1414581 (Refugee)

[2016] AATA 3213

1414581 (Refugee) [2016] AATA 3213 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414581

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:R. C. Titterton

DATE:28 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2016 at 9:18am

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] October 2012 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 1 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.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The hearing was also attended by [Ms A], a friend and support person for the applicant.

SGZIZ

1. In SZGIZ v Minister for Immigration and Citizenship the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. The applicant had previously made an application for protection [in] June 1996. This was refused [in] April 1997. On 16 July 1998 the Refugee Review Tribunal affirmed the Department’s decision. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection. Therefore, his application will be considered again, on complementary protection grounds.

2. Therefore, the issue in this case is whether there are 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 the applicant will suffer significant harm: s 36(2)(aa) of the Act.

SZVCH

1. The Tribunal notes that, at one point after the hearing the applicant claimed, on the basis of a decision of the Federal Circuit Court, namely SZVCH v Minister for Immigration [2015] FCCA 2950, that the review of the delegate’s decision should also be considered again on the basis of Refugee Convention claims. The Tribunal understands that the applicant now accepts that, given further decisions of both the Federal Circuit Court and the Federal Court of Australia, this approach is not available to the Tribunal and the review should proceed only on the basis that the application be considered on complementary protection grounds.

EVIDENCE

1. The Tribunal had before it the following documents.

2. First, the application of the applicant received by the Department [in] October 2012. The application states that the applicant was born on [Date 1], and at the time of the application, was [age] years old. He is married and speaks reads and writes Bengali and English. He entered Australia as a visitor [in] May 1996. At the time he travelled on an [Country 1] passport. His application also states that he lived in [Country 1] for some four years from 1991 to 1995; travelled to [Country 2] for a holiday in January 1996, and then remained in [Country 1] from January to May 1996 working.

3. The application poses the question as to why the applicant left Bangladesh. His response is as follows:

   I am a Hindu from Bangladesh. Bangladesh is an Islamic State where minorities face significant harm. I fear that I will face a real risk of harm including torture, inhuman and degrading treatment because of my religious belief[s]. Recent country information from Bangladesh indicates that Islamic fundamentalism and Taliban influence are fast growing in Bangladesh. The reports further indicate that Hindus continue to face harassment, discrimination and degrading treatment at the hands of Islamic fundamentalists. I fear I will not get adequate state protection in Bangladesh because Islamic fundamentalists have influence among authorities. In addition, I cannot safely relocate to other parts of Bangladesh because Islamic fundamentalists have presence throughout Bangladesh. I fear I will be deprived of [my] right to practice my religion.

4. The application also states that the [Country 1] passport used to travel was “false”. The applicant states that he has applied for a Bangladesh passport, but has not yet received it.

5. The application then states that a detailed statement is to follow. However, the Department was informed by email dated [in] June 2014, prior to the applicant’s interview [in] July 2014 that the applicant would not be providing a further written statement and would be relying on his initial claims for protection and his oral evidence at the interview. The email also attaches various documents relating to the applicant’s health. In November 2013 he suffered a [medical event] and was admitted to [name] Hospital, where a stent was inserted into his [body].

6. Secondly, in addition to the medical evidence referred to above, other documents which were before the delegate at the time of the interview. These include:

   (a)a copy of a letter from the High Commission for the People’s Republic of Bangladesh, dated [in] June 2013, certifying that the applicant had applied for a Bangladeshi passport;

   (b)a copy of the applicant’s [Country 1] passport, issued [in] 1992 in [certain city]. In this passport the applicant’s date of birth is recorded as being [Date 1].

   (c)a copy of a translated certificate dated [in] November 1996, issued by the Chandpur Municipality. The [senior official] and the [official] who have apparently signed the certificate state that the applicant is not involved “in any activity subversive to the country and possesses a clean character”. The Tribunal notes that a copy of the original certificate was not provided, only the translation.

   (d)A birth certificate issued by the Chandpur Municipality Health Department dated [in] July 1996. This gives the applicant’s date of birth as [Date 2].

