1415731 (Refugee)

[2015] AATA 3403

1415731 (Refugee) [2015] AATA 3403 (8 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415731

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Susan Pinto

DATE:8 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 September 2015 at 11:12am

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. The applicant is a citizen of Bangladesh. He is aged in his early [age]. He arrived in Australia on a Subclass 572 (Student) visa [in] May 2009. The applicant was subsequently granted other Student visas, but was refused the grant of a further Student visa [in] November 2012. The applicant commenced a review of the Subclass 572 visa with the Migration Review Tribunal (MRT) on 3 December 2012. He withdrew that application on 29 November 2012.

2. The applicant applied to the Department of Immigration for a Protection the visa [in] August 2013. The applicant essentially claimed that he is homosexual and if he returns to Bangladesh his parents will attempt to force him to marry and he will suffer discrimination, ostracism and harm as a result of his homosexuality.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] September 2014. The delegate did not accept that the applicant is homosexual and found that he had manufactured his claims following the refusal of his Student visa. 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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration are whether the applicant has a well founded fear of persecuted for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangaldesh that there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant have a well founded fear of persecution for a Convention reason?

5. The applicant indicated on the application form that he speaks, reads and writes English, Hindi and Bengali. He stated that he was born [in] Chittagong Province in Bangladesh. He lived in Dhaka from 2002 to May 2009 when he departed Pakistan. The applicant stated that he had [number] years of education in Bangladesh and his highest qualification is a [tertiary qualification], completed in Bangladesh in [year].

6. In a statement provided with the application, the applicant states that he is homosexual. He states that he became aware of his sexual orientation at an early age. He fears serious harm in Bangladesh due to his sexual orientation because Bangladesh is a predominantly Muslim country and homosexuality is against the teachings of the Holy Quran, it is a punishable offence in Bangladesh and the authorities do not protect homosexual men. In his statement, the applicant referred to his homosexual experiences in Bangladesh and states that since his arrival in Australia he has been involved with many gay men and had several sexual encounters. The applicant states that he was previously living in [a regional town] with his sister and brother in law, but when they found out about his sexuality they asked him to leave their home. They “feel bad” about deserting him, but they do not want to be ostracised from their family and community by supporting him. The applicant discusses his relationship with [Mr A], whom he met in January 2013, and in April 2013 they decided to live together.

7. The applicant also states that if he returns to Bangladesh and people find out about his sexuality, it would ruin his life and that of his family. The applicant’s family would force him to marry to save themselves from the shame and embarrassment. The applicant is very afraid that his brother in law in Bangladesh, who comes from a very conservative Hindu family, will break off his relationship with the applicant’s sister. He fears that he and his family would be subjected to discrimination, isolation, verbal abuse and harm from homophobic persons.

8. The applicant was interviewed by the delegate [in] February 2014 and attended a hearing with the Tribunal on 17 August 2015. The applicant’s partner, [Mr A], attended the Department interview, but was not asked to provide evidence. He also attended the Tribunal hearing, at which he provided evidence. Evidence was also provided to the Tribunal during the hearing by a [psychologist].

9. The applicant provided substantial documentary evidence to the Department, including photographs of himself with homosexual friends; membership cards in the applicant’s name for gay clubs; letters from Trikone Australasia recording their contact with the applicant; letters from counsellors, including ACON Health; statutory declarations from the applicant’s sister and her husband; and statements from the applicant’s partner and others attesting that the applicant is homosexual and they have had sexual relationships with him.

10. Additional documentation provided to the Tribunal included further psychologist’s reports stating that the applicant is homosexual, including from [the psychologist]; several photographs of the applicant with his partner and friends; statements from [Mr A]’s work friends and colleagues stating that they have met the applicant and are aware of the relationship between the applicant and [Mr A]; and statutory declarations from other friends, including a couple from [a regional town] who state that they know the applicant and his sister. They state that they knew the applicant was very upset at having to move out of his sister’s home and are aware that his sister was distressed to discover the applicant is homosexual. They state that the applicant’s sister is worried that they will be ostracised by their community due to the applicant’s homosexuality. They also state that they are aware that the applicant is living with his [boyfriend].

11. As stated above, the delegate found that the applicant is not homosexual. The delegate did not accept that the applicant was unaware of Protection visas until March 2013, and his responses to the Department in relation to his Student visa applications indicated that he had a desire to return to Bangladesh after the completion of his studies. The delegate also found that the photographs were staged and the evidence fabricated in order to provide a basis for a Protection visa application.

