1412132 (Refugee)

[2015] AATA 3333

1412132 (Refugee) [2015] AATA 3333 (26 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412132

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:26 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 26 August 2015 at 10:25am

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] December 2012 and the delegate refused to grant the visa [in] June 2014.

3. [In] July 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also taken into consideration the delegate’s decision record provided to the Tribunal by the applicant.

5. According to the delegate’s decision record the applicant first arrived in Australia [in] February 1998 on a TR 676 Tourist visa which ceased [in] February 1998. The applicant departed Australia [in] March 1998 and re-entered Australia [in] April 1998, and lodged his first protection visa application [in] May 1998. That application was refused [in] August 1998 and that decision was affirmed by the Refugee Review Tribunal on 21 August 2000. The applicant lodged two requests for Ministerial Intervention which were finalised as Not Considered. The applicant lodged his second protection visa application [in] December 2012.

6. The applicant’s written claims in his protection visa application form state:

   I am a Buddhist and belong to a minority ethnic group in Bangladesh. Bangladesh is an Islamic state where minority communities face discrimination and persecution. Recent reports indicate that Islamic fundamentalism is growing in Bangladesh and minorities, particularly the Buddhist face harm at the hands of the Sunni Islamic fundamentalist. I fear I will be targeted and face real risk of harm due to my minority religious back ground in Bangladesh. In addition I fear because I stayed in Australia for a considerable period of time I will be perceived as a wealthy person. Recent country information indicates that extortion and human rights abuses targeting wealthy people have significantly increased in Bangladesh with the active and passive support of the present government. I fear I will face significant harm including torture, inhuman, degrading and cruel treatment in Bangladesh. I fear even I move to other parts of Bangladesh, I will continue to face harm. I fear I cannot get adequate protection in Bangladesh because the police and judiciary in Bangladesh are ineffective and corrupt.  See my detailed statement to follow.

7. The applicant later provided to the Department a hand written statement and an unsigned undated typed statutory declaration which summarises the hand written statement. In summary the documents claim the applicant’s real date of birth is [a certain date], and that the date of birth on his passport [is] false. The applicant states both his passports are false, the photos in both have been changed. One is in the name of [Mr A], the other is in [his real name]. The applicant claims his other name is [another name], which is the name he has used in the Chittagong Hill Tracts, his mother’s land. The applicant states he has already stated this before and provided a lot of documents to the Department in support of this. The applicant states he has been living away from his family for more than 25 years. He left his home when he was young. He wanted to stay with his family but he couldn’t. He loves his mother and she loves him, but she said to him “Never come home”. The applicant states he studied [to a certain level] and a couple of years later he completed his SSC in private. The HSC certificate which he submitted is a false certificate. The applicant states this would explain why he was away from school for a few years and why he sat the SSC exam in private. He has already provided a lot of documents in support of his application and from these documents the department can determine whether he is telling the truth and needs protection or not.

8. The applicant’s then representative provided two written submissions to the Department; one dated [in] December 2012 in the form of a covering letter lodged with the visa application forms submitting the current application is expressly made in reliance on s.36(2)(aa), and addressing the operation of s.48A of the Act; the second dated [in] May 2014 submitting the applicant has a well-founded fear of suffering persecution for convention reasons if he returned to Bangladesh for reasons of his religion: Buddhist; and his Political Opinion: (Imputed) holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh including the Bangladesh Nationalist Party and Jamaat-e-Islami. The then representative also submitted that given the current ongoing human rights problems and political and religious instability and the underlying systemic religious and social hostility towards Buddhists, there is no meaningful option for the applicant relocating or obtaining effective protection from the Bangladesh authorities. The submission refers to a number of country reports and articles in relation to: persecution of religious minorities; Islamic fundamentalism in Bangladesh; the Human Rights situation in Bangladesh; an Refugee Review Tribunal (RRT) decision on persecution against non-Muslims; rising Islamic fundamentalism in Bangladesh; persecution of religious minorities including Buddhists; Christian persecution in Bangladesh; and general submissions in relation to persecution on the basis of religion and protection under complementary protection.

9. The applicant provided 371 pages of internet news articles, articles and press releases in relation to violence against religious minorities in Bangladesh. The applicant also provided a copy and its English translation of a Nationality Certificate from the Office of [a certain Council in] October 1992.

10. The applicant appeared before the Tribunal on 15 July 2015 (the first hearing) to give evidence and present arguments. The Tribunal also received oral evidence from [Ms B and Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, although the applicant preferred to communicate in English throughout most of the hearing.

11. At the hearing the applicant submitted a Summary of Assessment and Treatment Report prepared by [Mr D, a counsellor at Agency 1], as well as a number of recent internet news articles and reports on the situation of religious minorities, land disputes in the Chittagong Hill Tracts, and human rights issues, in Bangladesh.

12. [Ms B and Ms C] told the Tribunal they had visited Bangladesh a number of times and could tell the Tribunal about their personal knowledge of Bangladesh. [Ms B] submitted a written statement in lieu of her further oral evidence. The statement refers to a number of articles published on the internet reporting on attacks on Buddhists since the Peace Accord in 1997, and violence in the Chittagong Hill Tracts, and her personal observations of the applicant’s mental health and her concerns about him being returned to Bangladesh. The statement indicates the applicant lives at [Ms B]’s daughter’s ([Ms C]) home [and] she sees him several times a week. The statement refers to the [Agency 1] report and confirms [Ms B] observes the symptoms mentioned in the report when she spends time with the applicant. The statement indicates [Ms B] has been to Bangladesh several times and has seen what happens to people who are mentally unwell and expresses concern about the quality of treatment they receive. The statement refers to the applicant’s traumatised background and some of his current symptoms and the effect his time spent in [Australian detention] had on him, as well as the time he has spent in Australia, and notes the applicant currently has no permission to work and was dependant on friends for food and shelter and is unable to afford a lawyer to represent him. The statement claims if given a visa the applicant’s health would improve and he would be able to plan a future for himself. It states the applicant has settled well into the community, that he has work skills with which he could find a job, and [Ms B] is sure the applicant would make a good contribution to society if given the opportunity to do so. [Ms B] also submitted a number of internet articles on Buddhism in Bangladesh and the Chittagong Hill Tracts.

