1419878 (Refugee)

1419878 (Refugee) [2016] AATA 3661 (4 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419878
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Tania Flood
DATE:4 April 2016
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 04 April 2016 at 11:39am
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

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).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] December 2014.
The applicant appeared before the Tribunal on 11 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36 (2) (a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2) (a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Bangladesh for a Convention reason or alternatively if there are substantial grounds for believing there is a real risk he will suffer significant harm if removed from Australia to Bangladesh. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country information on Hindus in Bangladesh
The US Department of States, 2014 report on International Religious Freedom in Bangladesh states:
Hindus make up 9.5 per cent of the total population.
The constitution designates Islam as the state religion, but states the nation is a secular state that shall ensure equal status and equal rights in the practice of the Hindu, Buddhist, Christian, and other religions.
Government officials, including police, were sometimes slow to protect individuals, including members of minority religious groups, from violence and often reluctant to investigate violent incidents. The National Human Rights Commission stated the government failed to prevent attacks on Hindus after the January 5 election, and the High Court rules that law enforcement agencies had seriously failed to protect members of vulnerable groups, including religious minority communities, from post-election violence. The government took steps to assist victims and restore religious and private property damaged in the violence. In May police reportedly refused to investigate the case of a 12 year old Hindu girl who was forcibly converted to Islam. Government officials stated that resource and capacity constraints sometimes limited their ability to take proactive efforts to extend greater religious freedom protections or to counter societal actors.
Minority groups, especially Hindus, were victims of attacks and looting of religious sites and private homes, particularly in the period surrounding the January national election. According to human rights organisations, violence against members of minority religious groups often included additional factors and could not be attributed solely to religious affiliation.
Members of minority religious groups from lower economic strata said they were further disadvantaged due to their inability to afford personal security or to motivate officials to provide security against harassment or violence.
Violence against members of minority religious groups continued to result in the loss of lives and property. Attacks against Hindus, in particular, continued throughout the year.
DFAT’s Country Report on Bangladesh (20 October 2014), states:
There are no legal restrictions on Hindus practicing their religion or participating in broader society.
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.
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.
A 2014 Annual Human Rights Report on Bangladesh published by Global Human Rights Defence, states:
Hindus make up for 9% of the population…. And are the largest religious minority group in Bangladesh.
They are scattered throughout the different districts of Bangladesh with high concentrations in the border regions of Dinajpur, Thakurgaon, Moulvibazar, Stkhira and Bagerhat. Hindus have been subjected to attacks and discriminatory practices due to their marginalised position in society and the perpetrators of these acts largely remain unpunished. Since the independence of Bangladesh, the protracted human rights crisis face by Hindus has not been properly addressed by successive governments. According to the 1951 census for East Bengal, which became modern day Bangladesh, Hindus made up 22% of the total population. The Hindu population has been decreasing over the years due to pervasive and systematic human rights violations faced by the group.
2014 witnessed numerous incidents of vandalism and desecration directed at places of worship of religious minorities. These acts included thefts of property in places of worship, damaging of religious statues and arson attacks. Such attacks are based on religious animosity, a symbolic violence that constitutes a message to religious minorities that their religious beliefs are not welcome in the community or country. However at times it is difficult to identify the motivation behind attacks when property disputes, personal conflicts or even political affiliation are involved.
The Hindu American Foundation, in its report, Hindus in South Asia and the Diaspora: A Survey of Human Rights 2013, stated that:
Hindus of Bangladesh continue to be victims of ethnic cleansing waged by Islamic fundamentalists that include daily acts of murder, rape, kidnapping, forced conversions, temple destruction, and physical intimidation. There were several large scale incidents of violence in 2012, including at Nandirhat-Hathazari, Sathkira, and Dinajpur. The International Crimes Tribunals established in 2010 to prosecute those accused in the rape, murder, and genocide of ethnic Bengalis (mostly Hindus) during Bangladesh’s struggle for independence in 1971 indicted several leaders of Jamaate-Islami (JeI) and the main opposition Bangladesh Nationalist Party (BNP) in 2012. In the early months of 2013, the Tribunals convicted three JeI leaders, leading to violent riots by Jamaat and their student affiliate, Islami Chhatra Shibir, and the destruction of more than 50 Hindu temples and 1,500 Hindu homes.