12. Prior to the Tribunal hearing, the Tribunal had similar concerns as those expressed by the delegate. The Tribunal agrees with the delegate in relation to the lengthy delay in the lodgement of the application and does not accept the applicant’s claims that he was unaware of Protection visas and only found out about them from a friend in March or April 2013, which is two months after he met [Mr A], a Bangladeshi man who was granted protection by the Department several years earlier due to his homosexuality. The Tribunal does not accept that it is credible that the applicant, who had sought the assistance of experienced migration agents in mid 2012 to assist him with his Student visa application, for which he was having difficulties due to his lack of engagement with his studies, would not have advised those agents of his desire to remain in Australia as a result of his homosexuality. The Tribunal also does not accept that the applicant would not have learned at an earlier time from persons in the Bangladeshi community that homosexuals have a reasonable prospect of being granted protection in Australia. The Tribunal considers that the applicant has not been truthful about this aspect of his evidence, and that this not only casts doubts about his overall credibility but also his claims to fear harm in Bangladesh. However, despite these concerns the Tribunal found the applicant and [Mr A] to be credible witnesses who were able to articulate in a persuasive and straightforward manner the details of the development of their relationship and daily lives together. Their claims that they are in a genuine and committed relationship is supported by the documentation and statements by their friends and family members. It is also supported by the evidence of [a] psychologist with several years experience in treating persons who are experiencing difficulties due to their sexual orientation, who states that he has visited the applicant and [Mr A] at their home [on] three occasions and has observed that they are in a committed relationship. The Tribunal found [the psychologist] to be a professional and credible witness. The Tribunal accepts on the basis of that evidence that the applicant and [Mr A] are in a committed homosexual relationship which is known and recognised by several persons both within their community, as well as some of [Mr A]’s work colleagues, professional persons, and others. The Tribunal accepts, on the basis of the relationship between the applicant and [Mr A] that the applicant is homosexual.

13. The Tribunal has considered, therefore, whether there is a real chance that the applicant will suffer serious harm in Bangladesh for reasons of his membership of a particular social group of homosexuals. The Tribunal has had regard to the evidence cited by the delegate stating that homosexuality is an offence in Bangladesh, but that the law is rarely enforced. The Tribunal accepts the applicant fears harm due to his sexual orientation if he returned to Bangladesh, particularly because he will be forced by his family to marry a woman. The Tribunal has also taken into consideration the country information and reports referred to in the representative's written submissions in relation to the ill treatment of homosexual people in Bangladesh. The Tribunal has also taken into account the DFAT Country Report Bangladesh 20 October 2014[1] and reports from Freedom House,[2] the Immigration and Refugee Board of Canada[3] and the United States Department of State.[4] Those reports confirm that homosexual acts are illegal in Bangladesh under the Criminal Code and although the law is rarely enforced it is used as leverage by police to harass and extort bribes from individuals. Police are known to sporadically patrol locations where gay men congregate and to threaten arrest until a bribe is paid. Social stigma based on sexual orientation is widespread in Bangladesh and prevents open discussion about sexuality. The reports further indicate that the majority of homosexual individuals hide their identity to avoid harassment and in both urban and rural areas discovery of homosexuality can lead to violence. Social barriers and stigma also result in many homosexuals being unable to obtain employment, and many homosexuals conceal their sexual identities because homosexuality is considered to be sinful and the consequence for persons revealing their homosexuality is severe.

    [1] Department of Foreign Affairs and Trade 2014, Country Report: Bangladesh, 20 October.

    [2] Freedom House 2011, Freedom in the World 2011 – Bangladesh, 26 May – accessed 30 May 2011

    [3] IRB 2010, Bangladesh: Treatment of homosexuals including legislation, availability of state protection and support services, UNHCR Refworld website, 19 July ww.unhcr.org/refworld/docid/4dd1122f2.html – accessed 18 November 2011

    [4] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – Bangladesh, Section 6

14. On the basis of the independent evidence, the Tribunal accepts that the chance that the applicant will suffer serious harm upon his return to Bangladesh due to his homosexuality is real. The Tribunal also accepts that there is a real chance that the applicant will suffer serious harm anywhere in Bangladesh and that relocation is not a reasonable option for him. The Tribunal accepts that even though the law criminalizing homosexual acts is not enforced, the effect of the law is that state protection is not available for homosexuals who experience discrimination or violence from members of society, and therefore the applicant could not obtain, from the Bangladeshi authorities, protection such that there would not be a real chance he will suffer significant harm. The Tribunal is satisfied that the harm the applicant fears is because he is a member of a particular social group of homosexuals. The Tribunal finds, therefore, that there is a real chance that the applicant will suffer serious harm for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.

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

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Susan Pinto
    Member

    
    

    ATTACHMENT B - RELEVANT LAW

    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 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 of the same class as the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as the applicant.’

    Refugee criterion

    Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

    Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

    The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

    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.  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.

    Ministerial direction

    In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.