   (e)A statutory declaration of the applicant dated [in] July 2014. In this statutory declaration, the applicant confirms he was born in Bangladesh in [Date 2] and he is a Bangladeshi citizen by birth. He says that in November 1991 he moved with his extended family to [Country 1] due to their persecution as Hindus. He says that he did not have a Bangladeshi passport or any other official identity documents with him. He applied for an [Country 1] passport in [Country 1] to travel, as he did not have a Bangladeshi passport. He says that the date of birth is different in this passport because he used an [Country 1] broker to obtain the passport and the agent created that date of birth. He also says that there are different dates on the two birth certificates provided because they were issued by different authorities. Finally, the applicant says he provided his correct date of birth in his first protection application in 1996, which records his date of birth as [Date 2], and in the application to the Minister for ministerial intervention. He says that the date of birth it in this application (that is [Date 1]) is incorrect.

   (f)A letter dated [in] June 2013 issued by the High Commission for the People’s Republic of Bangladesh. This letter states that the applicant had applied for a Bangladeshi passport and had visited the High Commission, presumably in relation to the application. The letter states the application had been referred to Dhaka where it is “under process”.

7. Thirdly, submissions of the applicant’s agentm, dated [in][ July 2014. These submissions are 80 pages in length. In summary, the applicant submits that he will face a real chance persecution if he returns to Bangladesh for the cumulative (Convention) reasons of religion (Hindu) and (imputed) political opinion, namely 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. It is submitted that given the current ongoing human rights problems and the underlying systemic legal, religious and social hostility to Hindus, and historic sectarian violence, there is no meaningful option for the applicant to relocate within Bangladesh or to obtain effective protection from the Bangladeshi authorities.

8. In addition, it is submitted that the applicant satisfies the complementary protection criterion.

9. Based on the extensive country information forming part of the submissions the applicant submits:

   (a)Islamic fundamentalism and extremism is growing in Bangladesh;

   (b)Islamic fundamentalists have well connected networks with the international Taliban, have considerable presence in Bangladesh and want to establish Sharia law there; and

   (c)Islamic fundamentalist groups have significant influence among the major political parties in Bangladesh and therefore, there is a real chance that they have influence among the authorities.

10. Fourthly, the decision of the delegate dated [in] August 2014.[1] The delegate refused to grant the applicant a protection visa. The delegate found that the applicant was a citizen of the Republic of [Country 1], who had been born on [Date 1]. The delegate did not find that he had a current right to enter and reside in a third country. As the applicant claimed that he was a Hindu Bangladeshi national who was at risk of torture and inhumane and degrading treatment because of his religion, and the growth of [2]Islamic fundamentalism and the influence of the Taliban, the delegate found that the applicant’s claims for protection were not credible, either under the Refugees Convention or the complementary protection criterion.

    [1] The Tribunal notes that the applicant's current migration agent is [name]. The practice of that firm, for some time, has been to advised clients not to provide the Tribunal with a copy of relevant decision of the Department. However on this occasion it had been provided. This was discussed with [name], who appeared for the applicant at the hearing. He accepted, that on this occasion, the decision of the delegate was before the Tribunal.

11. Fifthly, submissions of the applicant’s agent dated [in] July 2015. This is an article published by the group Odhikar[3] dated 1 July 2015 and titled Six Months Human Rights Monitoring Report. The article states that attacks on religious minority communities and the places of worship have become a common phenomenon. It cites a number of examples.

    [3] Odhikar is a human rights group. Its website states: “Odhikar has been able to established itself as one of the leading human rights organisations of the country. It has developed a strong network of partners and human rights defenders not only all over Bangladesh, but also in the region”: >

    Sixthly, submissions of the applicant’s agent, dated [in] August 2015. These submissions provided additional various articles and country information dealing with the discrimination and persecution of religious minorities in Bangladesh, and recent statements and reports on Islamic fundamentalists in Bangladesh. It is submitted that Bangladesh is predominantly an Islamic State, and recent country information confirms that IS has established a presence and network there. The agent submits that this particular country information is relevant to the applicant’s case because he belongs to the Hindu minority religious group and therefore will be targeted and seriously harm due to his religious beliefs and practices.

