Tribunal put to the applicant potentially adverse information about his statements on arrival in Australia (which did not mention any fears relating to Bangladesh). Although it commenced the procedure in s.424AA, the applicant appeared confused as to which interview(s) the Tribunal was referring to. In these circumstances, the Tribunal decided to put the material to him under s.424A, for comments/response, if any, in writing. The applicant replied on 23 October 2023, with his comments/response to the adverse information, and a copy of a letter dated 22 October 2023, in English, from [Mr B], [an Occupation 3] and BNP Sylhet District Committee leader. The Tribunal considered, given the contents of the letter and discussion at hearing about document fraud in Bangladesh, that it was not necessary to invite the applicant to a second hearing to discuss that letter.
The Department file includes other documents relating to the applicant’s travel, entry and immigration detention. These include the following (not exhaustive):
§ Notice of visitor visa grant on 6 June 2023.
§ Processing on arrival in Australia, including interview (audio recording and notes) [in] August 2023; Notice of Intention to consider cancellation under s.116.
§ Application for a Bridging E visa, which was found to be invalid (as the applicant was not immigration cleared).
§ Detention Client Interview, Part A and Part C, dated 11 August 2023.
The applicant is represented by legal practitioner Mr Sirajul Haque of MS Haque and Associates. Mr Haque attended the hearing.
Receiving country
The applicant claims to be a national of Bangladesh. He presented at the border with a Bangladeshi passport, speaks Bangla (Bengali), and is familiar with Bangladesh. There is nothing to suggest that he has any other nationality. The Tribunal accepts that Bangladesh is the country of reference for the purpose of assessing his protection claims.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of facts
When assessing claims the Tribunal must make findings of fact as a preliminary step to determining whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[2] In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
[2] The Tribunal has before it the AAT’s Migration and Refugee Division , Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re-issued February 2019 at [203]-[204] (UNHCR Handbook). Of particular relevance in this case, given the applicant’s mental health issues, is the MRD Divisions, Guidelines on Vulnerable Persons.
In the present case, the applicant appeared to have a reasonable knowledge of local politics. However, his description of his own political activities was vague, uncertain and sometimes improvised. He did not appear to be talking on the basis of personal experience. While he provided some supporting documents, the Tribunal has a range of concerns about their provenance and reliability, as detailed below. Also, it is difficult to reconcile the applicant’s claimed engagement with Bangladeshi politics, with his apparent ambitions to live and work abroad, in [Country 1] and now Australia. All these concerns, taken together, raise significant questions about the applicant’s claims that he is an opposition political activist who requires protection.
The submissions in this matter contain numerous errors, suggesting they were prepared by a person with a person with only fair English and that they were not checked for basic grammar. Although this results in some unclear sentences, the Tribunal is satisfied that it has been able to establish the intended meaning through context.
The pre-hearing submission states, in the final paragraph: ‘The applicant is in detention center and making him a mental patient’ [sic]. The applicant told the Tribunal that he was feeling fine. In response to the Tribunal’s questions, the representative clarified that this was a general reference to the applicant feeling stressed in immigration detention. The Tribunal takes this into account in the assessment that follows.
The Tribunal notes that the applicant did not identify any concerns about his safety in Bangladesh or any need for protection in Australia, during his interview on arrival or during the visa cancellation process.[3]
§ The submission dated 22 October 2023 appears to state[4] that the applicant was confused and tired on his arrival in Australia, and above all fearful that the Australian authorities might deport him immediately if he declared that he was seeking political asylum.
§ The Tribunal appreciates that the applicant may have been tired after his flight from [another country], and/or unsure how to respond when alerted that he may be refused entry into Australia. At hearing, he said that the agent in [Country 1] who arranged his Australian visa (including the fake visa stamps in his earlier passport) had rehearsed a script with him, with the aim of securing entry into Australia. It appears that the applicant drew on this at his interviews after arriving [in] August 2023.
§ The Tribunal considers it would be unreasonable to make too much of the applicant’s statements immediately on arrival in Australia or draw firm conclusions from them. However, as discussed at hearing and set out in the s.424A letter, they suggest that – in both his visitor visa application and his entry interviews – he has been willing to provide false information to secure entry into Australia. This raises broad concerns that he may be similarly motivated to provide inaccurate information and unreliable documents to obtain residency (even temporary residency) in Australia.
[3] The Tribunal notes this from the arrival interview, and the record of the applicant’s responses to the Notice of Intention to consider cancellation of his visitor visa [in] August 2023. It discussed this at hearing, and invited the applicant’s comments/responses to it under s.424A of the Act.
[4] The relevant part of the text reads: ‘…the reasons he stated he need nine days to travel to Australia was he mortally feared that he might be deported to a country where he fate [sic] persecution’.
Political interests and activities
Primary application: The protection visa application form (completed on 10 August 2023) states that the applicant was affiliated with the BNP, and ‘engaged with [the JCD]’ as a Joint Secretary. As for his employment and income, the form states that his parents supported him financially from [Birth] to 2018, while he was undertaking ‘schooling/politics’.
As noted above, the Department wrote to the applicant on 16 August 2023, requesting detailed information and evidence about (among other things): (a) his claimed political affiliation with the BNP, and engagement with the JCD; (b) his involvement with the BNP, and the position of ‘Joint Secretary’ with the JCD; and (c) any political activity he had engaged in since leaving Bangladesh in 2018. There was no reply.
