1409316 (Refugee)

[2015] AATA 3536

1409316 (Refugee) [2015] AATA 3536 (31 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409316

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Magda Wysocka

DATE:31 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the directions that:

·the applicant satisfies s.36(2)(a) of the Migration Act; and

·the grant of the visa is not prevented by s.91WA.

Statement made on 31 August 2015 at 4:11pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] March 2013 and the delegate refused to grant the visa [in] May 2014.

3. The applicant appeared before the Tribunal on 13 November 2014 and 30 July 2015 to give evidence and present arguments. 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 by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

16. ‘Significant harm’ for these purposes 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.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant arrived in Australia [in] March 2013 on a visitor visa. Information provided by the applicant in her protection visa application includes that she was born [in] Sylhet, Bangladesh. She is Muslim, single and lived in [Village 1], Sylhet division. She finished ten years of education in [year]. She worked as a [occupation deleted]. Her parents, [and siblings] reside in Bangladesh.

20. The protection visa application was accompanied by an undated signed statement entitled ‘Statement of claim- [by the applicant]’ setting out the applicant’s claims and is summarised below:

    a.She was born in [Village 1], Sylhet, Bangladesh. Her family is well known in the area for helping people, which she also learnt to do.

    b.She always believed in women’s freedom and the opportunity to become independent. She encouraged other girls to get an education and told them to work and become independent afterwards. She believes in women’s education, financial independence and women’s freedom.

    c.After finishing high school she decided to work in a [business] in her district town, about 40-50 km from home. She would finish working at night and return home. Sometimes a few fundamentalists disturbed her and talked against her.

    d.Other girls from her area asked about her work because they were interested in working like her. She gave them advice and got them jobs in another [business] in town. People from her village knew that the applicant helped get the girls work, which religious fundamentalists disapproved of.

    e.One fundamentalist called her a prostitute and accused her of helping other girls become prostitute. He told her to stop her work and to stop helping other girls and threatened to abduct and rape her if she did not listen. She was told that if she wanted to live in the village she had to stop working and stay at home. The applicant threatened to go to the police but was told that no one could stop him and that they have connections at high levels.

    f.The applicant went to the police who did not take her case and told her to stop working at night and to stay at home.

    g.While she was returning home from work at night, a few fundamentalists tried to abduct her. She ran but they followed her. She started shouting and went to a house seeking help. The fundamentalists left and her parents came. Together they went to the police station but the police again refused to take her case.

    h.She was very scared and contacted a relative who helped her get an Australian visa through an agent. If she returns to Bangladesh, fundamentalists will abduct, rape or kill her in the name of religion. The authorities will not help her.   

21. Following her interview with a delegate of the department the applicant provided another statement of claim dated [in] January 2014 (‘the second statement’) along with various documents to the department. The second statement was entitled ‘statement of claim- [by the applicant]’. The statement is identical to the one provided with the protection visa application except for the third last paragraph, describing the incident when the applicant was stopped by fundamentalists while coming from work. The information contained in the second statement is as follows:

    a.When the fundamentalists tried to abduct her, she tried to run but tripped and fell. She started calling out and all of them ran away except for one who caught her and raped her.

    b.After this the man tried to kill her but she called out for help and fought him off until she was able to run away. She then went to a house from where her parents took her and went to the police station.  

22. Accompanying the second statement were various documents including;

    a.A copy of a Bangladesh birth certificate listing the applicant’s date of birth as [date].

    b.Various documents regarding the applicant’s mental health including letters from her GP and a letter from her psychologist advising the applicant has developed Post Traumatic Stress Disorder symptoms.

23. [In] May 2014 a third statement from the applicant was received by the department, listing the applicant’s date of birth as ‘[date]’. In that statement, she described how an acquaintance tried to rape her, threatened to upload photos of her, claimed to have used her name in a protection visa application, called, followed and threatened to blackmail her. She claims she was taken to hospital after cutting her herself to get away from him and provided photos.   

24. The delegate refused the application due to serious concerns regarding the veracity of the applicant’s claims as a result of inconsistencies in her written and oral evidence. The delegate accepted that ‘working women in Bangladesh’ constituted a particular social group. The delegate found that the applicant would be afforded with effective state protection from the Bangladeshi authorities.

    Tribunal proceedings

25. Prior to the first hearing, the tribunal received various documents including submissions and a detailed statement from the applicant. Information contained in her statement regarding her claims in Bangladesh are summarised as follows:

    a.She was born on [date]. The village she grew up in was very conservation but her family was more liberal. Women in her village experienced a lot of harassment and did not often leave the house or work outside. Girls in her village usually married around 14-15 years of age. The applicant always had strong views on women’s rights and always wanted to study and earn money.

    b.In 2011 she got a job at [a] [business] in Sylhet through a friend. She wanted to earn some money to help provide for her family. She worked every day apart from Mondays usually from 10am- 9pm. She travelled to work by bus and had to travel back alone at night. She enjoyed her work but people in Bangladesh do not have a high opinion of women who work especially in [a particular business]. Her parents were apprehensive but permitted her to start work anyway. In addition to her work in the city, the applicant would also help girls in her village prepare for their [events].

    c.Four or five months after she started working at the [business] she helped three girls from her village get temporary jobs with her at the [business]. After a few months the girls found jobs elsewhere. After she came to Australia she heard that one of the girls had disappeared and no one knew where she was.

    d.She experienced a lot of harassment and abuse from village men due to her job. They called her a prostitute and told her working as a woman was against Islam. She started to receive threats and some men threatened to kill or rape her if she did not stop what she was doing. Her father did not want her to continue working but also wanted her to keep earning money. He and the applicant’s brother took her to the police who told her she should stay at home and refused to write a report.

    e.On the night she was raped, four or five men waiting for her at the bus stop at night. She heard a man named [Mr A] said ‘she is here’. She ran and they chased her. She tripped in an alley where [Mr A] caught her, dragged her to a field and raped her. She managed to kick him and he fell and she managed to run to her auntie’s house. The men ran away. Her father took her to the police who did not write a report and to a pharmacy for medicine. Her parents took her to a friend in Sylhet and then to a hospital. She thinks she was there for a couple of months.

    f.After she was discharged her parents took her to a [relative’s] house in Dhaka. Her father remained with her and started making visa applications for her to leave Bangladesh. She does not remember much about what happened during this time. She was not well and made several suicide attempts. She recalls going to the Dhaka passport office with her father and having her photograph and fingerprints taken.