12. Seventhly, post-hearing submissions of the applicant’s agent, dated [in] August 2015. These submissions record that the applicant states that he was born on [date] in Bangladesh. He moved to [Country 1] in November 1991 as a result of the worsening situation against Hindu minorities in Bangladesh after the Bharatiya Janata Party in [Country 1] decided to commence Padyatra to educate the people about the Ayodhya movement to abolish Babri Masjid in [Country 1]. The applicant reports that he moved with his extended family to [Country 1] to escape from Islamic extremists in Bangladesh. He reports that because he did not have a Bangladeshi passport, he obtained a false [Country 1] passport and came to Australia [in] May 1996 and since then has stayed in Australia.

13. In an update in relation to his application for a Bangladeshi passport, the agent states that the applicant reports that the Bangladeshi government has failed to recognise his nationality and thus failed to issue a passport. It is reported that, because he came to Australia on a false [Country 1] passport and is not an [Country 1] national, he could not obtain an [Country 1] passport. Although the agent submits that the applicant has submitted sufficient evidence to establish that he was born in Bangladesh and is a Bangladeshi national, as he is unable to obtain necessary travel documents, he effectively is a person without nationality and therefore is a stateless person. As a stateless person, he is in need of international protection and assistance under the Refugees Convention.

The hearing

1. At the hearing the applicant told the Tribunal the following relevant matters:

   (a)he was born on [Date 2] in Bangladesh;

   (b)[in] November 1991 he and his family left Bangladesh under the cover of darkness. This followed an assault on him and his [sibling] while they were operating their [small] business; there were a series of incidents of threats from (he assumes) Muslims including assaults and threats of kidnapping. While the applicant himself was not harmed, his [sibling] was. As a result of these matters the applicant fled to [Country 1] with his wife, children, parents and [siblings];

   (c)the family lived in [Country 1] for approximately 5 years. While living there he obtained an [Country 1] passport;

   (d)he travelled to Australia on that passport arriving [in] May 1996, and first applied for a protection Visa [in] June 1996;

   (e)although he had travelled to [Country 2] and [country], he never applied for protection in those countries;

   (f)he returned to Bangladesh in, he thinks, July 2010. He was trying to recover his property but was not successful at the time. He did not return to his local village. That he did not receive any threats or suffer harm on that visit;

   (g)in 2010 he applied to the Bangladeshi High Commission in [Australia] for a passport. He recalls including a birth certificate, a medical certificate and paying a fee. He says that he has had no response to that application;

   (h)he fears that, on his return to Bangladesh, he will be alone; his parents both died in 1991 and his other family remain in [Country 1]. He said that 98-99% of the population are Muslims, and he would be in a minority if he returns. He has no property there, no family, no support. Asked if he had fears of harm on a return to Bangladesh, he asked me if I wanted him to return to Bangladesh all alone. I explained that had to be satisfied that there was a real risk that he would suffer significant harm if he returned to Bangladesh. He said he left Bangladesh 30 years ago under cover of darkness, leaving behind his property. He went to [Country 1], along with members of his family, "bare handed". He cannot imagine going back to the same place again, after 31 years, which is predominantly inhabited by a Muslim population. With his religious faith he could not live there.

   (i)in answering the question, why he came to Australia in 1996, he said he came with high hopes, knowing that human rights were valued here. After some prevarication, he said that he came to Australia in order to seek protection. I asked the applicant why was that, living in [Country 1], and having an [Country 1] passport, he left his family to come to Australia to seek protection in respect of claims of persecution and harm he faced in Bangladesh. The applicant gave me a long and discursive response which did not address the question. Nevertheless, I am prepared to assume he came to Australia for the purpose of seeking protection.

2. [Ms A], a friend and support person for the applicant gave brief evidence to the Tribunal about the attempts the applicant had made to obtain his Bangladeshi passport. She confirmed that she had accompanied the applicant on at least 20 occasions to see High Commission staff when they came to [city] in connection with obtaining his passport. The Tribunal notes that there was no reason whatsoever not to accept [Ms A]’s evidence. In addition, towards the end of the hearing, when I asked the applicant why he used the date in his [Country 1] passport in his second and recent application protection, she explained that, and [Mr B] agreed, the Department only allows applicants to use the birth date stated in the documents on which they relied (in this case the [Country 1] passport) in support of their application.