13. [Ms C] told the Tribunal she has known the applicant for nearly two years and that he is a friend of her husband’s and lives in her home. [Ms C] told the Tribunal she had visited Bangladesh approximately eight times over the last 12 years, spending about one month in Bangladesh on each visit. She told the Tribunal she has become aware how rudely the indigenous minority people of the Chittagong Hill Tracts are treated by the majority Muslim population. She also told the Tribunal she had read news articles that suggested corruption undermined the health system in Bangladesh and that she had visited a mental health facility in Bangladesh and found the conditions horrible. She had seen a man singing with a Canadian accent in a locked ward and concluded he had been deported after spending a long time in Canada and had ended up in that ward.  [Ms C] stated the applicant is a Hill Tract person, a Barua, a Buddhist, and has mental health issues, and expressed her concern for the applicant if he was returned to Bangladesh.

14. During the first hearing the applicant told the Tribunal he can speak, read and write Bangla and English. He initially told the Tribunal he had completed the visa application forms himself. He then told the Tribunal his lawyer at the time had drafted his visa application forms and his typed written claims. On questioning the applicant told the Tribunal he was not sure of the content and was not sure he had read the forms before he signed them. The Tribunal found the applicant’s oral evidence quite vague and evasive in relation to his knowledge of the visa application forms and his written claims provided to the Department. On further questioning the applicant conceded his lawyer at the time got the information for the forms from the applicant. The applicant also conceded there was no reason to believe the forms were incorrect. The applicant confirmed the hand written document attached to the unsigned statutory declaration was his hand writing and that the unsigned statutory declaration was a summary of his hand written document, and he believes the contents are true. The Tribunal is satisfied the information and claims made in the visa application forms and the unsigned undated typed statutory declaration were drafted by the applicant’s then lawyer from information provided by the applicant.

15. During the first hearing the applicant told the Tribunal he feared returning to Bangladesh because he is not sure whether there is (still) a case against him for setting a fire which damaged a runway and aircraft in Bangladesh. He told the Tribunal he had lit a fire which got out of control and burned along a runway and damaged some aircraft. He told the Tribunal he left Dhaka because of this and went and lived in the Chittagong Hill Tracts for around four years, after which he left Bangladesh and travelled to [Country 2] in early 1994. The applicant told the Tribunal he and his father had had some problems with a security guard at the airport and the applicant believes the guard may have thought the applicant set the fire. The applicant told the Tribunal a friend of the family who was in the air force telephoned the family and told him to leave. The applicant told the Tribunal his mother told him that a Provost visited his family home in Dhaka soon after the fire, looking for him and asking for photographs of him. He had left the family home by this time. The applicant told the Tribunal his mother also told him another incident had happened at the runaway in 2006, where some tires were damaged, and she believes her house (the family home) was being watched by the authorities or intelligence branch after that incident.

16. The applicant also told the Tribunal the army had occupied his land and allowed settlers to occupy his land in the Chittagong Hill Tracts and that the minorities of that area are still being tortured and treated in an inhumane way by the army and settlers.

17. The applicant told the Tribunal he feared being arrested and tortured because of the case relating to the fire if he returned to Bangladesh. The applicant told the Tribunal such crimes are never erased.

18. [In] July 2015 the Tribunal received a post hearing written statement from the applicant. In summary the applicant requests the Tribunal consider his matter under the Refugee’s Convention and complementary protection provisions of the legislation. The applicant also states he is totally opposed to Islamic fundamentalism and has made that known to his community. He states as it is known to his community in Australia it will certainly be known to the Bangladeshi community back in Bangladesh. He also states his mental health issues, and the lack of adequate health care available in Bangladesh, especially mental health care in Bangladesh, amounts to persecution. The applicant states if combined the persecution he will suffer through being a Buddhist together with the lack of medical health care available and his opposition to Muslim fundamentalists makes him a refugee both in terms of the Refugee Convention and complementary protection.

19. On 3 August 2015 the Tribunal invited the applicant to a second hearing, scheduled for 18 August 2015, to discuss the issues raised in his post hearing written statement. The applicant appeared before the Tribunal on 18 August 2015 to give evidence and present arguments. The Tribunal also received further oral evidence and a written statement and country information articles and reports from [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, although the applicant preferred to communicate in English throughout most of the hearing.

20. During the second hearing the Tribunal discussed with the applicant the issues raised in his post hearing written statement. The applicant told the Tribunal [Ms B] had helped him draft the statement and he was aware of the contents. The Tribunal spoke to the applicant about the operation of s.48A in the circumstances of his matter. The Tribunal also spoke to the applicant about his activities in Australia with the Bangladeshi community and the applicant’s thoughts on Islamic fundamentalism as well his current medical conditions and treatment and concerns about the adequacy of health care services, especially mental health services, in Bangladesh. The applicant also told the Tribunal about his brother who committed suicide in 2010 and who had suffered from mental illness. The applicant submitted a number of documents relating to his brother’s illness.

21. The applicant told the Tribunal he does not believe it is safe for him to return to Bangladesh. He told the Tribunal his issues relate to the treatment of minorities from the Hill Tracts and the land grabbing. On questioning the applicant told the Tribunal he considers himself a mix of the minorities from that area, noting the UN had only recognised some of the tribes. He submitted a number of internet news articles and reports on violence against minorities in Bangladesh, as well as against journalists, and on the death of three bloggers. The applicant also told the Tribunal he is concerned the Bangladesh government might think he was a peace fighter and he does not know how the government will look at him given his past.