As Amnesty International noted, “The Hindu community in Bangladesh is at extreme risk...It is shocking that they appear to be targeted simply for their religion. The authorities must ensure that they receive the protection they need”.
Odhikar also expressed concern for the safety of the Hindu community and demanded that the government and all political parties ensure the life and security of the Hindu community immediately.
On 2 February 2014 Amnesty International reported,
‘Government must protect the minority Hindu community’, that Hindu communities in Bangladesh had been subjected to arson attacks on their homes and temples in the aftermath of the January 2014 elections. The report notes that victims of such attacks mostly attribute the blame to the JI or BNP, but some claim that Awami League members were responsible. The report also states that Hindus have been targeted around the time of elections as they are seen as a ‘vote bank’ for the Awami League, and are targeted by JI and BNP supporters to prevent them from voting. Finally the report states that many within the Bangladesh human rights community believe that the authorities have not done enough to protect Hindus and have failed to provide justice for victims of attacks.
Various news reports document attacks against Hindu congregations and places of worship in 2015 and 2016.
Summary of claims
In a statutory declaration attached to his application for a Protection visa dated [in] July 2013, the applicant claims the following:
He is a Hindu from [Village 1] in the District of Jessore in Bangladesh. His village has a population of four to five thousand villagers of which about 30 to 40 households are Hindu. The remainder of the village practice the Muslim religion.
His Hindu religion is important to him. He was a member of the [Puja] Committee of the local Hindu Temple. As a committee member he used to assist in organising the Puja.
While some of the local villagers in [Village 1] tolerate their Hindu festivals members of Jamaat-e-Islami (JI) find the practice of their Hindu religion an affront to their religion and oppose them holding the Puja in the village.
Towards the end of 2009, he was with around seven other people undertaking [a specific] Puja which is a Puja for the benefit of school students. There were [number range] school students participating in the Puja. Seven to eight people belonging to JI approached the Puja and blocked their way forward. The members of the Puja tried to continue the processions and fighting broke out. They carried on through the fighting and scuffles and managed to finish their Puja.
That night when he returned home after the Puja an angry mob of around 10 to 12 people came to his house and called for him. When he opened the door he was forcibly abducted by the mob and taken to a field and beaten. He was beaten with fists, sticks and kicked and knocked to the ground. Whilst on the ground a knife was placed at his [body] and the mob tried to slaughter him. He screamed for help and some villages approached with torches to see what was happening and the mob ran away. The mob stopped short of killing him but he has the scar where his [body] was cut by the knife.
He was too scared to go back home and so spent the night hiding in a bush near the [venue]. He was too frightened to return to the village and in the early morning walked across the border to [Country 1]. In [Country 1] he stayed with his [Relative 1] in [Village 2] near the Bangladesh border. His [Relative 1] allowed him to stay with them and he worked for his keep by working on their farm.
He could not stay indefinitely in [Country 1] as he did not have residence papers or permission to stay. He was scared he would be deported back to Bangladesh. He kept in contact with his family in [Village 1] by telephone and his father proposed to send him to Australia with the assistance of a smuggler. He returned to Bangladesh to transit through [a port] where he took a boat to [Country 2] and eventually to Australia.
If he returns he fears he will be harmed and possibly killed by members of JI who have already tried to kill him for being a Hindu worshipper.
He is not able to obtain any protection from the local authorities as the police are corrupt and sympathetic to groups such as JI. If he goes to the police he will be targeted by the majority Muslim community for reporting the attack on him. The police will not assist him as he has no financial backing and the mob, who are members of JI are connected to the police.
There is nowhere to go in Bangladesh to find protection. He relies on his family and village network in order to survive in Bangladesh. He can only access his familial network living in his village or its surrounds. He has little education, no trade, no profession and no real means to find employment outside his village.
The JI people who are seeking to harm him have a network throughout Bangladesh and can find him wherever he goes.
There have been significant recent attacks on Hindu worshippers in Bangladesh with dozens of Hindus being killed by fundamentalist mobs following a top Islamic leader being sentenced to death for war crimes. He fears he will be once more caught up in the mob violence directed at the Hindu minority.
On 1 September 2015, the applicant’s representative made submissions on his behalf in relation to matters arising from the Delegates decision. Country information regarding the situation of religious minorities and Hindu’s in Bangladesh was also provided. It was submitted that:
The Delegate did not give fair weight and thought to the fact that Hindu’s in Bangladesh as a whole are persecuted for their religious faith in a country dominated by Muslims.