    g.Her lawyer advised her that her tourist visa application contained a copy of a passport issued in her name in [2009]. She does not know anything about it or why her passport states that her date of birth is [date].

    h.Her father arranged for an agent to make a visa application for Australia. Her lawyer told her that her tourist visa application says she is married to [Mr B]; she does not know anyone by that name and has never been married. She assumes this information was provided to help her get the visa. She does remember going to various embassies with her father, the agent and another man named [Mr B].

    i.After lodging her visa application, she was taken back to hospital because she kept crying and had attempted suicide. She cannot remember how long she remained in hospital. She went to stay with her aunty after being discharged.

    j.One day her father, aunt and uncle took her to the airport, where her father told her she was going to Australia and gave her a ticket, her passport, a phone and US$1000. Her father told her not to return to Bangladesh.

    k.After she arrived in Australia she spoke with her father who told her that people were saying things about her and threatening him. Those people lit a fire in the cattle shed at their home.

    l.After her visa was refused she spoke to [Mr C]. He was in hospital and said that [a senior official] had hit him. Her aunt confirmed this and later said that police had issued an arrest warrant for her [brother] who had made complaints to the police about the applicant’s rape. As a result people in the village made false accusations against him. She does not know the whereabouts of her family. Her auntie said the police are searching for her family to arrest them.

26. Information set out in the applicant’s statement regarding her protection visa application is summarised below:

    a.She met a Bengali man at the airport who took her to immigration in [Australia] and helped her complete her protection visa application. She could not tell him everything because he was male and she did not feel comfortable.

    b.Her friend and housemate [Ms D] accompanied her to the departmental interview. She was given a male interpreter who spoke formal Bengali which she does not understand properly because her village speaks a different dialect. Because the interpreter was male she was uncomfortable explaining what happened to her. The case officer was aware of this and asked [Ms D] to interpret parts of her story. [Ms D] is not a qualified interpreter and her first language is Punjabi. [Ms D] speaks to the applicant in Punjabi and she responds in Hindi.

    c.Some of the information [Ms D] said at the interview was not correct. Because of the communication problems during the interview, the case officer said that she would schedule another interview but never did this. The case officer also requested the applicant provide a further statement outlining her whole story which she did.

1. In her statement the applicant further stated that she experienced problems in Australia that affected her mental health, her ability to recall information and to express herself and referred to the attempted sexual assaults by an acquaintance named ‘[Mr E]’, whom she believes police have taken action against. She further states that:

   a.She fears that she will be beaten, raped or killed by fundamentalists who were targeting her if she returns to Bangladesh. She fears they will throw stones at her or cut her hair.

   b.She cannot get protection from authorities in Bangladesh because she is female and they consider her to be un-Islamic. Her family is also poor and the authorities do not respect them.

   c.It is not possible for her to relocate to a different area of Bangladesh because it is not safe for females and not possible to live alone as a female in Bangladesh.

2. The submissions referred to country information, addressed the applicant’s credibility, procedural issues at the department interview that impacted the applicant’s ability to give evidence including interpreting issues and the delegate’s failure to provide a second interview and referred to the following grounds for protection:

   a.The applicant’s religion and/or her membership of the following particular social groups: women/young women/working women/single women in Bangladesh; women who breach religious/cultural norms and women without male protection.

   b.The denial of state protection for a Convention related reason, namely her gender.

   First Tribunal hearing

3. The applicant appeared before the Tribunal on 13 November 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the (Sylheti) Bengali and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. The applicant gave the following evidence about her background. Her date of birth is [date]. She is currently living with two Indian girlfriends. She speaks Sylheti Bengali and also Hindi.

5. She was born in [Village 1], Sylhet district. She mostly lived in [Village 1] but before she came to Australia she was living with her [relatives] in Dhaka for approximately 2-3 months.

6. Her father was a farmer; her mother was a housewife. She does not know where her parents are living right now. She last spoke to them about 8-9 months; at the time her brother was in hospital. She then clarified that she did not speak to her parents then; she cannot remember when she last spoke to her parents but it was after she came to Australia.

7. She has [siblings]. Her [brother lived in Village 1] was unmarried and worked in [occupation]. The other brother is [Mr F] unmarried and working in a [facility]. Her sister [is] a student.

8. She sometimes speaks to her aunt in Dhaka. She has other relatives in Bangladesh but they are not in [Village 1].

9. The tribunal asked her who [name] was. She stated that it is her cousin. The tribunal asked her why this person is listed as her sister in the visa application. She stated that she did not write it; the Bangladeshi boy, [did]. The tribunal asked why he would say she was the applicant’s sister. She stated that probably while he was asking about her siblings, she must have mentioned the cousin as well. The tribunal asked why one brother was not listed while the other one was but with a different date of birth. She stated that at that time she was sick and she did not know what he wrote or what she replied, [the boy] wrote it by himself.

10. She finished [school in a stated year]. She stopped school because she found her job. Also the college was far away from her village and there is a mentality in her culture that girls don’t need to study much. She got a job at [a] [business] in Sylhet city probably in 2010 or 2011. She had training in [occupation] and preparing [for special occasions]. This was the only place she worked in Bangladesh. She has not worked in Australia.

11. The tribunal asked her to describe life in her village. She stated that the mentality is that elderly persons do not want girls to study more and if they go outside they have to wear hijab. Muslim girls should not work. They think that girls are a burden. Young people were compelled to follow the elderly people. Most people agreed with that view. Most people are farmers working in the village. Her family had a little bit of land.

12. The tribunal asked about her family’s views. She stated that the village is like that if someone does not pray, they put a necklace of shoes on them to shame them. So her family has to follow the rules of the village. Her family is not as strict as others about going to prayer. Both of her parents are a little bit literate. She studied the Quran. It never said that women should not go to work. These people are practicing something different than the Quran. Sometimes wives are beaten by their husbands but this is not allowed in the Quran.

13. The applicant stated that people noticed her family was not as conservative as others in the village and this caused problems. The elderly persons called her father to the mosque and said that he should stop his daughter from working especially on Fridays. Her family also had problems by not going to mosque. After the tribunal raised her earlier statements that her family had to follow the rules of their village, she stated that they did have to go to mosque to conform.