22. [Ms B] told the Tribunal that she had met the applicant while he was in detention and had remained friends with him ever since. The Tribunal noted [Ms B] was reading from a written statement and asked for a copy which [Ms B] was happy to submit in place of her reading the document. [Ms B] also told the Tribunal she had lots of friends who were from Bangladesh and that she had visited Bangladesh about ten times, over a period of 12 or 13 years, spending approximately three weeks in Bangladesh during each visit. [Ms B] told the Tribunal that in her experience in Bangladesh, Muslims don’t mix with minorities. She told the Tribunal she did not meet a minority Bangladeshi until she met someone in Australia. She told the Tribunal since then she had attended a minority Christian wedding in Bangladesh and had also travelled to the Chittagong Hill Tracts region and witnessed her Muslim Bangladeshi friends being rude to the minority Buddhists, displaying an age old prejudice. [Ms B] told the Tribunal that she had visited Christians in Dhaka who had had their gas pipes cut by non-Christians. She expressed her concern that if the applicant were to return to Bangladesh he would experience this type of discrimination.

23. [Ms B]’s written statement outlines the history of her friendship with the applicant and notes that minorities in Bangladesh comprise about 10% of the population and generally vote for the Awami League and are opposed to the Islamic fundamentalist group Jamaat-e-Islami who overall support the BNP and their student wing Jamaat-Shibir. The document refers to the history of displacement of indigenous groups in Bangladesh and the settlement of landless Bengalis in the Chittagong Hill Tracts area, the Peace Accord of 1997, inter-communal violence and the rise of Islamic extremism and attacks on homes and temples and shops. The document notes that the peace accord has still not been implemented in the area which is still militarised, and refers to a number of country information reports. The document states that [Ms B] has known the applicant since his detention [in Australia] and sees him regularly as he lives at her daughter’s [home. Ms B] states the applicant would find it difficult to live in Bangladesh because of his age, having been out of the country for a long time, and he would not have connections to find a job, noting the unemployment rate in Bangladesh is higher than 30%. She states he would not be able to access medical care as he can here in Australia as he would not be able to afford to do so, and that he has lived in Australia for a long time and is used to the Australian way of life and customs, and if granted permanent residency would easily find a job which would make his health situation much better and he would be able to contribute to society. The document has a number of Internet reports and news articles documenting violence against Buddhists in Bangladesh attached.

    FINDINGS AND REASONS

    Nationality

24. During the first hearing the applicant told the Tribunal he was most probably a citizen of Bangladesh although he has been away from that country for a long time. He told the Tribunal he was born in Bangladesh and grew up in Dhaka. He told the Tribunal he did not have a right to enter and reside in any other country. During the hearing the applicant told the Tribunal he had had two Bangladesh Passports in two different names, the details of which are discussed below. The applicant told the Tribunal he had had one Bangladesh passport in his real name, [which] indicated his date of [birth] although his real date of birth was [a different date]. The Tribunal notes the applicant has consistently identified himself to the Department as a citizen of Bangladesh since his first visa application in 1998. On the evidence before it the Tribunal finds the applicant is a citizen of Bangladesh. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    S.48A

1. During the first and second hearings the Tribunal discussed with the applicant the operation of s.48A in relation to his particular circumstances. The applicant confirmed the information in the decision record, that he first arrived in Australia [in] February 1998 on a Tourist visa and departed [in] March 1998. He re-entered Australia [in] April 1998, and lodged his first protection visa application [in] May 1998. That application was refused [in] August 1998 and that decision was affirmed by the Refugee Review Tribunal on 21 August 2000. The applicant then lodged two requests for Ministerial Intervention which were finalised as Not Considered. The applicant then lodged his second protection visa application [in] December 2012.

2. The Tribunal notes the first submission by the applicant’s then representative confirms his first protection visa application was assessed under the Refugee Convention criteria and that his claims have never been assessed under the complementary protection criteria. The Tribunal has also taken into consideration the applicant’s post hearing submission which requests the Tribunal consider his matter under both the complementary protection criteria and the Refugee Convention.

3. On the evidence before it the Tribunal finds that the applicant’s first protection visa application was refused [in] August 1998 as the applicant did not satisfy the Refugee Convention criteria. That decision was made prior to the commencement of the complementary protection criteria on 24 March 2012.

4. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

5. While the Tribunal has considered the applicant’s post hearing written statement requesting his application be assessed under the complementary protection provisions and the Refugee Convention criterion, applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds it does not have power to consider the Refugee Convention criterion in s.36(2)(a) in this matter, and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

   Credibility

6. During the hearings the Tribunal discussed with the applicant his background, education, religion and family composition in Bangladesh, his residential, employment and travel history, as well as the reasons he left Bangladesh and his fears of returning to Bangladesh. The Tribunal found parts of the applicant’s oral evidence very vague and inconsistent.

7. During the first hearing the applicant told the Tribunal he had not been diagnosed with any medical conditions and that he was not taking any medication. During the second hearing the applicant told the Tribunal he thinks he may be depressed about his situation although he does not see a doctor about this. He told the Tribunal he does attend trauma counselling on a weekly basis with [Mr D], and has done so for the last three or four months. On questioning the applicant told the Tribunal he had not been under any treatment program prior to that, and that he was not taking any medications.

8. The Tribunal has taken into consideration the report from [Mr D, a counsellor at Agency 1], and the observations of [Ms B and Ms C] in relation to the applicant’s metal health. The Tribunal accepts the applicant has reported a range of symptoms associated with posttraumatic stress disorder (PTSD) and anxiety and depression including agitation, low mood, disturbed sleep, poor concentration and memory to [Mr D], and has been seeing [Mr D] for trauma counselling weekly for the past three of four months. The Tribunal accepts the diagnostic measures used by [Mr D] indicates the applicant meets the criteria for PTSD and anxiety and depression. The Tribunal has taken this into account when assessing the applicant’s credibility.