Evidence to the Tribunal: The pre-hearing submission of 9 October 2023 briefly refers to the applicant as a ‘core activist’ of the BNP.
At hearing, the applicant said that he became interested in politics and the BNP specifically after he joined the college (hence, in [Year]). He said that all his family favours the BNP, but only he and his older brother are politically active. Asked about his attraction to the party, he said that he considers it a good party and one that supports Islam. In response to questions about the BNP’s position on religion, the applicant said that the party favours Islam, although it treats Muslims and non-Muslims equally and welcomes all groups into the party. The applicant’s account was generally vague. The discussion touched on other aspects of Bangladeshi and local politics; the applicant appeared reasonably familiar with these matters. For instance, he explained that in the 2008 parliamentary elections[5] (when the applicant was [age] years old), the BNP did not field its own candidate in his constituency of Sylhet-5, but instead supported Farid Uddin Choudhry from its coalition partner, the Jatiya Party (Ershad).
[5] The BNP boycotted the 2014 parliamentary elections.
DFAT’s most recent country information report on Bangladesh[6] states that the AL and BNP have long dominated Bangladesh politics. In terms of political positions, it reads: ‘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.’
[6] DFAT, Country Information Report – Bangladesh, November 2022, paras 3.65-3.67
Significantly, the report describes Bangladeshi politics as ‘heavily based on patronage’, with personal loyalties to local politicians and influential people being ‘far more important that ideology’. With this in mind, the Tribunal considers it plausible that the applicant favours the BNP, even though he did not appear to have a deep understanding of its platform and positions.
Political activities and profile
The applicant said that his political engagement started at college, which (according to his protection visa application) he joined in [Year]. He went on to say that there was no formal JCD branch at the college when he joined. Some six months or so after starting, he and some fellow BNP supporters set up a JCD committee (in other words, a branch of the JCD). He was then appointed Joint Secretary of the JCD.
Country information discussed at hearing indicates that the major parties’ student wings are large organisations that operate independently; that students often join as a means of networking and getting ahead; and that they often engaged in violence. The most recent DFAT report[7] gives the following overview:
3.90 Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, professionals (such as doctors, lawyers), and labourers. These organisations are sometimes known by other names, such as ‘fronts’, ‘wings’ or ‘leagues’. The largest of these are the student wings, of which many former students are still members. AL’s student wing, the Bangladesh Chhatra League (BCL) has millions of members. The BNP version, the Chhatra Dal, is also active and has been involved in violence in the past. The two sides periodically engaged in violence, for example around Dhaka University and the Dhaka High Court in April and May 2022. Shopkeepers claimed that they had been subjected to extortion by the BCL, protest against which formed part of the reason for the 2022 violence. Protesters used weapons such as machetes and batons.
3.91 The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities.
3.92 There are strong incentives to join an auxiliary organisation. For student organisations, members have access to better university accommodation, jobs upon graduation or business opportunities. Patronage is an important factor – attending protests or supporting a locally powerful person or politician offers protection. The poor are more vulnerable to these pressures – the rich can get opportunities without such networks. While political patronage and connections can be helpful, it does not guarantee opportunities or services; Bangladesh is a developing country with limited government services and a surplus of graduates for limited graduate jobs.
3.93 DFAT notes strong societal pressure for students in particular to join an auxiliary organisation in order to obtain patronage. Auxiliary organisations are often involved in significant violence. There is some element of choice involved; joining a university and becoming affiliated with a violent movement is not compelled by law or threat, but success in university and obtaining a job often depends on such engagement. DFAT assesses those who engage in auxiliary organisations are at a moderate risk of violence, even if they are members of an AL organisation, due to factional infighting.
[7] DFAT, Country Information Report – Bangladesh, November 2022, paragraphs 3.90-3.92
The applicant’s account of his involvement with the JCD at college, and his duties as Joint Secretary, was somewhat laboured. He said that he helped arrange meetings and decided who should attend. He filled in for the Secretary if he was not available, for instance by giving speeches in his absence. He said that the Joint Secretary was the designated successor for the Secretary, in the event that a local JCD committee was dissolved. However, during his period at college, the JCD committee remained in place so he did not advance to become Secretary.
Asked whether he was involved in or witnessed any fighting on campus (either with AL counterparts or within the JCD), he said that there were some clashes with AL supporters. He referred in general terms to having been assaulted several times, including one time when he was stabbed on the [arm], which required treatment in a local clinic.
In relation to politics after leaving college in [Year] (and before his travel to [Country 1] in 2018), the applicant initially said that he contributed to the party by attending processions and large gatherings, noting that it was a period of political chaos. He thought that his JCD committee dissolved some six months after he left college, but he was not sure. Asked whether he had role beyond attending larger events, he added that he used to motivate people to join in these activities. In response to further questions, he said that he later became the co-chairman committee of the JCD in his local union parishad (in other words, the JCD had branches not just at educational institutions, but also at a local level). During this exchange, the Tribunal formed the impression that the applicant was adding to his claims in an improvised way, to address its concerns about his level of political engagement after [Year].
Overall, the Tribunal found the applicant’s account of his introduction the party and its student wing, and his responsibilities in various positions, to be uncertain, repetitive and lacking in detail. It is not satisfied that he was recalling his own personal experiences.