14. The applicant was asked why she felt so strongly about women’s rights to education, work and independence. She stated that she watched television and was studying books and understood that if she had money she could be independent. Otherwise they will be tortured. When asked what she meant by this, she stated that, for example, after marriage, girls are beaten by their husbands, girls are considered to be a burden. She saw this every day in her village. Girls in neighbouring houses were being beaten.

15. The tribunal asked her why she decided on working at [this particular business]. She stated that she heard from friends and went for the job. A friend from school’s cousin was working[at this business]. Her parents were happy and did not have any problems with her working. The [business] address was [a given address]. Her workplace was 40-45 km from her town. She went by bus and it took almost one hour to get there.

16. Five women, all from Dhaka, worked there with her. Her friend’s cousin got the job for her because she used to go to the [business]. She [would use the services of the business].

17. The tribunal asked if she faced any problems in Sylhet due to her work. She stated that boys pushed her out of the bus and pulled her scarf. They used bad words. It is what they do to young girls who are alone.

18. The tribunal asked her about the harassment she faced in her village. She stated that while she was walking she was told many bad words. They said she was a prostitute. They knew what work she was doing. When she went to the [business], she took other girls from her village. They came back and said the applicant was doing very well.

19. About 4-5 months after she started working, some girls in the village asked her for a job so she took them with her and they also got jobs. Some worked part-time in her [work place] and others were in other [work places]. There were four of them altogether; first three girls came and another came later.

20. The tribunal asked what people’s reaction was to her helping these girls. She stated that elderly people said that she was doing un-Islamic work and she was taking other girls to do that work as well. The girls’ families were in a dilemma. She spoke to the girls’ families; they were in fear of those people but did not want their daughters to stop working.

21. One night she got off the bus returning from work. Some people came and called her a prostitute and that she was doing bad things. She told them she was working at a [particular business] and that they could come and see for themselves. She told them not to use these bad words again. They asked her to stop working but she told them she could not. They told her they would join with other people from the village to kidnap, rape and kill her. That boy told her this was her last warning. When she told her parents, they informed the police. The police told her parents to tell the applicant to stop her work and stay home. She told the police they had no right to ask her to stop work and stay at home. She does not remember when this incident occurred.

22. On a Friday night, she cannot remember the date, she was also returning from work. [Mr A] and some other young people from the village were waiting for her. When she got off the bus, they said ‘she is coming’. She understood that they were focused on her. She started running. When she realised they were chasing her she left the main street and took a short cut home. She saw that only [Mr A] was chasing her. She fell down and [Mr A] caught her. He pushed some clothes in her mouth and took her to the jungle. She was fighting with him. He did ‘misconduct’ with her. After raping her, he tried to kill her by holding his hands around her neck. While fighting, she kicked his stomach and he fell down. She started running and raced to her aunt’s house. She knocked on the house and they opened the door and asked her what happened. They saw the blood from the scratches. She is not sure how her parents arrived; maybe the shouting or her aunt told her parents. Her parents took her to the police; they asked her why they brought her there and that she should go to the doctor. The police did not take their case. Then her parents took her to the hospital. She was in the hospital for a long time.

23. The tribunal asked the applicant questions about the first incident she had described, when she received the ‘last warning’. She stated that they tried to forbid her to work and also told her father that he should forbid her. Many times people shouted at her but this was the major time that they threatened her. When she said she’d go to the police, they said that they had high connections in the police. It was 4-5 people who did this, including a man named [Mr A].

24. [Mr A] is the main ‘elderly person’s’ brother. She does not mean elderly in age but in power. Other people are compelled to listen to him. The tribunal asked what position [Mr A]’s brother has. She stated that he has connections with major leaders. He is doing politics. The tribunal asked whether he has a political position in the village. She explained that once upon a time his [relative] was a [senior official] of the village. Then she stated that [Mr A]’s brother was [a cleric] of the mosque in the village. She did not personally know [Mr A]. He is a young man.

25. The tribunal asked her what people had said to her father. She stated that in her village the imam and the ‘mutawwadi’ are the ones who have power and people have to agree with them. She was asked what her father did when these people approached him. She stated that they went to the police and her parents told her to stop working but she said why should she? She was scared but she knew she was not doing anything wrong.

26. She then clarified that her father did not go to the police alone. He just advised her to stop her work. Then she got the threat and then they went to the police together.

27. The tribunal asked the applicant why these men were targeting her. She stated that first she is Muslim and second she is a girl so she should stay at home. She also took other people to work with her. The fact she worked at all was a problem but also [this particular] work was considered un-Islamic. According to her knowledge, other women in her village did not work outside the home.

28. The tribunal asked if she remembered how many men there were during the night she was raped. She stated that she did not count but it was 5-6 including the same people who had threatened her. It happened about a week after the threat. It was a Friday night. That was another problem; on Friday people generally do not work on Fridays so they blamed her for doing un-Islamic work. When she was knocking on the auntie’s door, she saw all of those men standing not far away.

29. The tribunal asked her where the hospital was that she was taken to. She stated that her parents contacted another uncle who said her condition was serious because blood was coming through her throat. One of her mother’s aunties is in Sylhet and told her to bring her to the hospital there. The applicant advised that the closest hospital to her village is in Sylhet.

30. The tribunal asked her what kind of treatment she needed in the hospital. She stated that it was treatment for mental depression and she was scared and shouted frequently so they gave her an injection.

31. After she left hospital she went to her auntie’s house in Dhaka. Her parents told her she cannot go back to her village because those people were still looking for her and would kill her.

32. Her father, uncle and an immigration took her to the Australian Embassy. She did not realise what it was at the time. When asked if she went to any other embassies, the applicant stated that she does not know if they took her to any other embassy; then she stated that they took her to another embassy but she did not know that it was an embassy.

33. She claimed that she did not know anything about her visa application and how that was arranged. When asked, she stated that she cannot remember if her father told her anything about what he was doing. The tribunal asked if she was ever asked to do anything regarding visa applications. She stated that she was asked to sign something. She does not know what it was. She was not mentally fit at the time. She also had to give her fingerprint at an embassy. There was another man when she was going to the embassy; his name was [Mr B]. She had never seen him before. She submitted the application with him. At that time she did not know the reason for this, now her lawyer told her that they showed that she and [Mr B] were married but she is not married.

34. The tribunal asked if she had a passport at the time. She stated that they went to the passport office with her father and the immigration agent. She signed something and they took her fingerprints. She cannot remember if her father gave any photographs or not. Then she stated that they took her photograph in the passport office. She stated that they just went to that office once.