9. Given the above, and the passage of time, the Tribunal does not expect the applicant to be able to recall exact dates or details. Nevertheless the Tribunal does not accept the applicant’s mental health conditions or the passage of time explains the numerous differences between the applicant’s oral evidence and his written claims and the information and claims he has previously provided to the Department and to the Refugee Review Tribunal. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed below.

10. During the first hearing the applicant told the Tribunal he feared returning to Bangladesh because of the case against him relating to the fire at the runway, as well as the problems minorities face in Bangladesh, as well as noting that the army had taken his land in the Chittagong Hill Tracts. The Tribunal noted the applicant’s written claims did not mention any concerns relating to a fire or any land issues. The Tribunal noted the written claims did mention concerns about being perceived as a wealthy person after being in Australia for so long if returned to Bangladesh, which the applicant had not raised in his oral evidence. The Tribunal raised its concerns that the applicant’s oral evidence was different to his written claims.

11. In response the applicant told the Tribunal he had mentioned the fire in all his cases, but in a different way, by saying he lit the fire while playing soccer to find the ball, in an attempt to hide the crime. He told the Tribunal his first statement (in his first protection visa application) was not written by him, it was written by his lawyer and he did not know what they had written. The applicant told the Tribunal he tried to adjust it when he came to the RRT. He told the Tribunal the RRT asked if he had complained about this lawyer, but he did not understand the consequences of it and could not fight against the lawyer so he did not do anything about that. The Tribunal noted the applicant had not mentioned the case in relation to fire in his current visa application written claims. The applicant told the Tribunal that he thought he had already mentioned it before and that it was a matter of fact about how you say it in different ways. 

12. The Tribunal notes the delegate’s decision record, which summarises the applicant’s previous claims, does not record the applicant raising any concerns in any of his previous claims in relation to a fire in Dhaka. The Tribunal does note the RRT decision record dated 21 August 2000, providing reasons for affirming the decision to refuse to grant his first protection visa application, notes the applicant had told that Tribunal his application form and statement (for his first visa application) had been compiled by his advisor and contained information which was not correct. The RRT decision record notes the applicant had told that Tribunal that he was forced to leave Dhaka because he had accidently burned an area of jungle near the airport and that the police were looking for him.

13. The Tribunal accepts the applicant had raised his concerns about the police looking for him in relation to a fire near an airport with the RRT in a hearing in August 2000. While the Tribunal has considered the applicant’s evidence that his previous lawyers wrote his previous statement, the Tribunal is concerned the applicant has provided a number of documents to the Department over a number of years outlining his claims for protection which have omitted or added different claims. The Tribunal also accepts the applicant’s oral evidence that he can read, write and speak English. While the Tribunal accepts the applicant’s previous lawyers or representatives helped draft the documents, the Tribunal does not accept the applicant was unaware of the claims made in the documents provided to the Department in his first or second protection visa application. As noted above, while the Tribunal does not expect the applicant to recall exact dates or details of his claims, the Tribunal does not accept the applicant’s mental health conditions or the passage of time explains the differences between the applicant’s oral evidence and his written claims. The Tribunal considers these differences reflect poorly on the applicant’s credibility and the reliability of his evidence.

14. During the hearing the Tribunal raised its concern that the applicant had failed to mention in his oral evidence a number of claims made in his previous protection visa application, as recorded in the delegate’s decision record, including the claims that:

    ·on two occasions the applicant’s family started a successful business in Dhaka which was destroyed by Muslim business competitors;

    ·that the applicant took part in various social programs in the Chittagong district;

    ·that in 1991 the applicant was threatened by a local Muslim fundamentalist leader;

    ·that in May 1992 he became a member of the Chittagong branch of the Bangladesh Hindu, Buddhist, Christian Unity Council and organised rallies and protests;

    ·that his family went into hiding in 1992-1993 after family members were killed in communal violence;

    ·that after being involved in the Unity Council in 1993-1994, in late 1994 he was threatened by telephone not to act against Muslims and settlers;

    ·that in 1994 some unknown fundamentalist abducted his younger sister and forcibly married her and that when the applicant made a complaint to the police he was detained for two nights and tortured and paid a bribe to be released;

    ·that during the Muslim fundamentalist attacks in December 1994 his younger brother was caught and has not been found;

    ·that in April 1995 he returned to a neighbouring village and was caught by the army and tortured and interrogated for several days where it was alleged the applicant had connections to the Shanti Bahini rebels, and that several days later when the Shanti Bahini rebels attacked the army camp, and when the army moved on, the applicant was left with only three soldiers and escaped while they were drinking;

    ·and that the police were looking for him and issued a search warrant against him in the area, and that he fled to [Country 2] with the help of a broker.

15. In response the applicant told the Tribunal that some of the claims he just wrote that, and that some of them were lies and some are true. He told the Tribunal the claims that are true are that he was tortured by the army, and that he was forced to register with a student group, although he did not undertake any activities with them. He told the Tribunal he was not part of the Peace Committee, but he did try to take some photographs and the army tortured him very badly and broke his camera. He told the Tribunal he did not undertake any other activity because in that situation he couldn’t do much as he was in hiding.

16. The Tribunal finds the applicant has provided untrue and false claims to the Department in the past in support of his application. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

17. During the first hearing the Tribunal raised its concern that, according to the decision record, the applicant told the delegate during his interview [in] June 2014 that he was a peace fighter, and then later in the interview he told the delegate he was not in fact a peace fighter. In response the applicant told the Tribunal that being a peace fighter has nothing to do with his protection claims. He told the Tribunal the JSS and UPDF are fighting each other, and that if he was involved in the JSS or UPDF he will be tortured or killed. On further questioning the applicant told the Tribunal he was involved, he was kidnapped by JSS peace fighters and was tortured, and then he joined them and was involved with them for one and a half or two years. When asked why the applicant had not mentioned this in his initial oral evidence to the Tribunal, the applicant told the Tribunal he was scared because people look at people in a different way when they have been trained by the Shanti Bahini. The applicant could not recall which years he was involved but told the Tribunal after he escaped from the peace fighters he went to his sister’s home and then left for [Country 2].