The applicant provided several documents to support his claim to have been a political activist and JCD leader. These included some documents allegedly from that period (e.g. a membership fee receipt, committee list and a newspaper clipping), but no contemporaneous material such as photographs or correspondence showing the applicant’s direct engagement in any political activities.
The applicant provided a copy of a BNP membership receipt, dated [July] 2010. The Tribunal asked about this document, observing that this did not seem to mesh with his earlier evidence that he first became involved in politics at college (i.e. from [Year]) and, even then, it was the BNP’s student wing, not the party proper. The applicant replied that he had earlier been referring only to his formal association with the party. Responding to further questions, he said that his BNP membership had cost round Tk 40-50. When alerted to the receipt, which stated that he paid just Tk 5, he said that was the correct amount. As the Tribunal noted at hearing, these are not large sums,[8] but it nonetheless expects that a secondary school student would remember this kind of payment to a political organisation. The Tribunal found the applicant’s evidence about when he started political activities, whether he joined the party and/or its student wing, and details of any party membership to be changeable and unpersuasive.
[8] At current exchange rates, 5 taka (Bangladesh taka, BDT) is about $A 0.07, while 40-50 taka is about $A 0.57-70.
The applicant also submitted a committee list for the JCD branch at the applicant’s college, dated [January] 2013. This has a list of 21 members, in apparent order of seniority, with the applicant’s name appearing at number 8, as ‘Joint Secretary General. The applicant appeared familiar with the names on the list. He named the General Secretary (for whom he allegedly used to deputise), and the President. In response to questions, he said that the President is currently in [in another country] and the General Secretary in [another country]. He has not had contact with them since he was in [Country 1]; and it has been a long time since he had contact with any former JCD colleagues.
The Tribunal asked how his brother had managed to find a copy of the JCD college branch list from 2013 (particularly since he appeared to have no knowledge of its continued existence after he left in [Year]). The applicant replied vaguely that he had asked his brother to look for them some four or five months earlier (implying that, while still in [Country 1], he had been preparing documents for an eventual asylum application). He appeared to state that, although the JCD is no longer functioning at the college, someone is maintaining their records for if and when a JCD committee is re-formed. While the applicant appeared familiar with aspects of this document (such as the names that appear on it), it is striking that he has minimal contact with or current information about any former political colleagues. This suggests, at the very least, that they are no longer active, and have no ongoing profile or influence. The Tribunal also has concerns as to how the applicant’s brother obtained such a list, i.e. the provenance and genuineness of the document. It considers that, if the applicant had been an office-bearer and committee member, he would have been able to give a more fulsome account of how his brother obtained a JCD committee list that is now over ten years old.
Several documents related to the applicant’s claimed criminal charges arrest include mention of his BNP links:
§ The First Information Report and ejahar of [October] 2013 refer to the applicant (and four other accused) having committed offences while participating in protests linked with ‘the ultimatum of 18 party coalition including officers and forces to bring down the government [sic]’. The Tribunal takes this to be a reference to the BNP-led 18 party alliance of opposition parties which the BNP formed in April 2012 to campaign against the AL government.[9] The charge sheet contains similar language. The Tribunal examines these documents in more detail below.
§ The purported newspaper article from the ‘[named newspaper]’, with the translated date of ’13 July’, has a caption describing the applicant as a JCD leader. The image of the newspaper page includes a photograph that shows a young man (perhaps the applicant) in hand shackles, linked to two other men. Only the title is translated: ‘[Refers to applicant]’.
o At the top left of the page there is a block of Bengali text, untranslated. This appears to be the same text that appears on the purported newspaper page, at the top left, next to the masthead.
§ At hearing, the applicant initially said that the article related to his arrest in [Year] (while he was still at college), but the representative later clarified that the Bengali text stated ’13 July 2015’ and that the year had been omitted from the translation. Asked how he obtained the clipping, the article said that his brother had contacted the journalist who wrote the article, [Mr C]. He ([Mr C]) had retained a copy of the article on his computer (which, the applicant added, is usual practice for journalists). The applicant did not provide any email correspondence from [Mr C] to his brother, or from his brother to him) to give context to this, and the Tribunal found his account of his brother’s ability to track down both the journalist and the article unpersuasive.
[9] See, for instance: BDNews24.com online: BNP-led 18-Party Alliance Emerges, 18 April 2012;
The applicant presented two letters from [Mr B], one dated [August] 2023 (in Bengali with English translation) and a second one (received after the hearing, and in English) dated 22 October 2023. The post-hearing submission describes [Mr B] as [an Official] of the BNP Sylhet District Committee; [Mr B] states that he has worked as [an Occupation 3] since 2018, and has known the applicant ‘for a quite long time’.
§ In the letter of [August] 2023, [Mr B] describes the applicant as an ‘active member of the [BNP], who was playing an active role in all the movements and struggles of the [BNP] from the streets’.
§ In the second letter, [Mr B] lists the applicant’s positions – as a student leader at the college, and ‘Senior Joint Secretary of the college JCD branch – and also goes on to state that he was vice-president of the JCD’s [local branch]. In relation to the last point, this mirrors the applicant’s statement at hearing six days earlier, that after college, he became co-chairman of the JCD committee in his local union parishad.
-As noted above, the Tribunal formed the view that the applicant mentioned this at hearing in a piecemeal, improvised manner, to allay its concerns that he did not have any political role or profile in the period from [Year] to 2018. It considers that [Mr B] penned the letter at the applicant’s request, and to assist him with this application. Given the breadth of its concerns about the applicant’s credibility and in the absence of corroborative evidence to demonstrate [Mr B]’s direct personal knowledge of the applicant’s political work, the Tribunal places minimal weight on the letter as evidence that the applicant held any such positions.