35. The tribunal asked about her health in Dhaka. She stated that after some days she was admitted back into hospital because she tried two or three times to commit suicide. She did not do anything wrong but she was punished so hard. They tried to kill her and she would not be able to do any work in Bangladesh again. She cannot remember how long or when she went into hospital. They gave her injections of medicine and she had counselling. She cannot remember if she went into hospital before or after she went to the embassies and the passport office.

36. The tribunal noted that her recent statement notes that her tourist visa application contained a passport dated [in] 2009. She stated that she has no idea where that passport came from and she never saw it.

37. The tribunal noted that passports would usually be valid for at least five years, meaning her passport would not have expired until [2014]. It noted that the passport she came to Australia on was issued in [2013] and asked her why she would have gotten a new passport when her old one was still valid. She stated that she does not know anything about it.

38. The tribunal asked her why her dates of birth in the passports were [dates]. She stated that she has no idea about that. She stated that in Australia she has been giving the correct date of birth. The tribunal put to her that it did not understand why her date of birth would need to have been altered in her passports.

39. The tribunal noted that her medical certificate indicated she was in hospital from [December] 2012 to [February] 2013 but that her second passport was issued [in] 2013. It put to her that this meant that she would have had to apply for her passport before she went into hospital which seemed to be a very long processing time. She stated that passports can take that long in Bangladesh; when the lawyer told her about this, she called her auntie and she said that she doesn’t know but passports always take a long time.

40. The tribunal asked if she had contacted her family since in Australia and if anything had happened to them. She stated that [Mr A] and his brothers burnt down their [property]. They were looking for the applicant to pass judgement on her. When they did not find her, [Mr A] and his brothers said that she had gone away with someone. She cannot remember when this happened.

41. [Mr C] was beaten very badly. The day she called he was in hospital and she also heard this from her aunt. She did not ask details about what happened but she was told the villagers beat him. She cannot remember now and did not ask for details why. This was 8-9 months ago.

42. Her auntie told her that they filed a false case against [Mr F]. The applicant told [Mr F] that her protection visa was rejected and that he should go to the police and seek help. He went to an NGO who were helping people.  After that ‘they’ filed a false case against him. The police caught him last Thursday and he is in jail. It is a rape case but it is false.

43. The tribunal asked her to explain why she told her brother to go to the police and an NGO for help. She stated that the person who rejected her application mentioned something about NGOs and police. She did not know about the RRT at the time and people were telling her she had to go back so she told her brother to contact those NGOs.

44. She does not know where her parents are. Her auntie doesn’t know about her parents; she only knows [Mr F] is in jail in Sylhet.

45. The tribunal referred to the applicant’s evidence regarding what has happened to her in Australia and asked when [Mr E] told her he had lodged a protection application. She does not know whether he told her at the hotel or at his house. She initially withdrew the police complaint and then reinstated it. The hearing is next month. She lost the statement she made to the police, but the Red Cross worker is following up the case for her.

46. The tribunal asked her if anything else has happened to her family since she has been in Australia. She stated that she does not know if they were killed or not. Maybe they left the village because of fear.

47. The tribunal asked the applicant what she fears will happen to her if she returns to Bangladesh. She stated that when she arrived here she could not sleep. She is getting afraid; if she goes back again they will kidnap, kill her and rape her again. They have done wrong by her family, her brother is in jail. She does not want to return to Bangladesh. They will throw shoes and stones on her and kill her in the name of Islam. One of the girls who was working with her, there is no trace of her. Another girl who worked had stones thrown at her and she can no longer leave the house. They are among the girls that the applicant helped.

48. The tribunal explained the concept of relocation to her. It asked her whether it was possible for her to live with her auntie in Dhaka. She stated that she came to Australia because her auntie cannot take care of her because she is living in a joint family with her in laws. The applicant is still taking medicine and is scared at night. She will never go back to Bangladesh.

49. She also stated that most young girls are not living alone. She will still have her scarf pulled and bad things said to her. The tribunal put to her that while it sympathised with this, it may not consider such harassment to constitute serious or significant harm.

50. The tribunal asked the applicant about the discrepancy in her written and hearing evidence regarding whether her friend’s cousin worked at the [business] or not. She stated that her friend did not work there; she had a Hindi interpreter to do her statement and has always used Hindi interpreters, which may have been the problem.

1. The tribunal noted that she had earlier stated she was in Dhaka for two to three months in the hearing. She stated that she went to Dhaka twice, because her hospital was in Sylhet. It was a five hour drive from Dhaka. The tribunal asked her why she went all the back to Sylhet to get treatment. It put to her that if she was very unwell, as she claims to be, it would have made more sense for her to be admitted to a hospital in Dhaka. The applicant stated that when she left hospital the first time they told her she had to go back for treatment. The tribunal noted that she did not appear to be claiming she had gone back to hospital to continue treatment she had stopped. She stated that she does not know, maybe the service was better in the Sylhet hospital.

2. The tribunal noted that she indicated in her recent statement that the police are searching for her family and asked why this would be the case. She does not know why but the police are looking for her family.

3. The tribunal put country information to the applicant noting that women constitute 36% of the Bangladeshi labour force, that there are many government and NGO schemes to increase women’s participation and that the government stated that increasing women’s economic opportunities was seen as a ‘stabilising force’ against religious extremism. It put to her that 80% of garment workers were women and that many employment-generating schemes focused on employment traditionally seen as female-specific such as the garment industry and also [other industries]. It put to her that this country information may indicate that working women in Bangladesh were not as uncommon as her evidence appears to suggest. It also put to her that reports indicate that [particular businesses] are a booming industry in Bangladesh with reports of them flourishing in Dhaka. It also noted that an internet search revealed several in Sylhet. The applicant stated that this may be the case but there is no security. She cannot face returning to have her scarf pulled on the bus or ‘eve teasing’. No one can guarantee her safety.

4. The tribunal asked her what she meant by security and whether being harassed on a bus was what she was most concerned about going back. It put to her again that it would regard being harassed on the bus in the manner she described to be harassment as opposed to serious or significant harm but that rape was obviously something different.

5. The tribunal further noted country information before it regarding the high level of document fraud in Bangladesh and that it would have to consider this information when deciding what weight to give to her documents. The applicant stated that the documents she provided are genuine. The tribunal noted that it would consider this but, given the issues raised with her passports, it had to consider whether her other documents are genuine.