18. In accordance with s.424AA the Tribunal put to the applicant information from the RRT decision record dated 21 August 2000. The information was that the applicant had provided two Bangladesh passports, one in the name of [Mr A], which indicated the applicant travelled back to Bangladesh in September 1995, and one in [his real name]. The information in the RRT decision record states the passports indicate the applicant returned to Bangladesh in 1995 and obtained a passport in his own name the same year. The RRT decision states the applicant told that Tribunal that the passport in [his real name] was a genuine document and that he was [the applicant] born in [Dhaka], and that he was involved in the Peace Committee (the Shanti Bahini) and had received military training and that he was involved in a number of attacks on police station and army camps and that he was captured by the army in late 1992 and escaped while they were playing cards.

19. The applicant chose to respond immediately and told the Tribunal he was not caught by the army at that time, he had been captured and tortured in the past, but at that time he escaped from the Shanti Bahini in Sept/December 1993, or close to 1994. The applicant told the Tribunal if the government found out it was safe for him to go home, then he would return. He would love to live with his family and has no interest in living in Australia. When asked about the information in relation to the passports, which indicated he travelled back to Bangladesh in 1995, the applicant told the Tribunal he did not return to Bangladesh after he left in 1994.

20. During the second hearing the applicant told the Tribunal he was concerned that the Bangladesh government may view him as a peace fighter, and that he does not know how the government will look at him given his past. On questioning if the applicant has any reason to believe the Bangladesh government thinks he is a peace fighter, the applicant told the Tribunal he did not know.

21. The Tribunal is concerned that the applicant has changed his claim in relation to having been a peace fighter or not, a number of times. The Tribunal is not persuaded this inconsistency occurred because of the applicant’s concern that it had nothing to do with his protection claims or that he was scared people would view him differently. The Tribunal does not accept the applicant’s mental health conditions or the passage of time explains his inconsistent evidence in relation to this claim. The Tribunal considers this inconsistency reflects poorly on the applicant’s credibility and the reliability of his evidence.

22. The Tribunal is also concerned the applicant told the RRT that the passport in [his real name] was a genuine document and that he was [the applicant] born in [Dhaka], yet the applicant’s written statement claims both passports are false, and the applicant also told this Tribunal the passport in [his real name] had had been obtained by his brother in Bangladesh using corrupt means, while the applicant was in [Country 2], and that it contained an incorrect date of birth. The Tribunal also noted the information contained in the RRT decision indicated the applicant returned to Bangladesh in 1995, which could indicate he was not in fear for his safety at that time. In response the applicant told the Tribunal his brother got the passports through contacts, a powerful person in the ministry, who called the immigration department in Bangladesh. The applicant told the Tribunal his brother organised for the immigration department to help the applicant leave Bangladesh and he was provided with the passport in the name of [Mr A] which he used to travel to [Country 2] in 1994. When the applicant later asked his brother for a passport in his own name, his brother got one issued in the applicant’s name and his brother used it to travel to [Country 2] and gave it to the applicant. Then the applicant organised a different passport for his brother to use to return to Bangladesh. The Tribunal raised its concern about the credibility of the claim that the applicant got a passport in a different name in order to leave Bangladesh, yet his brother had a passport issued in the applicant’s own name and travelled out of Bangladesh on that passport. The applicant told the Tribunal his brother took the risk to do that for him.

23. The Tribunal is not persuaded by this explanation about the two passports. The Tribunal finds the applicant has told a previous Tribunal that the passport in [his real name] was genuine and that he was born in [a certain year], and that his written claims state both passports are false, and that his oral evidence during the hearing was that the passport in [his real name] was obtained by his brother in Bangladesh using corrupt means while the applicant was in [Country 2] and that his date of birth was [on a different date]. The Tribunal finds the applicant has provided significantly different information in relation to the genuineness of the passport in [his real name] over a number of years. The Tribunal is not satisfied the applicant has told the truth about the passports discussed above. The Tribunal has concluded the applicant has not told the truth about the passports in order to avoid the conclusion that the applicant returned to Bangladesh in 1995. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

24. During the first hearing the Tribunal raised its concern that the applicant had raised a new claim during the hearing, that the army had occupied his land and allowed settlers to occupy his land in the Chittagong Hill Tracts. The applicant had told the Tribunal that the Bandarban King gave the applicant five or ten acres while he was living in the region, and that the applicant had used the land for farms prior to leaving the country, and that his mother told him in 2012 that the army has occupied the land and taken the trees and allowed settlers to occupy the land. The applicant told the Tribunal he has no documents in relation to the ownership and was unclear why he feared returning to Bangladesh for this reason. In response to the Tribunal’s concerns the applicant told the Tribunal he did not raise this claim in the past as he did not considered it a matter of protection. The Tribunal asked the applicant if he had done anything to recover the land, through court action or any litigation. The applicant told the Tribunal he has not, as the courts would not get involved, and no one can do that, and courts won’t take a case against the government, and the police would not even take reports. While the Tribunal has taken the applicant’s responses into consideration it notes the applicant’s oral evidence that his mother told him about the occupation of the land in 2012, yet the applicant failed to raise this claim until the hearing on 15 July 2015. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

    Are there 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 the applicant will suffer significant harm?