§ While [Mr B] lists various positions that the applicant held, he does not give further insight into his (the applicant’s) political activities or profile in Bangladesh (including in the period after he finished college in [Year] up to his departure from Bangladesh in 2018). Rather, the focus of the letter is the harm the applicant claims to have suffered, and his need for protection.
The Tribunal put to the applicant country information about the prevalence of document fraud in Bangladesh, alerting him that it would examine closely the documents he provided, taking into account their provenance, contents and how they supported his claims. A report from the Canadian Immigration and Refugee Board in 2021[10] draws on various sources indicating that, with high levels of corruption in Bangladesh and limited scope to verify the information in genuine documents, the credibility of Bangladeshi documents is generally low.[11] Reports indicate that, while the increasing use of biometrics has reduced some practices, the use of fraudulent documents, fraudulently obtained genuine documents and documents that contain incorrect information is widespread. This includes instances where political or other figures are prepared to sign documents whose contents have not been checked and/or are inaccurate, to assist constituents or associates, or in exchange for money.
[10] Immigration and Refugee Board of Canada, Rearch Directorate: Bangladesh: Availability of fraudulent documents, especially identity documents, medical files and financial documents; state response (2017–December 2021)
[11] The source for the last comment is Denmark. 15 January 2019. Danish National ID Centre (NIDC). Birth Registration and Birth Certificates in Bangladesh.
The Tribunal notes that the translated texts bear stamps indicating that an advocate and public notary in Sylhet attested, and in some cases, ‘translated and attested’ the documents [in] August 2023, less than three weeks after the applicant lodged the protection visa application, and just eleven days after the Department’s letter of 16 August 2023. Even though the applicant did not reply to the Department prior to the visa refusal decision (22 August 2023), the timeframe within which his brother was (allegedly) able to collect documents from various sources, and have them translated, is also of interest.
Given country information about document fraud, the Tribunal sought details – in relation to the political documents, as well as the police and court documents discussed below – of how the applicant obtained them. The applicant said that his older brother had collected them, adding that he obtained the police and court documents through a lawyer, upon payment of a fee of Tk 65,000.(approximately $A 920). The applicant said that his brother had arranged translations in Sylhet and emailed them to him. He did not provide evidence of his brother having obtained these documents or transmitting them to him in this way.
The Tribunal notes that the documents relating to the applicant’s political activities – such as the BNP membership fee receipt, the JCD [College] committee list, and the newspaper report – are accompanied by images of the Bengali language text. In each instance, the Bengali texts appear to be in very good condition, with no sign of folding, smearing or other blemishes. A different concern arises in relation to the police and court-related documents. The applicant has provided only the (purported) English translations; there is no Bengali transcript, let alone a copy of the original which formed the basis for the transcript.
[Country 1]: 2018-2023
The applicant claimed that he moved to [Country 1] in 2018, in response to politically motivated attacks and false charges in Bangladesh (considered in detail below). In other words, even if it did not offer protection or permanent residence, it was a means of fleeing immediate harm in Bangladesh. The Tribunal notes that [Country 1] is a key destination for Bangladeshis seeking overseas employment and does not accept at face value that the applicant went there in response to threats.
The applicant’s lengthy stay in [Country 1], from 2018 to mid-2013 (with a return visit of ten weeks to Bangladesh) raises questions about the degree of his commitment to domestic Bangladeshi politics (although the Tribunal takes into account that some refugees conduct political campaigns from their place of asylum). In this case, the applicant’s absence of five years from the local political scene adds to doubts as to his level of commitment, and whether he has any profile, influence or network that would be of adverse interest to political opponents, even locally. In this context, the Tribunal notes that he has been abroad during his late twenties, which aspiring political leaders or activists might regard as a crucial period for building their influence.
At hearing, the applicant that he had ‘a relationship’ with a [Country 1] branch of the BNP. Asked for details, he said that he used to attend meetings of a committee of BNP Sylhet supporters; he added that he became a senior General Secretary of that forum. The group met in [City, Country 1], usually on Fridays. There was no dedicated office. The group met either in the ‘president’s office’, or in a restaurant. The applicant did not produce any evidence to support this claim, but noted that he might have some evidence on his mobile telephone. Again, the Tribunal formed the impression that the applicant was adding to his comments, incrementally, to present himself as a BNP political activist.
The Tribunal has significant concerns, and does not accept at face value, that the applicant went to [Country 1] in response to threats in Bangladesh (see below for further consideration of this claim). His stay strongly suggests that he prioritises career and financial betterment, over any political engagement for the BNP. The applicant’s description of his BNP-related activity in [Country 1] was vague, improvised and unsubstantiated. The Tribunal does not accept that he engaged in any social activities in [Country 1] – even with people from Sylhet who might be well-disposed to the BNP – that amounted to political engagement, or that were linked with any BNP programs in Bangladesh.
In sum, the Tribunal finds the applicant’s claims to support the BNP, and to have been a JCD member and office-bearer at college to [Year] (and later, at the local union parishad level) to be lacking in detail, and changeable. The Tribunal has significant concerns about the provenance and genuineness of the documents that he has provided to support these claims. Moreover, the applicant’s circumstances – including his completion of his studies (with a delay due to illness, but no disruption due to political activities), his employment [and] his later move to [Country 1] – all reinforce concerns that he does not have any real political engagement, but places priorities on other aspects of life.