3. Towards the end of the hearing I indicated that the applicant had not claimed that he would face significant harm, within the meaning of the Act, if he returned to Bangladesh. In response, [Ms A] said that the applicant was [age] years old he, had just had a [medical event], and he would not the able to employment in Bangladesh. She submitted that he would be deprived of his life due to lack of employment and starvation. Nor would he be able to access medical facilities. [Ms A] submitted that these matters, in particular, lack of employment leading to starvation, subsequently leading to death, fell within the definition of significant harm. In addition, she submitted that with no family in Bangladesh, are nowhere to stay, this would also lead to his death and again satisfy the definition of arbitrary deprivation of life contained in s 5 and s 36(2A) of the Act.

CONSIDERATION AND FINDINGS

Citizenship

1. There is an initial, and critical question, about the applicant’s nationality. As noted above, the delegate found that the applicant was a citizen of [Country 1]. At the hearing before me it was claimed that the applicant was a citizen of Bangladesh, and had applied to the High Commission in [Australia] for a passport. In post-hearing submissions, the applicant claimed that he had submitted sufficient evidence to establish that:

   (a)       he was born in Bangladesh and was a Bangladeshi national;

   (b)he could not have obtained [Country 1] citizenship or an [Country 1] passport as he was not eligible to become an [Country 1] citizen by reference of s 6 of the Citizenship Act of [Country 1] 1955;

2. In the alternative the applicant submitted that, as he is unable to obtain a Bangladeshi passport (because the Bangladeshi authorities have so far failed to recognise him as their national), and is not eligible to obtain an [Country 1] passport because he was not an [Country 1] citizen, he is therefore now a stateless person, as he is unable to obtain necessary travel documents. As a stateless person, he is in need of international protection and assistance under the Refugee Convention.

3. Based on:

   (a)the applicant’s sworn oral evidence at the hearing;

   (b)the copy of the birth certificate issued by the Chandpur Municipality Health Department dated [in] July 1996;

   (c)the statutory declaration of the applicant dated [in] July 2014 which states that:

   (i)the applicant was born in Bangladesh in [Date 2];

   (ii)the applicant provided his correct date of birth in his first protection application in 1996, which records his dated birth as [Date 2] and in an application to the Minister for Ministerial intervention. He says that the date of birth it in this application (that is [Date 1]) is incorrect,

   (d)[Ms A]’s ((limited) evidence corroborating his claims of Bangladeshi nationality,

   I am satisfied that the applicant was born in Bangladesh of Bangaldeshi parents on [Date 2]. I accept the applicant’s explanations set out in his statutory declaration for the discrepancy in the dates appearing in the two birth certificates, both of which state that he was born in Bangladesh, and his explanation as to why the date of birth in the present application is incorrect.

1. Bangladeshi citizenship is provided primarily jus sanguinis, or through bloodline, irrespective of the place or legitimacy of the birth. Therefore, any person born to a Bangladeshi parents, regardless of their place of birth, is a Bangladeshi citizen. I find therefore that the applicant is a bangaldeshi citizen.

2. In this respect, I note the submission of the applicant’s agent, made during the hearing, that the fact the hearing was conducted in Bengali was further evidence of the applicant being born in Bangladesh and being a Bangladeshi citizen. I further note that, at the conclusion of the hearing, [Mr B] drew my attention to the decision of the delegate in July 1998 (being the reasons for decision in relation to the applicant’s first claim for protection made in 1996). The delegate found that the applicant was a credible witness and a citizen of Bangladesh.

3. Accordingly, I find that the receiving country for the purposes of the applicant’s complementary protection claims is Bangladesh.

4. In making the finding that the applicant is a Bangladeshi citizen, I reject the uncorroborated claim made in the applicant’s submission [in] August 2015, made immediately after the hearing, that the Bangladeshi Government has failed to recognise the applciant’s nationality and failed to issue a passport to him. The evidence of the High Commission, referred to above, while dated, indicated that his application for a passport is under consideration.

5. It follows that I do not find that the applicant is Stateless as claimed in his alternative submission.

Does the applicant have the right to enter and reside in any other country?