1. As noted above the Tribunal is concerned with the numerous differences between the applicant’s oral evidence and his written claims and the claims he has previously raised in his previous protection visa application. The Tribunal is also concerned the applicant has provided untrue and false claims to the Department in the past, has not told the truth in relation to the passports he has held, has changed his evidence in relation to being a peace fighter a number of times, and has made a new claim during the hearing. For the reasons given above the Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the truth in relation to critical aspect of his claims.

2. The Tribunal accepts the applicant has remained consistent with some of his background information and the Tribunal accepts the applicant’s oral evidence that he grew up in Dhaka and that he and his family are Buddhists and members of a minority ethnic group, and that his mother and [siblings] and their families continue to live in the family house in Dhaka where the applicant grew up. The Tribunal is also prepared to accept the applicant left Dhaka due to some incident which may have involved a fire and that he spent time in the Chittagong Hill Tracts and may have initially left Bangladesh using a false passport.

3. During the first hearing the applicant told the Tribunal that his mother told him a Provost visited his family home once, soon after the fire, looking for him, and that she suspected the house was being watched after an incident on the runway in 2006. The Tribunal would expect the applicant’s family to have been approached more than once if the applicant was of any ongoing adverse interest in relation to a fire that damaged a runaway and aircraft.

4. The Tribunal finds, based on the information about the two passports, that the applicant returned to Bangladesh from [Country 2] in 1995 and obtained a passport in his own name the same year. Given this, the Tribunal does not accept the authorities or Army or Navy or the intelligence forces or networks in Bangladesh had any ongoing adverse interest in the applicant at that time.

5. The Tribunal does not accept that the applicant was the subject of an ongoing investigation or charges in relation to any fire in the late 1980s or early 1990s or of any interest to anyone after the incident on the runway in 2006.

6. On the evidence before it the Tribunal does not accept that: on two occasions the applicant’s family started a successful business in Dhaka which was destroyed by Muslim business competitors; that the applicant took part in various social programs in the Chittagong district; that in 1991 the applicant was threatened by a local Muslim fundamentalist leader; that in May 1992 he became a member of the Chittagong branch of the Bangladesh Hindu, Buddhist, Christian Unity Council and organised rallies and protests; that his family went into hiding in 1992-1993 after family members were killed in communal violence; that after being involved in the Unity Council in 1993-1994, in late 1994 he was threatened by telephone not to act against Muslims and settlers; that in 1994 some unknown fundamentalist abducted his younger sister and forcibly married her and that when the applicant made a complaint to the police he was detained for two nights and tortured and paid a bribe to be released; that during the Muslim fundamentalist attacks in December 1994 his younger brother was caught and has not been found; that in April 1995 he returned to a neighbouring village and was caught by the army and tortured and interrogated for several days where it was alleged the applicant had connections to the Shanti Bahini rebels, and that several days later when the Shanti Bahini rebels attacked the army camp, and when the army moved on, the applicant was left with only three soldiers and escaped while they were drinking; and that the police were looking for him and issued a search warrant against him in the area, and that he then fled to [Country 2] with the help of a broker.

7. During the first and second hearings the applicant was consistent in his oral evidence that one of his brothers had a mental illness and had committed suicide in 2010. In the second hearing the applicant provided a copy of a photograph of his brother and a number of medical documents indicating that his brother was under the care of a psychiatrist who was an assistant professor at the Department of Psychiatry at [a university] in Dhaka who was shocked at his sudden death. During the second hearing the applicant told the Tribunal that prior to his death his brother had been arrested by the police a few times and that the applicant suspected those arrests had something to do with the applicant. On questioning the applicant thought it was maybe because the police wanted to know where the applicant was, although he was unable to tell the Tribunal why he thought that. While the Tribunal accepts the applicant’s brother committed suicide and may have come to the attention of police a number of times, the Tribunal does not accept that that was connected to the applicant.

8. Given the Tribunal’s concerns about the applicant’s credibility and the reliability of his evidence noted above, the Tribunal does not accept the applicant has been detained and interrogated and tortured by the air force or the navy in Bangladesh. The Tribunal does not accept the applicant’s brother was caught by the army and tortured in Dhaka in 2010 or 2011. While the Tribunal accepts the applicant and his brother may have been questioned by police on a number of occasions the Tribunal does not accept this was anything more than routine security checks and the Tribunal does not accept the applicant is of any ongoing interest to the police in Bangladesh. The Tribunal does not accept the applicant was kidnapped and tortured by the JSS / Peace Committee / Peace fighters / Shanti Banini or that he then joined them and was involved with them for one and a half or two years as a peace fighter, or that he then escaped and went to his sister’s home and then left for [Country 2].

9. While the Tribunal notes the applicant raised his concerns about land grabbing in Bangladesh in the first and second hearings, given the recent timing of this claim and the credibility issues noted above, the Tribunal does not accept the applicant has told the truth in relation to this claim and the Tribunal does not accept the applicant’s land has been occupied by the army and or settlers.

10. During the second hearing the Tribunal discussed with the applicant his post hearing written statement that he was totally opposed to Islamic fundamentalism and he has made that known to his community, and that, as it is known to his community in Australia, it will certainly be known to the Bangladeshi community back in Bangladesh. The applicant’s oral evidence about this was very vague and lacking in specific details. When asked about his opposition to Islamic fundamentalism the applicant told the Tribunal he is known [by his real name] in Australia and not by the name he used in the Chittagong Hill Tracts [region]. When asked about his activities with the Bangladeshi Buddhist community in Australia he told the Tribunal he socialises with people and is involved in helping to build a temple which is in the backyard of the home where he lives, and that very few people come to the temple. When asked what else he does with the community he told the Tribunal he does not do much else with the community due to his financial circumstances. When asked about how he has made his opposition to Islamic fundamentalism know to his community, the applicant told the Tribunal he has done nothing much, that some of his friends are Muslims, and that he has not done anything in the last 20 years because he has been away from Bangladesh, although he has spoken to [Ms B] about it. He told the Tribunal while he does not hate the religion he does hate some things about it. When asked how his opposition to Islamic fundamentalism would be known in the Bangladeshi community in Bangladesh the applicant told the Tribunal some Muslims don’t practice humanity and only study the Koran and attend Madrasas and don’t go to any other educational sources. He told the Tribunal it is now a fashion in Bangladesh to wear a Burqa which is not Bangladesh culture. The Tribunal noted the applicant’s post hearing statement indicates that his views are known back in Bangladesh and asked him how that may have happened. In response the applicant told the Tribunal his issues are about the Hill Tracts and being a minority and land grabbing. On questioning the applicant told the Tribunal his only contact with Bangladesh is through telephone calls to his mother once or twice a month.