The Tribunal accepts that he is a devout Muslim and may prefer the BNP as a mainstream party that leans towards Islamic causes. It also accepts he may have joined the JCD at college. However, it does not accept at face value that he has any political interests or commitment beyond that.
Past adverse experiences in Bangladesh
The applicant’s protection visa application refers briefly to: (a) assaults in 2014, 2015 and 2016, and (b) false charges from the period 2013 to 2017. As the applicant did not respond to the Department’s s.56 letter, there were no further details before the delegate as of 22 August 2023.
Bangladesh: Events prior to 2018
Assaults
The undated submission sent on 12 October 2023 reiterates that the applicant was subject to assaults in 2014, 2015 and 2016. It gives some information about the attack in 2014, echoing the applicant’s description in his statement of 11 October 2023. This states that in November 2014, some AL activists attacked him at a public meeting, leaving him unconscious. Some local people (‘roadside people’) took him to a local clinic. From this time, the applicant feared for his life. (He suggests a link between this and his travel to [Country 1] in 2018.)
Neither the submission nor the applicant’s statement gives details of incidents in 2015 or 2016. (They go on to describe an alleged attack [in] January 2022, when he returned from [Country 1] to Bangladesh.)
At hearing, the applicant described aspects of an incident in late 2014 when he was attacked, in a somewhat piecemeal way. He said that he attended a gathering of about 80 or 90 BNP supporters, together with his older brother. The local BNP and JCD had called the meeting, to hear the chairman of the union parishad, [Mr D]. AL activists, about equal in number, approached from different directions and started to attack the BNP supporters. In response to questions, the applicant said that numerous BNP people were injured. He lost consciousness and suffered various injuries (though no broken bones). He was taken to a clinic and had to take about ten days off work to recover.
The applicant said that the local BNP was aware of the incident, but powerless to hold the AL to account. Noting his evidence that the AL thugs acted with impunity and that his own party could not address these issues, the Tribunal asked what steps he was able to take. The applicant replied that they could do nothing; the violence continued sporadically.
The Tribunal referred to the applicant’s statement (11 October 2023), in which he wrote: ‘After the above incident, I scared a lot about my life. Afterwards, I was decided to leave the country for my own safety in 2018.’
§ Noting the gap between the alleged incident in November 2014 and the applicant’s departure for [Country 1] in January 2018, it queried whether there was a casual link. It also asked about the applicant’s activities during this period, and the references to further attacks in 2015 and 2016. During the exchange, the applicant indicated that there had been other violent clashes in 2015 and 2016. He did not identify any of these as ‘major incidents’. However, he noted that during frequent hartals (general strikes), processions and other events, his political opponents always targeted him.
§ The Tribunal also queried the references to incidents in 2015 and 2016, but not 2017 or early 2018, when the applicant first departed for [Country 1]. It wondered whether this means that there had been no incidents of note during 2017. The applicant replied obliquely that he started the visa application process for [Country 1] in 2017; it had been lengthy. The Tribunal was unable to gain any further insight as to whether this meant that there were no targeted assaults or fighting during this period (and if so, why not).
The Tribunal notes the references to assaults in [Mr B]’s letter of 22 October 2023, though not the earlier one. For the reasons stated above, it places minimal weight on these letters as independent corroboration of the applicant’s experiences.
The Tribunal found the applicant’s claims regarding the assaults unconvincing, and does not accept that there were any such incidents. First, for the reasons stated above, it does not accept at face value that he engaged in any BNP politics, at a grassroots level or in any position in the JCD or the BNP. Second, the applicant’s listing of the years in which the assaults occurred – i.e. that they were in 2014, 2015 and 2016 – comes across more of an intellectual exercise, rather than a genuine recollection of past events. The applicant’s vague and changeable evidence as to any violence he was involved in in the preceding years ([Years], when he claimed to have been a JCD office-bearer at college) or in 2017 and 2018, reinforce the Tribunal’s doubts that he was drawing on personal experiences. Finally, the applicant’s account of the alleged incident in late 2014 appeared to be a general description of street fighting (rather than an attack directly targeting him), with scant information about its aftermath, only a reference to a ten-day stay in a local clinic. The applicant’s continued work at the [workplace] and residence in the family home up to his departure from [Country 1] in 2018 reinforce the Tribunal’s doubts.
Taking all these concerns into account, the Tribunal does not accept that AL activists targeted and assaulted the applicant at any time prior to his departure for [Country 1] in 2018. The Tribunal finds instead that the applicant went to [Country 1] for unrelated reasons, such as employment and income opportunities.
False charges
The applicant referred in his protection visa application to ‘false charges’ that were made between 2013 and 2017, without further details.
§ As the Tribunal noted at hearing, in the ‘Character declarations’ on the form, the applicant answered ‘no’ to a range of questions, such as whether he has been charged with any offence awaiting legal action, whether he has ever been convicted of an offence, and whether he has ever been the subject of an arrest warrant, and similar questions.
§ The applicant replied vaguely that he recalled mentioning the false charges during a telephone call (in other words, he completed the form by providing information to the representative by telephone).