The applicant has a typical Hindu name and it is not far-fetched that he is a practicing Hindu.
As a junior member the applicant may not have had a formalised position but did work alongside established members of the temple and led people from the front as help was always needed especially on festive occasions.
The [specific] Pooja is not a procession but more of an in-temple or home event. It is nothing like Ganesh, Durga, Krishna or Vishnu Pooja which takes routes along the streets and towards the river. The [specific] Pooja is more catered towards students and therefore is conducted in a more serene setting with far less fanfare then other Pooja’s. The applicant correctly identified the time of when this Pooja is conducted which is in the early part of the years depending on the calendar.
Practicing Hinduism is a way of life. It is not based on temple attendance, how many times one prays or detailed knowledge of deities and their religious context. Being a Hindu is part of one’s life and the way one goes about with one’s daily duties and their devotion towards humanity and wellbeing of others.
On 6 March 2016 further country information was provided in support of the applicant’s case including various news reports.
On 12 March 2016 a post hearing submission was provided attaching various reports, including news reports of attacks against Hindu congregations and temples between 2012 and 2016. Further it is submitted:
Although the current Awami League government is labelled “secular” it too has been involved in the persecution of Hindus in Bangladesh.
The security forces are not in a position to defend people like the applicant, as being a mostly Muslim based force they neither have the religious intention to safeguard a member of the opposite faith nor someone that is not worth saving because by doing so may bring problems on themselves from members of the community. Impunity and corruption runs high in Bangladesh and offenders are rarely caught or brought to justice.
Attacks on Hindus have increased over the years and in recent months, the attacks have become more brutal.
The DFAT report dated 20 October 2014 is not current with regards to the recent escalation of violence against Hindus in Bangladesh. Not only temples and priests are targeted but everyday practicing Hindus and pilgrims. Attacks happen all over Bangladesh as Hindus reside in various places.
A six year absence from Bangladesh will not diminish the applicant’s risk of persecution. As a Hindu he will always be targeted no matter where he relocates to in Bangladesh. His persecution is not localised.
Findings and reasons
Country of reference
Attached to the Department file is a copy of a People’s Republic of Bangladesh Birth Certificate which corroborates the applicant’s claimed identify and date of birth. At the Protection visa interview with the Delegate and before the Tribunal the applicant spoke in the Bengali language which is the principle language spoken in Bangladesh. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s identity is as claimed. The Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes s.36 (2) (aa) of the Act.
The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country. In the absence of any information to the contrary the Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country, and therefore he is not excluded from Australia’s protection obligations under s36(3) of the Act.
During the hearing the Tribunal discussed with the applicant his background, education, family composition and past employment, as well as the reasons he left Bangladesh and his fears of returning.
Hindu from [Village 1]

The applicant described the situation in general for Hindu’s in his village. He said that the population of Hindu families has decreased from about 130 to 40 at present. When asked why his own family has remained in the village he said that his father was born there and considers it his home and believed that the situation would improve. However, he said [one sibling] was previously beaten and [a] business was destroyed and that [they have] now settled in [Country 3] as a result. Further, [another sibling] has also moved to [Country 3] to avoid the problems faced by Hindus.
When asked what other problems Hindus encounter in the village he said that the [specific] Temple in his village has been attacked before, approximately ten years ago and that during the last election there was fighting, threats and land and crops were taken from Hindus. He said that for the moment he believes the situation has calmed down a bit.
Hindu devotion
The applicant claims that his Hindu religion is important to him and that he was a member of the Puja committee at his local temple. The delegate did not accept he was, in part due to his level of attendance at Hindu temples in Australia.
The applicant stated at hearing that he is from a Hindu background and he has loved the ethos of Hinduism since childhood. Specifically he spoke about the non-violent philosophy of the religion and how it encompasses the total well-being of a person. He said that he honours his religion by praying at home every day and attends temple when he can. He explained that he has only just moved to [Town 1] and is not yet sure if there is a Hindu temple there. He also lived in [another regional town] where he sometimes joined other Hindus at a teacher’s home to pray and worship.
The applicant did not try to embellish his religious practice in Australia and having regard to the fact he has been residing in regional areas finds it plausible that the opportunities he has had to participate in temple life are less than what might be expected in larger centres or in his village in Bangladesh. The Tribunal finds it compelling that the applicant prays at home every day and considers this demonstrates a degree of devotion to his religion. Further, the Tribunal is persuaded by the submissions made on the applicant’s behalf regarding Hinduism being a way of life and not based on temple attendance, how many times one prays or detailed knowledge of deities and their religious context.