11. As noted above the applicant’s oral evidence in relation to this issue raised in his post hearing statement was vague and lacking in detail. The Tribunal does not accept the applicant’s mental health conditions or the passage of time explains this. On the evidence before it the Tribunal does not accept the applicant has undertaken any activity in Australia in relation to opposing Islamic fundamentalism, and it does not accept the applicant’s views are widely known or that they would be known in the wider community in Bangladesh. The Tribunal does not accept the applicant would undertake any activities in Bangladesh based on these views if he were to return to Bangladesh, and the Tribunal does not accept that there is a real risk the applicant would suffer significant harm because of his opposition to Islamic fundamentalism.

12. The Tribunal has taken into consideration the numerous country information articles the applicant provided to the Tribunal, as well as the articles provided by [Ms B], and the copy of the Nationality Certificate from the Office of [a certain Council in] October 1992 and its English translation. While the Tribunal accepts the applicant spent time in the Chittagong Hill Tracts districts the Tribunal does not accept the applicant was a permanent resident of that region. The Tribunal has also taken into consideration the DFAT Country Report Bangladesh 20 October 2014 discussed with the applicant during the hearing. The applicant told the Tribunal newspaper reports indicate that in every part of Bangladesh, minorities are affected, mostly by land grabbing. The Tribunal notes the DFAT report is more recent than many of the other country information reports and articles before the Tribunal and the Tribunal considers the DFAT report as authoritative on the situation in Bangladesh. While the Tribunal accepts the country information indicates there is violence and discrimination against religious minorities including Buddhist, the Tribunal also notes that the DFAT report indicates there is an estimated one million Buddhists in Bangladesh and that there are no constitutional or legal barriers to practising Buddhism and that Buddhists are treated equally under Bangladeshi law. The report indicates that Buddhists have faced sporadic instances of societal violence because of their perceived political affiliation with the Awami League. On the whole, DFAT assess that instances of religious and political violence against the Buddhist community are uncommon. Buddhists face a low risk of societal violence on a day to day basis and are generally able to practice their faith without interference. The report also assesses that indigenous people of the Chittagong Hill Tracts region face a low risk of societal violence on a day to day basis. The Tribunal accepts the applicant’s oral evidence that since he left Bangladesh one of his brothers killed himself, and that his sister in law gave birth to a disabled child. The Tribunal is not satisfied that these events occurred due to any discrimination or violence against Buddhists or ethnic minorities in Bangladesh. The applicant also told the Tribunal his [siblings] currently living with his mother are married and working and raising their children and nothing else has happened to his family since he left Bangladesh. While the Tribunal accepts there are some instances of violence against Buddhists and minority ethnic groups in Bangladesh, given the DFAT Country report assessments and the applicant’s oral evidence about his families experiences since he left Bangladesh, the Tribunal considers the risk of violence against the applicant should he return to Bangladesh is remote. While the Tribunal accepts the applicant may suffer some discrimination in Bangladesh in relation to his religion and for being a member of a minority, the Tribunal notes he was able to attend school and his [siblings] continued to work and support their families and his mother, the Tribunal does not accept such decimation would amount to significant harm. The Tribunal does not accept there is a real risk the applicant will suffer significant harm due to being a Buddhist or a member of the minority ethnic group, or arising from his (imputed) political opinion against parties that promote Islam, if he returned to Bangladesh now or in the foreseeable future.

13. During the first hearing the Tribunal discussed with the applicant his written claim that he fears returning to Bangladesh because he has spent a long time in Australia and may be perceived as wealthy. The Tribunal notes the applicant did not raise this in his initial oral evidence about why he fears returning to Bangladesh. As noted above the Tribunal has considered the country information provided to the Tribunal and discussed this with the applicant during the hearing, noting the information provided focuses on violence against minorities in Bangladesh. The applicant told the Tribunal he was not aware of any reports in relation to wealthy returnees. He told the Tribunal most Bangladeshi’s leave Bangladesh for Europe and Canada and do not return.  While the Tribunal accepts that there is some country information in relation to crime in Bangladesh, it is not aware of any country information in relation to the targeting of people who return from Australia and who were perceived as being wealthy. The Tribunal notes the country information indicates there are wealthy people in Bangladesh, and many people travelled in and out of Bangladesh, coming from wealthy countries.

14. The Tribunal notes the DFAT report makes no mention in its discussion of treatment of returnees that returnees are perceived as wealthy and suffer significant harm because of that. On the evidence before it the Tribunal does not accept there is a real risk the applicant will suffer significant harm because he has been in Australia for a long time and will be perceived as a wealthy person on his return to Bangladesh.

15. During the second hearing the Tribunal discussed with the applicant the issue noted in his post hearing submission that with his mental health issues, the lack of adequate health care available in Bangladesh, especially mental health care in Bangladesh, amounts to persecution. As noted above the applicant told the Tribunal he thinks he is depressed about his situation, and although he does not see a doctor in relation to this, he does attend trauma counseling on a weekly basis. He told the Tribunal that he had been doing this for the past three or four months and was unsure how long the treatment would go for, and that before that he had not undertaken any treatment.