6. The tribunal further advised that it had to consider the credibility of her evidence and that it had concerns including regarding her evidence about her passport and dates of birth.

7. The applicant stated that she had provided a birth certificate which is true. The tribunal noted this but also stated that on her evidence it appeared a false passport had been obtained for her and her dates of birth were inaccurate on her passports and had to consider these issues. 

8. The representative noted that the applicant’s evidence regarding women working in Bangladesh was in relation to her village and from her evidence, women don’t work there. Significantly, it would be very difficult for the applicant to relocate given that she has no family support that she knows of. While women in large cities can work, the applicant cannot do so. The applicant stated that she has been sick for a long time; she has had to take medicine every day. She tried her best to give evidence today.   

   Post hearing

9. Following the hearing, the tribunal received further submissions with instructions that the applicant’s aunt and brother advised that she had previously been issued a passport in 2009 in anticipation of possibly traveling to India which was later lost and that her date of birth on the passports is an error. Copies of the applicant’s drivers’ licence as evidence of her correct date of birth, English translations and copies of documents relating to her [brother]’s arrest were provided. A further submission with a link to a birth registration verification service was also received.

10. Following this, the tribunal requested original copies of the applicant’s identity and other documents, which were submitted for analysis to the department’s document examination unit.

    Second hearing of 30 July 2015  

11. The applicant appeared before the Tribunal on 30 July 2015 to discuss issues arising following the last hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the (Sylheti) Bengali and English languages. The applicant was represented in relation to the review by her registered migration agent.

12. The tribunal raised the issue of credibility and referred to the vague and implausible nature of some of the applicant’s claims. It questioned the applicant about her passport and put to her that it may find it difficult to accept that the date of birth in her passports is simply the result of a mistake. The applicant advised that she did not know the full story but was told by her relatives that it was the wrong date of birth. She got her second passport by showing them a copy of the first passport. The tribunal discussed the recent DFAT Bangladesh country report which referred to the system of obtaining a passport including undergoing biometric testing and verification of identity by local police before application. The tribunal noted that while document fraud was highly prevalent in Bangladesh, the above process may lead it to question how such a wrong date of birth could be recorded on her passports. The tribunal explained that this may mean there was an eight year gap in her life which she has not disclosed, which was a significant credibility issue. The applicant confirmed that her real date of birth in [year].

13. The applicant gave evidence that she obtained the identity documents she provided since arriving in Australia through her aunt in Dhaka after the departmental interview. Her aunt went to the Union Office where the chairman gives nationality and birth certificates. She confirmed that all the documents were issued by same office. She then clarified that she got the documents before her interview in November 2013, because she knew the date of birth on her passport was wrong.

14. When asked about how she obtained her drivers licence, the applicant explained that she has had it with her the whole time. She showed her representative but it was not provided earlier. She got the licence with her aunt in Dhaka and was practicing driving with her. She confirmed that this is what a normal Bangladeshi licence looks like and that she was interviewed in Sylhet for it.

15. The tribunal noted that the licence did not look genuine and referred to the English version of her nationality certificate having spelling errors. It put to the applicant that it may find it difficult to accept that an official document would misspell the word ‘Bangladesh’. The applicant advised that people in her village don’t know English well.

16. The tribunal explained the new s 91WA of the Act, which had come into effect after the last hearing, the definition of bogus documents and its implications for her protection visa application. The applicant advised that she was telling the truth.

17. The tribunal advised that it had sent her six original documents off for analysis and put the findings of that report to her under s 424AA, which were that the document examiner was unable to provide a conclusive opinion on five of your documents, largely due to the lack of reference or sample material and that the document examiner was of the opinion that her drivers licence was counterfeit. The tribunal explained the relevance of this information was that it may conclude her identity documents are not genuine, her claims are not credible and that she is not owed protection obligations by Australia. It further advised that the information may lead it to find that the applicant has provided bogus documents in relation to her identity and that, subject to a reasonable explanation, the grant of her protection visa was prevented by s 91WA. The tribunal advised that these would be the reasons or part of the reasons for affirming the decision under review.  

18. After a brief adjournment the applicant advised that she went to an agent to get her licence, took a test and paid fees. It was not a government agent. She thought her licence was real but she just came to know that it is fake. She asked for time to provide a further response in writing. 

    Section 424AA response

19. On 14 August 2015 the tribunal received has considered submissions in relation to issues raised about the last hearing including s 91WA and providing further country information.   

    Findings and reasoning

20. The issues in this case are whether the applicant is owed protection obligations and whether s 91WA of the Act prevents her from being granted a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

21. The tribunal accepts on the basis of evidence before it including the applicant’s passports, that she is a national of Bangladesh and has assessed her claims against that country.

    The applicant’s identity

22. The tribunal has had several concerns in relation to aspects of the applicant’s claims. A central one of these has been the question of the applicant’s date of birth which has been listed as [date] in two Bangladeshi passports provided to the department, her visitor visa application and her protection visa application and initial statement. Other documents provided by the applicant, including Bangladeshi birth and nationality certificates, online birth registration and her driver licence list her date of birth as [date]. The applicant has consistently claimed to be born in [year] since her departmental interview. This issue has been of concern to the tribunal given that if the applicant’s birth year is indeed [year] as listed on her passports, it would indicate that there is an eight year gap in her history that she has not divulged. Doubts about other aspects of the applicant’s claims have added to the tribunal’s concerns regarding the applicant’s true age.

23. The tribunal has carefully considered the evidence before it in relation to the applicant’s date of birth including the above documents, submissions from the applicant’s representatives and the findings of the document examination report put to the applicant at her last hearing. The tribunal finds on the evidence before it that the applicant’s driver licence is not genuine and therefore gives it little weight. As discussed with the applicant, the tribunal has some concerns regarding the birth and nationality certificates provided by the applicant in light of country information regarding the high prevalence of document fraud in Bangladesh[1] and irregularities noted in the English version of her nationality certificate. Recent submissions instruct that the applicant’s birth and nationality certificates were issued by the same village Chairman, as described by the applicant at hearing, that the English version of the nationality certificate was produced upon request and that these are not issued as a matter of course. A certified English translation of the Bengali-language nationality certificate was also provided. While the tribunal is willing to give the applicant the benefit of the doubt on this matter, due to its findings below, the applicant’s claim that the English nationality certificate was issued upon request gives rise to concerns about the reliability of this document and the tribunal is inclined to give it little weight in the consideration of the applicant’s claims.