The delegate rejected the applicant’s claim that he was a member of the Puja committee at his local temple. At hearing the Tribunal explored his role at the temple in more detail and finds that the terminology used in his written claims is likely an overstatement of his role. However, based on his oral evidence the Tribunal is satisfied the applicant was a frequent attendee at his local temple and that consequently he was regularly called upon to help with the organisation of various ceremonies throughout the year. He described this work as putting up decorations, arranging tables and chairs for food and cleaning the temple.
Based on his oral evidence, the Tribunal is satisfied the applicant is a devoted Hindu and that he was a regular worker at his local temple in [Village 1].
Claimed attacks in 2009
The delegate did not accept the claimed attack during the [specific] Puja occurred as claimed in part due to perceived inconsistent evidence about the form the Puja took. Specifically, the applicant’s written claims indicate that a procession was interrupted whereas according to his oral evidence the attack occurred on a student gathering which was taking place beside the temple.
The applicant’s oral evidence before the Tribunal is consistent with that which he discussed with the delegate. He said that the students involved in the Puja were offering prayers and that he was standing behind them and beside the prayer area. He said that a group of about seven or eight people tried to stop the ceremony and that they protested and a physical fight broke out and they were beaten with sticks and rods. He said that the students fled and the attackers left.
The Tribunal asked the applicant when the [specific] Puja is usually held and he correctly indicated that it is in [the early part of] each year. The Tribunal questioned why the applicant’s written claims indicate the attack occurred toward the end of 2009. The applicant responded that it is possible the interpreter did not understand. Later in the hearing the applicant informed the Tribunal that the interpreter involved in the taking of his statement and completion of his application for protection was Rohinga and that it is possible there could have been some confusion about this and other dates. The Tribunal accepts this could account for certain inaccuracies and has not given any weight to the inconsistency of the applicant’s evidence as to when the attack at the temple occurred. The Tribunal also considers that this situation could have led to some misrepresentation of how the ceremony was conducted and has not placed any weight on the claim that a procession was interrupted. In all other respects the Tribunal considers the applicant has provided a consistent account of the claimed attack on the Puja ceremony at the temple and accepts that it occurred as claimed.
As to the applicant’s claims to have been abducted from his home and beaten by an angry mob later that night, the delegate did not accept this evidence, in part because it was felt his oral account of how he came to leave his house with this group of people was inconsistent with his written claims. Specifically, the applicants written claims indicate he was forcibly abducted by the mob whereas in his oral evidence to the delegate and the Tribunal the applicant stated that his father informed him a group of people were calling for him at the gate and that when he went to investigate, despite being scared, he left with the group thinking they just wanted to talk to him.
The applicant claims that he was taken to a [venue] some [short distance] from his house where he was kicked and punched and had a knife held to his [body]. He said he was crying out for help and that a person walking nearby shone a torch on them and his attackers ran away.
When asked if he identified his attackers the applicant said he recognised two people from his village – [Mr A and Mr B], who are JI members and were also present at the attack on the Puja at the temple. When asked why he thought he was attacked he said that his attackers said “we told you repeatedly to stop those ceremonies….. you had the audacity to fight us when we tried to stop you”.
Once again, having considered the applicant’s evidence, the Tribunal is of the view the applicant’s written claims overstate or embellish the manner in which this attack occurred. The applicant’s oral evidence to the delegate and the Tribunal is largely consistent in this respect and while the Tribunal has some reservations that the applicant would have left his premises with this group of people it is prepared to accept he did based on his subsequent actions which are discussed below. The Tribunal accepts the applicant was taken from his home to a [venue] and beaten and threatened with a knife at his [body] for reason of his involvement in the fight which occurred earlier at the temple during the Puja ceremony. The Tribunal is prepared to accept that certain of his attackers are JI members or supporters as claimed. The Tribunal finds this consistent with the country information referenced above which points to increasing intolerance of religious minorities and rising Islamist sentiment in Bangladesh.
Regarding his actions thereafter, the applicant has consistently claimed that he remained hidden during the night and left immediately for [Country 1] the following morning without going home. The applicant claims he lived and worked with his [Relative 1] on his land until 2013.