16. When questioned about his concerns in relation to the adequacy of mental health care in Bangladesh the applicant told the Tribunal he was concerned about different matters, about what he had been through and gone through. He told the Tribunal he was concerned about the ramifications of being a peace fighter in the past, and if the government would accept him without a problem. The applicant submitted a copy of a photograph of his brother and medical documents. The Tribunal notes the documents include a discharge certificate from [a hospital] in Dhaka, and a handwritten letter from [an] Associate Professor, Department of Psychiatry, [from a university in] Dhaka, which states that [name] was a patient with a mental [disorder], and that he was under the doctor’s treatment and follow-up for a long time and was on antipsychotic medication. The letter states the doctor is very shocked at his sudden death and prays for the salvation of his soul. On questioning, the applicant told the Tribunal his brother had been hospitalised due to his mental health in the past and had been undertaking ongoing treatment [prior] to his death.

17. When asked about the applicant’s concerns about accessing medical services, specifically mental health care services in Bangladesh, given the evidence before the Tribunal that his brother had access to some services, the applicant told the Tribunal he does not know anything about Bangladesh and what is happening there as he has not discussed this and has been away for such a long time.

18. The Tribunal noted that the DFAT country report indicated that Bangladesh’s health system meets basic health needs but health care remains low by world standards. The Tribunal also noted that other country information sources including the United States Department of State Country Report on Human Rights Practices for 2014 – Bangladesh – indicates that the government facilities for treating persons with mental disabilities were inadequate, and that the World Health Organisation report from 2007 on Mental Health Systems in Bangladesh indicated that progress is being made in overcoming the weakness of the mental health system but it should be accelerated, keeping pace with the need of the time[1].

    [1]

19. The applicant told the Tribunal a lot of patients die due to doctor negligence and referred to the Appollo hospital. The Tribunal noted that while the country information indicated that the mental health services in Bangladesh may not be adequate for the population size, it appeared to be related to the size and development of the Bangladeshi economy rather than an intention to mistreat people with a mental illness. The Tribunal also notes that the documents provided by the applicant indicated his brother was able to access hospital and ongoing psychiatric services. In response the applicant told the Tribunal international aid given to the Bangladesh government to help minorities in the Hill Tracts was not properly distributed and was spent on ammunition. The Tribunal noted that the country information indicates that the inadequate heath care services, especially the mental health care services in Bangladesh, is faced by the population in general. In response the applicant told the Tribunal that people are not getting proper treatment due to ignorance by doctors or because they are too busy or due to negligence, and some people leave the country to seek treatment elsewhere due to the lack of medical treatment. The applicant told the Tribunal that good doctors are moved around in the system despite the protests of people wanting to keep good doctors in their local area.

20. The Tribunal has taken into consideration the applicant’s oral evidence and has considered the witnesses’ concerns in relation to the applicant returning to Bangladesh. The Tribunal accepts the [Agency 1] report and it accepts that the applicant currently attends weekly trauma counseling and has done so for the last three or four months. The Tribunal notes that this is a relatively recent treatment and that the applicant has not undertaken such treatment in the past. The Tribunal notes that the applicant was unable to identify the duration of this treatment. The Tribunal accepts that the applicant may wish to continue with this treatment in the future, and that this may be difficult if he returns to Bangladesh given the inadequacies of the mental health care system in Bangladesh. Nevertheless, the Tribunal is not satisfied that the applicant would be unable to access mental health care services given the evidence that the applicant’s brother was under ongoing psychiatric care and had been an inpatient in a psychiatric hospital in Bangladesh.

1. On the basis of the information before it, the Tribunal finds that the inadequacies of the Bangladeshi mental health care system, that the applicant may face on return to Bangladesh, does not involve significant harm. It does not constitute the carrying out of the death penalty or torture or arbitrary deprivation of life. The Tribunal considers the country information indicates that any failure in providing the applicant with mental health care treatment or support will be due to the size and development of the Bangladeshi economy rather than any intentional act or omission, and therefore it is not cruel or inhuman treatment or punishment or degrading treatment or punishment as defined by the Act. The Tribunal also finds that the risk of harm due to inadequate heath care services, especially the mental health care services in Bangladesh, is faced by the population of Bangladesh in general, and therefore is not a real risk that the applicant will suffer significant harm in Bangladesh, in accordance with s.36(2B)(c).

2. The Tribunal notes the applicant told the Tribunal he completed his SSC in Bangladesh and hospitality training in [Country 2] and has worked in numerous roles in the hospitality industry in [Country 2] and as a catering supervisor for six years in Australia and in a warehouse prior to losing his permission to work in Australia. The Tribunal notes the applicant speaks reads and writes English and Bengali. The Tribunal also notes the [Agency 1] report indicates the applicant has managed to maintain a high level of functioning despite his symptoms and situation. The Tribunal also accepts the applicant’s oral evidence that he is not currently on any medication. The Tribunal notes the applicant has significant work experience, and that his mother and [siblings] still live in the family home in Dhaka. While the Tribunal accepts it may be challenging, it does not accept the applicant would be unable to find employment or shelter in Bangladesh, or that his age, or the length of time he has been away, or his mental health conditions, would adversely affect his ability to subsist. The Tribunal does not accept there is a real risk the applicant would suffer significant harm due to his mental health conditions if he was to return to Bangladesh now or in the reasonably foreseeable future.

3. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, or for any combination or cumulative effect of those reasons, if he were returned to Bangladesh now or in the foreseeable future.

4. The Tribunal has considered the applicant’s claims individually and cumulatively, and for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Bangladesh, now or in the foreseeable future.

5. 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 he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

7. 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

8. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Chris Thwaites
   Member  26 August 2015

   
   

   ATTACHMENT - RELEVANT LAW

9. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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; 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.’

   Complementary protection criterion

10. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

11. 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.