§ If the applicant and/or representative are suggesting that the questions in the ‘character declarations’ on the protection visa application form are somehow qualified (for instance, by reference to offences that are not politically motivated), the language of the form does not support this interpretation, In any event, the Tribunal draws no adverse inferences from the applicant’s responses on pages 23-24 of the online form.
The applicant’s statement of claims dated 11 October 2023 refers to a number of politically motivated cases having been filed against him. He attended court, and was ‘jailed for 23 and 28 days’. He added that there are currently three cases pending further court action. There was no detail of the dates, charges or processing of the cases.
At hearing, the applicant said that he was involved in five false cases, involving charges of multiple offences. In response to the Tribunal’s questions, he gave some further information:
§ The most serious charge he faced was of assaulting a police officer, in 2013. That case is ongoing, and he had engaged a lawyer to act for him in the matter.
§ Asked about any periods in custody, the applicant replied that he was held for 23 days in 2013, and for 28 days in 2015. These charges related to assaulting a police office, and cutting down trees. The applicant said that the criminal proceedings are still ongoing.
§ Asked whether he ever received a summons to attend court, the applicant said that there was a warrant of arrest against him. This occurred when he returned from [Country 1] to Bangladesh (i.e. January 2022). He was granted bail, on condition that he attend the court, but instead he returned to [Country 1].
§ The Tribunal asked whether these proceedings had any impact on the applicant’s ability to obtain passports in 2016 and 2021, and to depart Bangladesh. In reply, he said that he completed the passport application form, and engaged an agent to ‘somehow’ obtain it for him. Although he indicated that the agent ‘made the passport’, the applicant clarified that he did not mean to indicate that the passports were fraudulent.
Country information indicates that the AL government uses a ‘pattern of violence or discrimination’ against its political opponents, including false criminal charges. DFAT[12] describes these in the following terms: “False criminal charges and vexatious civil court procedures are used to harass members of the BNP. […T]he 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.”
[12] DFAT, Country Information Report – Bangladesh, November 2022, paragraph 3.83
The applicant did not appear familiar with criminal procedure in Bangladesh, and the Tribunal takes into account that his references to ‘arrest warrant’, summons and similar processes may seem imprecise or confusing. He provided a number of documents relating to these charges. Significantly, these appear to be English translations of (purported) transcripts (in Bengali) of police and court documents. The applicant did not provide copies of either the original police and court documents, or of the Bengali transcripts.
The ‘translated’ texts all bear stamps indicating that they were translated and attested by an advocate and public notary of the ‘[Court, Sylhet]’, [in] August 2023. The translations are of poor quality. Below is the Tribunal’s summary of what the documents appear to state:
§ A First Information Report (FIR) and accompanying ejahar (complaint) dated [October] 2013 allege that the applicant and four co-accused participated in a protest at 5:40pm that day. They were armed with sticks, iron rods and knives and created terror. They did so as part of the 18-party coalition (opposition parties), with a view to overthrow the government.[13]
§ A charge sheet dated [December] 2013, which refers to the earlier FIR, lists 21 accused, and recaps the alleged offences that the applicant and the four co-accused committed [in] October 2013.
§ A warrant for the applicant’s arrest, also issued [in] December 2013.
[13] The Tribunal notes that the translated FIR gives the date of the offence as [October] 2013, but records the signatures of the ‘copying assistant’ and court administrative officer as [August] 2023, and, under ‘results of the case’, the [Town] Police Station Officer-in-Charge’s signature as having been made [in] October 2023 (two months after the translation was made). The Tribunal infers from this is a clerical error, and that the date of the police officer’s signature should read ‘2013’. The 2023 dates appear to refer to when the transcript was (allegedly) prepared.
The applicant also submitted a more recent document related to these incidents, namely a purported court order dated [August] 2023. The translation seems to indicate that there had been a court hearing that day, which had been adjourned to [September] 2023, as the witnesses had not appeared. The court order notes that, of 21 defendants, the applicant ‘has been absconding ever since the incident (i.e. since the date of the alleged offence [in] October 2013)’. It ordered the issuance of an arrest warrant for the applicant.
As noted above, the Tribunal discussed with the applicant country information about the prevalence of document fraud in Bangladesh, including the fabrication of purported police and court documents, and the availability of letters of support that contains unreliable information. In the present case, the applicant has produced no copies or Bengali language transcripts of the purported First Information Report and ejahar, charge sheet, or warrant of arrest. The Tribunal has before it only English translations that the applicant claims accurately reflect the original documents.
The Tribunal has multiple concerns about these claims and supporting documents. First, given its findings about the applicant’s political interests and activities, and its broader doubts about his credibility, it does not accept at face value that the court-related translations are based on any documents that exist. Second, it found the applicant’s references to there being five criminal cases, and his past detentions (of a specific duration), to be somewhat rehearsed; he appeared unable to provide meaningful detail about the various occasions and what occurred. Third, the applicant’s knowledge of the cases, his account of having legal representation and his evidence about the practical consequences were vague and mostly unsubstantiated. If the applicant were subject to multiple false cases that are subject to lengthy court processes, the Tribunal expects that he would be able to speak with some confidence about the actual cases, and their impact on his life in Bangladesh, including his ability to obtain a passport and leave the country. Finally, the applicant wrote that, despite the ongoing criminal charges, he returned to Bangladesh in January 2022 after ‘one of [his] nephews who work[s] with the army promised to help resolv[e] the pending cases’. He repeated this claim at hearing, adding that while he was there, he had to obtain bail from a court in Sylhet. The Tribunal finds unconvincing, and does not accept, that the applicant voluntarily returned to Bangladesh in early 2022 – on the assurances of a nephew and/or the expectation that he would obtain bail from a local court – and yet fears returning in late 2023 due to the same criminal charges.