    [1] DFAT Country Report: Bangladesh (20 October 2014).

100.   The tribunal has also been provided with a link to an online verification of the applicant’s birth registration and a copy of that online record listing the applicant’s birth registration number and date of birth as [date] (folio 130). The tribunal was previously able to view this online and, although that site does not currently appear to be operational, the website appears to be an official Bangladeshi government site.[2]

[2]  Having considered the evidence before it including information provided in her representative’s submissions regarding potential irregularities in the passport application process, evidence that the applicant’s first passport was handwritten and the online birth registration verification which the tribunal has given weight to, it accepts that the applicant’s date of birth is indeed [date]. While the tribunal continues to hold reservations regarding the applicant’s evidence about how she obtained her passports, it is willing to give her the benefit of the doubt and accept that the two Bangladeshi passports that she has held contain the wrong date of birth due to human error.    

102.   As discussed with the applicant, concerns about the genuineness of her identity documents has necessarily given rise to the consideration of s 91WA of the Act, which came into force on 18 April 2015 and which states that the tribunal must refuse to grant a protection visa to an applicant if the applicant provides a bogus document as evidence of their identity, nationality or citizenship. Section 91WA does not apply if the tribunal is satisfied that the applicant has a reasonable explanation for providing the bogus document and either provides documentary evidence of their identity, nationality or citizenship or has taken reasonable steps to provide such evidence.

103.   ‘Bogus document’ is defined, amongst other things, as a document that is is counterfeit or has been altered by a person who does not have authority to do so (s 5(b) of the Act). Given the tribunal has found that the applicant’s driver licence is counterfeit, it finds that she has provided a bogus document. While it has been submitted that the drivers licence was not provided as evidence of an ‘alternate identity’, the tribunal is of the view that a person’s date of birth/age is an inherent part of their identity. Accordingly, the tribunal finds that the applicant has provided a bogus document as evidence of her identity and, subject to providing a reasonable explanation for providing the bogus document and at least taking reasonable steps to provide evidence of her actual identity, the applicant is prevented from being granted protection under s 91WA.

104.   The tribunal is satisfied that the applicant has provided documentary evidence of her actual identity in the form of her online birth registration verification. The tribunal has considered the applicant’s claims as to why she provided a bogus document as well as submissions received from her representative that refer to claims at up to 80% of Bangladeshi driver licences being ‘illegal’. Those submissions refer to ‘brokers’ issuing fake licences in and around the Bangladesh Road Transport Authority (BRTA) premises and that many BRTA employee are reportedly involved in such schemes. In light of these reports and the applicant’s evidence on how she obtained her driver licence, the tribunal is willing to accept that the applicant may not have been aware that her licence was counterfeit. In light of its findings regarding the applicant’s date of birth, the tribunal accepts that this is a reasonable explanation for having provided a bogus document. The tribunal therefore finds that s 91WA does not apply to the applicant and therefore the grant of the visa is not prevented by s 91WA.

The credibility of the applicant’s substantive claims 

105.   The tribunal has carefully considered the credibility of the applicant’s evidence in light of her claims regarding the preparation of her application, procedural issues at her departmental interview as well as reports regarding the applicant’s psychological health and symptoms.

106.   The tribunal notes that the applicant’s initial statement did not specifically refer to having been raped and that this was not disclosed until her departmental interview. It is evident from listening to the interview recording that the applicant did not feel comfortable discussing this claim with the male interpreter that had been arranged and that her claims had to be interpreted with the assistance of her friend who was not a professional interpreter and who did not speak the applicant’s first language. It is also evident from the recording that the applicant was advised by the delegate that a further interview would be scheduled with an appropriate female interpreter. Unfortunately, it appears that the delegate no longer considered a further interview necessary upon receiving the applicant’s second statement which did specifically refer to the rape.

107.   Given the issues that arose during the applicant’s interview and the failure to provide her with a second interview with an appropriate interpreter, the tribunal has given little weight to any discrepancies in the applicant’s evidence to the department. It is further willing to accept that the applicant’s original statement was prepared with the assistance of a male friend to whom she may have been uncomfortable disclosing her rape.

108.   The applicant was able to provide a fairly detailed account of her life in her village, how she obtained work at a [certain business] in Sylhet, details of that [business] and of her work. She has also provided a relatively consistent and detailed account of the harassment she received and her rape by [Mr A], who she claims is the brother of the village imam. The tribunal has some concerns about certain aspects of the applicant’s claims, such as why her family would allow her to travel to Sylhet to work in a [certain business] given the conservative nature of her village, but is willing to give her the benefit of the doubt on these matters in light of the relatively consistent nature of her other evidence.

109.   Accordingly the tribunal accepts that the applicant began working in a [certain business] in Sylhet in 2011 in order to provide further income from the family. The tribunal accepts that this required the applicant to travel to/from her village by bus including at night. The tribunal is willing to accept that the applicant may have assisted a handful other girls in her village [to obtain certain] work. The tribunal further accepts that the applicant faced harassment and threats to stop working from men in her village led by [Mr A]. It accepts that the motivation for these may have been because her work in a [certain profession] was seen as ‘immoral’. While a number of reports refer to the number of women working in Bangladesh (making up 36% of the formal labour force[3] and 80% of garment industry workers[4]) and popularity of the [industry] in Bangladesh, [5]  other sources refer to difficulties of women engaging in work in rural areas due to the conservative culture in village areas.[6]

[3] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, p.12 < US DOS Country Human Rights Reports: Bangladesh

[5] Ara, S 2014, ‘Refuge of Relaxation’, The Daily Star, 17 June < ‘Beauty parlours witness huge rush’ 2013, BD Today, 8 August, source: New Age < ‘Training can help women entrepreneurs widen products’ 2014, The Financial Express, 27 August < Accessed 11 November 2014

110.   The tribunal accepts on the evidence before it that the applicant reported these threats to the police who took no action and told her to stop working. It accepts that one evening after returning to her village from work, the applicant was chased by several men and raped by [Mr A] in the circumstances that she has described. It accepts that she managed to run to her aunt’s place, that after the incident her parents took her to the police who again did not take any action. This appears consistent with country information regarding police inaction towards rape victims set out below.  The tribunal accepts that she was eventually taken to hospital in Sylhet.  It is willing to accept that the applicant was taken by her parents to an aunt’s in Dhaka. It is willing to accept as plausible that the applicant’s family’s cattle shed was burnt after the applicant left Bangladesh and that one of her siblings was beaten up.