1. I accept the evidence of the applicant that the [Country 1] passport on which he travelled to Australia was false. I also accept the submission of his agent that the applicant was not entitled to such a passport as he could not satisfy the relevant provisions of the Citizenship Act of [Country 1] 1955. Therefore I find that the applicant is not excluded from Australia’s protection by s 36(3) of the Act as I have found that he is a citizen of Bangladesh.

Findings

1. Various decisions of the Federal Court of Australia[4] have held that when, determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, the Tribunal is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.

   [4] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.

2. Bearing those observations in mind, broadly speaking I consider that the applicant gave oral evidence consistent with his written claims of harm based on being a Hindu in Bangladesh, and make the following findings:

   (a)the applicant was born on [Date 2] in Bangladesh to Bangladeshi parents;

   (b)[in] November 1991 the applicant and his family left Bangladesh following a series of incidents, including an assault on his [sibling] and a threat of kidnapping in relation to his [child];

   (c)the applicant and his family lived in [Country 1] for approximately 5 years. While living there he obtained a false [Country 1] passport;

   (d)although the applicant has travelled to [Country 2] and [country], he never applied for protection in those countries;

   (e)the applicant travelled to Australia on that passport arriving [in] May 1996, and first applied for a protection visa [in] June 1996;

   (f)the applicant returned to Bangladesh in about July 2010. He did not return to his local village. He did not receive any threats or suffer harm on that visit;

   (g)in 2010 he applied to the Bangladeshi High Commission for a passport. That application is still being processed.

3. I have summarised various claims of [Ms A] above, the substance of which is that the applicant would suffer significant harm within meaning of the Act were he to return to Bangladesh. I do not accept that because of his age or health the applicant would be unable to find employment in Bangladesh. His application shows that he has been employed while in Australia almost continuously as a [occupation] since his arrival. I see no reason why he would be unable to work in similar positions in Bangladesh. Accordingly, I do not accept that, were he to return to Bangladesh, he would be deprived of his life as claimed. Nor do I accept that the applicant would be unable to access medical facilities. While well-meaning, the submissions of [Ms A] are generalised and I do not accept that any of the claims advanced constitute significant harm within the meaning of the Act.

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 that the applicant will suffer significant harm?

1. The assessment of the level of risk which must be established to meet the criterion in s 36(2)(aa) is made up of three components: the Minister (or this Tribunal on review) must have substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm.

2. As was explained in the Explanatory Memorandum introducing the complementary protection amendment legislation:

   [a] real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal.  The risk must be assessed on grounds that go beyond mere theory and suspicion but does not have to meet the test of being highly probable.  The danger of harm must be personal and present.[5] 

   [5]           Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [67].

3. The test under s 36(2)(aa) is a forward-looking one of reasonable foreseeability.[6]

   [6]            In WZASD v MIBP [2013] FCCA 1940; SZTQP v MIBP [2015] FCCA 423.

4. The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the Refugee Convention criterion in s 36(2)(a).[7]The authorities establish that a ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. The expression ‘a real chance’:

   … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[8]

   [7]           MIAC v SZQRB (2013) 210 FCR 505.

   [8] (1989) 169 CLR 379 at 389.

5. ‘Well-founded’ means something more than plausible; the fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[9]

   [9]           Chan v MIEA (1989) 169 CLR 379 at 397.

6. Mere speculation cannot establish a well-founded fear. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[10]

   [10]          MIEA v Guo (1997) 191 CLR 559 at 572

7. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A).[11] Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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. 

   [11]          SZRTN v MIAC [2013] FCCA 583

8. Taking these matters in turn, the applicant submits that there is a real risk that he will suffer significant harm if he returns to Bangladesh for the cumulative reasons of religion (Hindu) and (imputed) political opinion, namely 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. In addition, the applicant claims that the recent rise of IS and Islamic extremism and fundamentalism has increased the risk of harm to him as a Hindu.

9. The starting point is the DFAT Country Report for Bangladesh dated 20 October 2104, which the Tribunal must take into account. Relevantly that Report states in relation to the Hindu religion:

   Religion

   3.22 Religion plays a central role in Bangladeshi society. Islam is dominant and the level of acceptance of minority religions changes, depending on which political party is in government. The current AL Government supports religious freedom. The Criminal Code includes offences aimed at protecting religious practices and places. Under a BNP government in 1977, Bangladesh’s Constitution was amended to establish Islam as the fundamental principle of Bangladesh society. In 2010, the AL government restored the principle of secularism but retained Islam as the state religion.