The applicant also provided a copy of a newspaper article which appeared in the Bengali language ‘[named newspaper]’, on page 2. This appears to show a photograph of three young men handcuffed together in a public space, being led away by two men, with a number of other people standing behind. The article is dated 13 July. At hearing, the applicant initially referred to this as relating to the (alleged) arrest in 2013, but the representative later advised that the Bengali language text gave the year as 2015, which had been omitted in the English translation. The caption reads: ‘[Refers to applicant]’. At hearing, the applicant explained that [Location in caption] is a prominent location in Sylhet city.
The Tribunal has significant concerns as to the provenance of the document, the uncertainty as to its date, and the lack of context surrounding that (claimed) arrest. Although the applicant has been in Australia for only two months, the Tribunal considers this to be a reasonable period within which he could reflect on and seek to set out any legal or police issues that he experienced in Bangladesh. Given these concerns, the Tribunal is not satisfied that the image is of a genuine newspaper article published in 2013 or 2015; it is also not satisfied that, even if the applicant’s image appears in that photograph, it is a genuine photograph of him being arrested and placed in shackles, on politically motivated false charges.
Taking all of these concerns into account, the Tribunal does not accept that the applicant has been subject to any false criminal charges, or detained or arrested, or that he has any concerns relating to these matters.
Bangladesh: Events in 2022
The applicant’s statement of 11 October 2023 contains claims relating to his return visit to Bangladesh, from January 2022 to [March] 2022. (The submission sent on 12 October 2023 essentially echoes these points.) They are, in summary:
§ In 2022, he returned to Bangladesh after an absence of four years. He had hoped that his political enemies would have forgotten about him ‘for reason of long gap of political activities [sic]’. In relation to the ongoing criminal cases, a nephew in the Army had promised to help him try to resolve those.
§ The applicant had four months’ leave approved for this holiday.
§ [In] January 2022, four named AL leaders and about 25 other people attacked him. The applicant spent seven days recovering in a clinic. The applicant got married [in] February 2022.
§ [In] March 2022, a group of AL ‘criminals attacked the applicant at 9:00pm [as he] was returning home’ from Sylhet city. He wrote: ‘I finally understood that my life is not safe from Bangladesh’.
§ In response to this attack, the applicant brought forward his return trip to [Country 1], and departed three days later, [in] March 2023.
§ This attack convinced the applicant that his life would not be safe in Bangladesh at all. On his return to [Country 1], he engaged an ‘agent’ to help him find a place of permanent refuge.
At hearing, the applicant confirmed the gist of these claims and, in response to the Tribunal’s questions, provided some further details. He emphasised that he had originally planned to stay in Bangladesh for four months but had to return early after the attack [in] March 2023. He was unsure whether he had documentary evidence to show that he brought forward his return to [Country 1]; he has not produced any since.
In relation to the incident [in] January 2022, the applicant said that he had gone by motorcycle to Sylhet city to do some shopping, about 40 to 45km from his home. He thinks that it was a Sunday. As he approached a large group of AL group men approached him. He named five of these people. He said that he had no idea how they knew his movements (in other words, he was intimating that it was a premeditated, targeted attack). All the men were involved in the attack, punching and kicking him, and reaching out for him with knives. Asked about any injuries, the applicant said that he had a cut to the [side] of his [body], and had been bleeding profusely. He went to a clinic, where the wound was dressed. He stayed there for seven days recuperating. The applicant said that he suffered bruises on other parts of his body. Had the attack occurred in a less busy area, he believed that he would have suffered more serious injuries.
The applicant confirmed that he married [in] February 2022 (i.e. just 12 days after the alleged attack, and about five days after his release from the clinic). He said that the wedding ceremony took place at his family home. In response to questions, he said that he had recovered from the attack by the time of the wedding; all that remained was the scarring from the cut to his [body]. The Tribunal wondered why, if AL activists had targeted and attacked him 40-45km from his home, his family risked holding a large event at the family home. He replied that it had been pre-arranged.
The applicant said that there was a second attack, on [in] March 2022. On this occasion, some five or six AL activists whom he had previously seen during political clashes beat him with rods and threw stones at him. This also occurred near Sylhet city; on this occasion, he was on his motorcycle and about 2km outside the city. The applicant said that his attackers broke a light on the motorcycle, but he managed to ride off without injury. He convinced his newly wed wife that it was unsafe for him in Bangladesh, and he brought forward his return flight to [Country 1]. As noted above, he has not produced evidence (such as email confirmation) of having changed his flight bookings to arrange a seat at short notice.
The applicant claimed that, after his return to [Country 1], he started enquiries and contacted an agent to explore options for permanent residency in a safe third country. The Tribunal accepts that the applicant explored migration options to third countries, but finds in light of the findings above that he did so for reasons unrelated to any political interests, or to any other aspects of his protection claims.
Recent court action
The applicant also submitted English texts (again, purported translations of court documents) of a court order dated [August] 2023 noting that the applicant failed to appeared to appear in court, and issuing a warrant for his arrest. The timing of this renewed court action – just days after the applicant’s arrival in Australia – is striking. More significantly, the Tribunal has the same concerns about it as the applicant’s previous claims and documents. It does not accept that this text is based on any genuine document, or that the applicant is subject to any ongoing court action, including any arrest warrant issued in August 2023.