111.   The tribunal holds greater concerns regarding the applicant’s evidence of what transpired after her rape. It found the applicant’s evidence regarding her circumstances during the time she claims her father was applying for her second passport and visitor visa to Australia extremely vague. It is not convinced that the applicant knows nothing about the way her visitor visa application was arranged as she has claimed. Furthermore, the tribunal does not accept that the applicant’s family would take her to a hospital in Sylhet, five hours away from where she was staying in Dhaka, for mental health treatment.

112.   The tribunal has some concerns about the credibility of the applicant’s claim that her brother was charged with a false rape case after going to ‘organisations’ to seek help. Nevertheless, it has been able to locate at least one report where a similar situation occurred in Bangladesh.[7] Accordingly, it is willing to give the applicant the benefit of the doubt and accept that this has occurred. The tribunal does not accept, however, the applicant’s vague evidence that the police are searching for her family.

[7]  The tribunal accepts on the evidence before it that the applicant is not married to the man it was claimed in her visitor visa application she was married to. Information before the tribunal regarding that individual’s immigration matters indicate that he has also denied being married to the applicant. 

114.   While the tribunal holds some concerns regarding her evidence about an attempted sexual assault by a man named ‘[Mr E]’ in Australia and subsequent police complaint, it is willing to give her the benefit of the doubt and accept that she may have been the victim of a sexual assault in Australia which she reported to the police.

Future risk of harm

115.   The tribunal has considered whether the applicant would face a future risk of further harm if she returns to Bangladesh in light of its findings that she has been raped by men in her village in the past.

116.   The tribunal has found that the applicant has already gone to the police on two occasions to seek assistance in relation to her attackers, to no avail. It accepts her family have attempted to seek some redress on her behalf. It further accepts that she has been willing to report an attempted sexual assault in Australia to the police. The tribunal therefore finds that, upon her return to Bangladesh, there is a real chance that the applicant will seek to bring her rapists to justice. Given these individuals’ willingness to use violence and other methods in the past including against her, her family members and their property, the tribunal finds that there is a real chance that her attackers may seek to cause her serious harm in the form of physical assault or even death in order to punish or prevent her from seeking justice in relation to her assault.

117.   The tribunal finds that the motivation for the future harm would be personal, in that it would be directed against the applicant in order to punish her for seeking justice against them, rather than for any of the Convention grounds.

118.   However, the High Court in MIMA v Khawar (2002) 210 CLR 1 confirmed that the Convention test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related (as per Gleeson CJ at [30]-[31]):

Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm.  As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation . . .

119.   Where persecution consists of two elements, being the criminal conduct of private citizens and the toleration or condoning of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

120.   In relation to the situation of women in Bangladesh, Freedom House, in its Freedom in the World 2014 – Bangladesh report, released in September 2014, indicates that women are one of the groups in Bangladesh that ‘face some discrimination under law, as well as harassment and violations of their rights in practice’. The report further notes that

Under the personal status laws affecting all religious communities, women have fewer marriage, divorce, and inheritance rights than men, which increases their socioeconomic insecurity, according to a September 2012 Human Rights Watch report. However, Parliament that month passed the Hindu Marriage Bill, which aims to grant legal and social protection to members of the Hindu community, particularly women. In rural areas, religious leaders sometimes impose flogging and other extrajudicial punishments on women accused of violating strict moral codes, despite Supreme Court orders calling on the government to stop such practices. Women also face discrimination in health care, education, and employment. In 2013, Islamic clergy and women's groups remained at loggerheads over implementation of the National Women Development Policy, which holds that women and men should have equal political, social, and economic rights.

Rape, dowry-related assaults, acid throwing, and other forms of violence against women occur regularly. A law requiring rape victims to file police reports and obtain medical certificates within 24 hours of the crime in order to press charges prevents most cases from reaching the courts. Police also accept bribes to quash rape cases and rarely enforce existing laws protecting women. The Acid Survivors Foundation (ASF), a local NGO, recorded 69 acid attacks during 2013; they affected 85 victims, most of them women. While attacks have declined since the passage of the Acid Crime Prevention Act in 2002, investigations remain inadequate. A 2010 law offers greater protection to women and children from domestic violence, including both physical and mental abuse. Giving or receiving dowry is a criminal offense, but coercive requests remain a problem, as does the country’s high rate of early marriage. Odhikar noted a decrease in dowry-related violence against women in 2013, with around 150 murders recorded during the year.[8]

[8] Freedom House 2014, Freedom in the World 2014 – Bangladesh, 8 September, UNHCR Refworld < <CX1B9ECAB5596>

121.   The April 2014 report of the UN Special Rapporteur on violence against women, its causes and consequences also indicates that:

The Government has undertaken a number of legal and institutional initiatives to meet its human rights obligations and address the situation of women and girls in the country. However, these have not been translated into concrete improvements in the lives of the majority of women who remain marginalized, discriminated against and at a high risk of being subjected to violence.[9]

[9] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, p.20 < Accessed 12 June 2014 <CIS28581>

122.   The Special Rapporteur’s report further noted that in rural areas, ‘some parents feel compelled to marry off their girl children as a “protective measure” against rape’ and that rape was ‘the second most commonly acknowledged form of violence against women and girls in Bangladesh, yet victims seldom seek legal redress’.[10]

[10] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, pp.4-6 < Accessed 12 June 2014 <CIS28581>

123.   Having regard to the country information before it, the tribunal is of the view that the persecution in this situation lies in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. The Full Court of the Federal Court recently made the following observations on this issue in Minister for Immigration and Citizenship v SNONJ [2011] FCAFC 85:

By itself, within the framework of the Convention, domestic violence does not provide a basis for a refugee claim.  Necessarily, therefore, the correct inquiry was not into the adequacy or otherwise of the protection afforded to women who were victims of domestic violence in Fiji but, in contradistinction, into the motives of the state and whether the failure by Fiji to protect such victims was itself a manifestation of a persecutory policy directed towards them [at 25].