   3.23 The close relationship between politics and religion has meant that sectarian tensions between Bangladesh’s Muslim population and Hindus and Buddhists are commonly linked to perceived political affiliations. Generally these communities exist and interact peacefully on a day-to-day basis but tensions can escalate during times of broader political unrest.

   Hindus

   3.24 An estimated 13.5 million Hindus (8.5 per cent of the total population) live in Bangladesh, representing the third largest Hindu population in the world after India and Nepal. Hindus cannot be physically distinguished from the majority Muslim population and the vast majority of Hindus speak Bengali. There are no legal restrictions on Hindus practising their religion or participating in broader society. Hindus make significant contributions to Bangladeshi public life including in politics, academia and the arts. While they have traditionally supported the secular Awami League (AL), and left-leaning parties such as the Communist Party of Bangladesh, all major political parties have, at some point, fielded Hindu candidates. There are currently four Hindu members in the AL cabinet.

   3.25 While Hindus live throughout Bangladesh, many have claimed ancestral lands in the southeast. Prior to 2011, many Hindus had their land confiscated under the now repealed Enemy Property Act 1965. As a result of broad legal reforms, including the introduction of the Vested Properties Return (Amendment) Act, land is now being returned. State security forces provide Hindus with adequate protection against land-grabbing.

Hindus – Societal Violence

3.26 Hindus have faced societal violence in connection with significant political events or land disputes. Credible international and local sources have claimed that violence against Hindus has increased since the 2008 election due to their perceived political allegiances with the AL. The testimony of a number of Hindu witnesses at the International War Crimes Tribunal has contributed to this situation. An increase of Islamist sentiment has also occurred in Bangladesh in recent years.

3.27 Violence against Hindus was focused around the January 2014 election (see ‘2014 General Election’) and followed a previous spike in February 2013 after the conviction of Delwar Hossain Sayedee, the Vice President of JI, by the International War Crimes Tribunal. JI activists and the student wing conducted violent protests across Bangladesh in response to the verdict, damaging a significant number of Hindu-owned properties, businesses and temples in the process.

3.28 While noting security forces were significantly stretched in providing election security across Bangladesh, the Government acknowledged it provided inadequate protection for the Hindu community and has since transferred a number of police officials for failing to do so. Following the violence, the Bangladesh Supreme Court ordered the government to increase protection for Hindu communities and to assist repair and rebuild Hindu temples and property destroyed in the attacks.

3.29 DFAT assesses that the state is generally able to provide adequate protection to the Hindu community from societal harassment or violence. Failures to do so are not a sign of systemic or deliberate neglect but rather of a lack of resources and capacity. The Hindu community is generally able to practise their faith without interference and do not live in fear of societal violence on a day-to-day basis.

3.30 Violence against Hindus has occurred outside of the political process, particularly in relation to long running disputes over land in southern districts. However, since legal reforms were introduced in 2011, these incidents have become rare.

3.31 DFAT assesses that Hindus face moderate levels of societal violence in connection with significant political events. The majority of incidents involve vandalism or destruction of property and, less frequently, places of worship. Incidents of violent crime against individual Hindus, including murder or rape in connection with significant political events, are infrequent.

1. In relation to political opinion, both actual and imputed, the DFAT Report states:

   The Opposition Parties—Bangladesh Nationalist Party and Jamaat-e-Islami

   3.50 Since 1971, the Awami League (AL) or Bangladesh Nationalist Party (BNP) have, when in government, applied a hard-line approach against the other. The current AL Government has limited the political activities of BNP and Jaamat-e-Islami (JI) and high profile members have been arrested.