Summary of findings
The Tribunal accepts that the applicant is a reasonably well-informed observer of local and Bangladeshi politics, and that he favours the opposition BNP and/or other parties that lean towards Islamic values. It accepts that he may have joined the JCD at his college, but does not accept that he was an active member or office-bearer, in the JCD; or that he has any other political engagement or profile since leaving college in [Year].
The Tribunal therefore does not accept that the applicant was assaulted in the course of political activities, in 2014, 2015 or 2016, or indeed at any time. It also does not accept that he has been subject to any politically motivated false charges. The Tribunal finds that the applicant went to [Country 1] in 2018 for reasons unrelated to his protection claims; that he returned to Bangladesh without any fears for his safety (or the need to rely on any assurances that he could avoid court action). It does not accept that the applicant was subject to any politically motivated assaults or any other harm when he was in Bangladesh in early 2022 and that, if he did indeed cut short his visit to return early to [Country 1], he did so for unrelated reasons.
The Tribunal does not accept that the applicant genuinely fears persecution or significant harm in Bangladesh, for reasons of any political preference he may have for the BNP, or for any other reasons.
ASSESSMENT – REFUGEE CRITERION
The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct and relevant country information, he has a well-founded fear of persecution for any reason set out in s.5J(1) of the Act, on his return to Bangladesh, now or in the reasonably foreseeable future.
The applicant told the Tribunal that he obtained two months’ leave from his employer in [Country 1], and having failed to return to work, he no longer has work there. He went on to state that he will not be permitted to return to [Country 1] for five years. The Tribunal finds on the available evidence that the applicant would return to Sylhet, reunite with his wife and young child, and look for accommodation and work in that area (at least initially).
The submission received on 12 October 2023 includes copies of articles and reports referring to, among other things: (a) government targeting of opposition figures, human rights campaigners and journalists in Bangladesh; (b) Bangladesh’s Digital Security Act, and the government’s pursuit of journalists as well as individuals who have posted critical comments on social media; and (c) Australian parliamentarians’ concerns about Bangladesh’s human rights violations. The submission describes the applicant as a ‘leading activist of the BNP’, and contends that ‘if the AAT accepts that [he] was actively involved with the BNP in Bangladesh, his claims that he has been targeted by the Awami League are consistent with country information.
Curiously, the submission also states that ‘so long as the AAT does not make a finding against the applicant under s.5J(6) […], [there is] a real chance that [he] will face serious harm if required to return to Bangladesh. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee. In the present case, the applicant has not presented any claims or evidence based on his conduct in Australia, which is not surprising given that he arrived here only [in] August 2023 and is in immigration detention. He has also not claimed, or provided evidence to suggest, that he has posted material on social media. The Tribunal infers from this that the reference in the submission to the operation of s.5J(6) and the country information relating to online publishing (and similar activities), are not relevant to the applicant’s circumstances.
The Tribunal has found that the applicant may prefer the BNP and have been involved in the JCD at college, but that he has no further political commitment or interest; that he has not been subject to past assaults; and that there are no ongoing criminal cases against him. It has rejected all associated claims, including that he is subject to an arrest warrant. It finds that, if he returns to Bangladesh, he may follow local politics and continue to favour the BNP. However, it does not accept that he has any political opinion that will motivate him to engage in any political activities, including even participation in large gatherings as a supporter or member. It follows that the Tribunal does not accept that the applicant will not need to take any steps – whether ‘reasonable’ or of the kind set out in s.5J(3) – to avoid a real chance of persecution.
Based on its findings about the applicant’s past experiences as well as country information, the Tribunal is not satisfied that the applicant faces a real chance of the Bangladesh authorities, AL agents or anyone inflicting serious harm amounting to persecution on him merely because he favours the BNP. For the reasons stated above, the Tribunal does not accept that he has any adverse profile – whether for the (now-rejected) political reasons, such as past assaults or false criminal charges, or for any other reason – that could increase the chance of him being subject to future targeting.
The applicant has not claimed, and there is nothing before the Tribunal to suggest, that he faces a real chance of persecution for any reasons other than his claimed political opinion.
100. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds that he does not face a real chance of serious harm amounting to persecution, for any reason set out in s.5J(1) of the Act, in Bangladesh, in the reasonably foreseeable future. He therefore does not meet s.36(2)(a).
ASSESSMENT – COMPLEMENTARY PROTECTION
101. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.
102. The Tribunal’s findings of fact, its views on the applicant’s future conduct and its analysis of country information are relevant when assessing his applicant’s eligibility for complementary protection. Having regard to all this material, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
103. The applicant’s claims, and the evidence (including country information) that he submitted, allude to Bangladesh’s poor human rights record, restrictions on political freedom and corruption. The Tribunal accepts that these contribute to a markedly lower quality of life, compared to Australia. However, it is not satisfied that the applicant’s return to Bangladesh gives rise to a real risk that he will suffer significant harm as defined in the Act. As such, the Tribunal does not need to consider whether – if there were such a real risk – it would fall within the scope of s.36(2B)(c).
104. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. He therefore does not meet s.36(2)(aa).
Overall conclusion
105. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. 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).
106. 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).
107. 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
108. The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Silva
MemberATTACHMENT: 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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