124.   In relation to state protection, the government ‘has committed to protecting and promoting the rights of women through its ratification of numerous international human rights instruments’, and during the past 20 years, ‘numerous laws, policies and programmes have been put in place to address the needs of women generally, and violence against women specifically’. The National Human Rights Commission, which was established in 2008, ‘has launched campaigns to raise awareness on the issue of violence against women’.[11]  The government ‘co-sponsors two large-scale programmes to address violence against women: a Multi-Sectoral Programme on Violence against Women under the Ministry of Women and Children’s Affairs and a Joint United Nations Programme to Address Violence against Women’.

[11] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, pp.13-14 < Accessed 12 June 2014 <CIS28581>

125.   There have also been active steps taken ‘to redefine the police force as a service. Gender guidelines have been drafted for model police stations through the police reform programme. The Special Rapporteur was informed that the police apply a “zero tolerance” policy when dealing with cases of violence against women. The Government has also taken measures to promote gender-sensitive policing and improve victim support services through its Police Reform Programme’.[12]

[12] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, p.16 < Accessed 12 June 2014 <CIS28581>

126.   Nevertheless, despite these attempts at reform, victims of violence are reluctant to seek justice or support due to various factors including ‘community pressure and stigma, the lack of responsiveness by the justice system, pressure to withdraw complaints by local police and also the length of proceedings’. Also, ‘Despite the adoption of relevant legislation, there is a general lack of awareness of such laws, poor implementation by state agents and a reluctance of women to use the justice system as a means to seek redress’. [13]

[13] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, pp.14 & 16 < Accessed 12 June 2014 <CIS28581>

127.   The Special Rapporteur’s report further states that

In Bangladesh, the main challenges relating to the investigation, prosecution and punishment of perpetrators for acts of violence against women are due to the lack of: coordinated criminal justice response; expertise and adequate mechanisms to conduct credible investigations; comprehensive redress mechanisms; and understanding of the root causes and consequences of violence against women.[14]

[14] UN Human Rights Council 2014, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to Bangladesh (20-29 May 2013), 1 April, A/HRC/26/38/Add.2, UNHCR Refworld, p.17 < Accessed 12 June 2014 <CIS28581>

128.   The above information appears consistent with DFAT’s assessment of the situation for women in Bangladesh, which indicates that despite efforts by the Bangladesh government, ‘women continue to face widespread societal prejudice, with the degree of economic disadvantage is directly linked to a woman’s level of vulnerability. For example, anecdotal evidence suggests that, where women had their own income, the levels of harassment they experienced were significantly reduced’.[15] The report also indicates that:

[15] Department of Foreign Affairs and Trade 2014, DFAT Country Report – Bangladesh, 20 October, s.3.68 <CIS2F827D91369>

3.69 Domestic violence against women is prevalent in both urban and rural areas. Depending on socio-economic and religious factors, it can be difficult for a woman to leave an abusive marriage. In rural and conservative areas, attempts to do so often result in communal and familial disputes and ostracism. The Ministry of Women and Children Affairs has committed to increasing the number of women’s shelters but numbers remain low.

3.70 General violence against women occurs throughout Bangladesh. Local NGOs reported 31 acid attacks against women in 2013, often related to a refusal to accept a marriage proposal. Honour killings relate to both men and women. Women have been killed by family members for falling pregnant out of wedlock. Men have been killed, by either their own family or the woman’s family, for allegedly causing a pregnancy out of wedlock. The majority of cases have been reported in Bangladeshi Diaspora communities, predominantly in the UK. Honour killings are not widely reported and credible local sources say they occur infrequently but suggest the incidence is greater in Muslim families in rural or remote areas.[16]

[16] Department of Foreign Affairs and Trade 2014, DFAT Country Report – Bangladesh, 20 October, s.3.69-3.70 <CIS2F827D91369>

129.   The USDOS report on human rights practices in Bangladesh for 2013 also refers to the weak enforcement of laws relating to crimes against women. It further stated that according to human rights monitors, ‘many rape victims did not report the incidents due to social stigma or fear of further harassment. Prosecution of rapists was weak and inconsistent’. [17]

[17] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Bangladesh, 27 February, Section 6 < Accessed 11 March 2014 <CIS27404>

130.   News articles also refer to police inaction against sexual violence. One report referred to protests over police inaction following the gang rape of a woman on a bus in Dhaka. Reports indicate that the victim had to attend three different police stations before one heard her case.[18]  Another report refers to the mother of a rape victim suing the police after they allegedly tore up the complaint against her alleged attacker and filed a false rape charge against the victim’s brother.[19]

[18]  The tribunal has considered whether state protection would be withheld from the applicant for any Convention reason. In the present case, the tribunal considers that ‘female victims of rape’ are identifiable by shared common characteristics of their gender and past experience of having been the victim of rape, in light of the social stigma surrounding that act in Bangladeshi society. Their shared common characteristics are not the shared fear of future persecution. The tribunal finds that the applicant is a member of this particular social group. 

132.   While the tribunal acknowledges that the Bangladeshi government has introduced various laws and policies to better address with violence against women including rape, it is satisfied on the evidence before it that the Bangladeshi authorities, namely the police, selectively and discriminatorily withhold state protection to female victims of rape. The tribunal finds that the selective and discriminatory denial of state protection by the authorities to the applicant for reasons of her membership of the particular social group described above would constitute systematic and discriminatory conduct for the purposes of section 91R(1)(c) and that the applicant’s membership of that group would be the essential and significant reason for the denial of state protection.

133.   Applying the High Court’s analysis in Khawar, the tribunal is satisfied that the applicant has a well-founded fear of persecution if she returns to her home village.

134.   The tribunal has further considered whether the applicant can safely and reasonably relocate. DFAT notes that there are no legal impediments to internal relocation. However, it notes that internal relocation for women remains difficult and that women are unlikely to receive communal or family support.[20] It further notes that the applicant has provided numerous medical reports indicating that she is suffering from symptoms of depression and PTSD. The more detailed of those reports indicates that the applicant has suffered depression for several years. It is unclear whether this includes before she was raped. While the applicant claims to have an aunt in Dhaka whom she has previously stayed with and may be able to rely upon for support, the tribunal is not satisfied that it would be reasonable for the applicant to relocate given her psychological vulnerability, young age, lack of education or significant work experience.

[20] DFAT Country Report: Bangladesh (20 October 2014).

135. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

136.   The Tribunal remits the matter for reconsideration with the directions that:

·the applicant satisfies s.36(2)(a) of the Migration Act; and

·the grant of the visa is not prevented by s.91WA.

Magda Wysocka
Member