   3.51 The overwhelming number of deaths or injuries relating to political opinion in Bangladesh’s recent history occurred around the 2014 general election and verdicts of the International War Crimes Tribunal. Hundreds of BNP members and supporters were arrested by state security forces in connection to these events (see ‘Recent Political Violence’ above). In August 2013, the Supreme Court disqualified JI from participating in the January 2014 elections on the grounds that its charter was unconstitutional because it prevented women and non-Muslims from serving in political or bureaucratic positions. In response to the ban, hundreds of JI members and supporters rioted in Dhaka. The state responded by arresting rioters, closing JI offices and banning JI from conducting further rallies. JI members and supporters also protested against decisions of the International War Crimes Tribunal and many were subsequently arrested by government forces.

   3.52 Estimated injuries and deaths linked to protests throughout 2013 and early 2014 vary greatly but are in the range of several hundred (see ‘Recent Political Violence’ above). Credible international and local sources reported that government security forces used live ammunition against protesters. State security forces also suffered injuries, including individual police officers being bashed at protests in Dhaka and in southern districts by BNP and JI supporters.

   3.53 The majority of BNP and JI supporters arrested at protests or riots were released on bail to face charges at a later date, or released without charge shortly after arrest. Some BNP or JI leaders were held in custody for longer periods without charge. A small number of BNP and JI leaders remain in custody without charge. The majority have been treated humanely during their detention (see ‘Torture and Cruel, Inhumane or Degrading Treatment’, below).

   Opposition Parties – Official Discrimination or Violence

   3.54 There have been occasional allegations since 2008 that high profile BNP and JI members have been victims of enforced disappearances, kidnapping and fabricated criminal charges. Authorities have generally launched investigations into these matters, but few indictments have been made. The number of allegations has reduced in recent years (see ‘Complementary Protection Claims’, below).

   3.55 DFAT assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Opposition leaders, or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face a higher risk of arrest when engaged in political protests.

2. It is to be noted that there is no mention in the Report that Hindus by reason of their religion face harm in Bangladesh because of (imputed) political opinion arising from their faith (holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh), or because of the recent rise of IS and Islamic extremism.

3. I note that country information supporting these first two submissions appear in the 80 page letter of the applicant’s agent to the tribunal dated July 2014. The country information appearing there is divided into a number of sections being:

   (a)“statements and reports on Islamic fundamentalism in Bangladesh” (20 articles);

   (b)“persecution against religious minorities particularly against Hindus” (71 articles)

   (c)“most recent reports and statements on the volatile political situation reported in the Independent sources” (26 articles);

   (d)“directly relevant and recent country information appearing in the following are to decisions” (83 articles).

4. As noted above, based on the totality of this material, the applicant submits

   (a)Islamic fundamentalism and extremism is growing in Bangladesh

   (b)Islamic fundamentalists have well connected networks with the international Taliban, have considerable presence in Bangladesh and want to establish Sharia law there;

   (c)Islamic fundamentalist groups have significant influence among the major political parties in Bangladesh and therefore, there is a real chance that they have influence among the authorities.

5. Based on the applicant’s own evidence, and the country information which he relies, the Tribunal does not accept, and does not find, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm because of his religion, because of political opinion that may be attributed to him because of that religion, or because of the recent rise of Islamic fundamentalism in Bangladesh. All of the information relied on in the submissions of 9 July 2014 predates the DFAT Country Report (in some instances by over ten years), the recency of which I place great weight. In that respect, I note that the DFAT Report states at 3.29 that DFAT assesses that Bangladesh is generally able to provide adequate protection to the Hindu community from societal harassment or violence, and that failures to do so are not a sign of systemic or deliberate neglect but rather of a lack of resources and capacity. The Hindu community is generally able to practise their faith without interference and do not live in fear of societal violence on a day-to-day basis.

1. As to the submissions of 13 August 2015, these address, in relation to discrimination and persecution against religious minorities, land grabbing, which is not of relevance to the applicant’s claims. There is some material which supports the claim that Islamic fundamentalism is growing in Bangladesh, but the submissions fail to link that factor with any harm that may be faced by the applicant, save for the bare assertion that because he is a Hindu he will be targeted and seriously harmed for that reason. To the extent that these submissions relate to the question of statelessness, for the reasons stated above I have rejected the submission that the applicant is stateless.

CONCLUSIONS

1. Having regard to the foregoing reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.

2. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(aa) of the Act for a protection visa.

DECISION

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

R. C. Titterton
Member