The Tribunal asked the applicant if during those four years he had ever returned to Bangladesh and he claims he did not. He said he kept in contact with his family by telephone. When asked if he went home to see his family before he departed Bangladesh for Australia the applicant stated he did not. He said that his father came to meet him at the Bangladesh/[Country 1] border before he left.
The Tribunal accepts the applicant was attacked as claimed and considers his actions following the attack support his claim. The Tribunal finds its compelling that the applicant never once returned to his home following the attack or before departing the country indefinitely. The Tribunal considers his actions demonstrate he was and is genuinely fearful his life is at risk from the JI members or supporters who attacked him in 2009.
Future harm
The Tribunal put it to the applicant at hearing that he has been absent from the country for several years and it could be assumed his attackers have lost interest in him during this time. The applicant claims that while he was living in [Country 1] he heard reports from his family that people were looking for him. When asked when he last heard this, the applicant hesitated and stated it was about two months before he left [Country 1]. The Tribunal did not find his response persuasive and considers it likely he has embellished this claim. The applicant added that [Mr A and Mr B] belong to an extremist group and that they will maintain their anger toward him because of his role in the fight at the temple. Further, he said his family has a history of being targeted because of their religion in the village referring to the fact his [sibling] was beaten and had [a] business destroyed.
The Tribunal does not accept that the people who attacked the applicant in 2009 have maintained an ongoing vigil to find him. The Tribunal does not find it plausible that they would do so for six years and the applicant’s responses at hearing were not in the Tribunal’s view persuasive. However, the Tribunal is prepared to accept that if the applicant were to return to his village, his presence could lead to the issues of the past resurfacing. Based on its earlier findings the Tribunal considers it likely the applicant would resume his visible role at the temple if he were to return to his village which would increase the chances of his past attackers noticing his return and once again targeting and physically mistreating him in a manner which would amount to serious harm. The Tribunal accepts that the applicant’s fears in this respect are genuine and well-founded and that his religion is the essential and significant reason for the persecution he fears. Further, the Tribunal also considers that the persecution which the applicant faces involves systematic and discriminatory conduct as required by s.91R(1)(c) of the Act, in that it is deliberate or intentional and involves selective harassment.
State Protection
At hearing the Tribunal put it to the applicant that the current government is not currently sympathetic to JI and that there are reports[1] of its leadership being arrested and subject to death sentences and that in the circumstances it is not evident that the police would deny him protection as claimed. The applicant stated that these reports relate to war criminals and that regardless, Bangladesh is a Muslim country and there is no protection for the Hindu community. He said the police are naturally inclined to support Muslims.
[1] DFAT Country Report, Bangladesh, 20 October 2014
The UK Home Office Report of February 2015[2] notes that the ability to access effective protection from the state of Bangladesh may be limited due to a poorly resourced, overburdened, inefficient police force and endemic corruption. Some members of the security forces reportedly commit serious abuses, including torture, with impunity and members of religious minorities, political opponents and women are often victims of these abuses. A recent report by Odhikar[3] details in part police using torture and ill-treatment of detainees on remand and extrajudicial killing. A further report by Landinfo, the Norwegian Country of Original Information Centre, dated 4 July 2013 states that the police force in Bangladesh is generally inefficient, and corruption is widespread at all levels. Police investigation of criminal offenses is often inadequate and the police can be reluctant to investigate persons affiliated with the ruling political party. Malicious accusations and fabricated cases occur in order to frame personal and political “enemies” and to achieve financial gain.[4]
[2] UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the government, February 2015
[3] Odhikar, Human Rights Monitoring Report, July 1 to 31 2015
[4] Landinfo – Norwegian Country of Origin Information Centre, Report on police and justice, 4 July 2014
The Tribunal acknowledges that the Bangladeshi authorities cannot guarantee absolute safety to each and every citizen at all times and that international standards require that the state takes reasonable measures to protect its citizens. The Tribunal also acknowledges DFATs advice that following the attacks on Hindus around the 2014 elections the government has taken some measures to provide greater protection for Hindus. However, the Tribunal considers various other reports by human rights organisations regarding the situation of Hindus in Bangladesh, support that the police have still not done enough to protect minority religious groups from violence and are often reluctant to investigate violent incidents. Further the Tribunal finds the submissions made by the applicant’s representative in the context of the religious demographic of Bangladesh persuasive. That is, that the police force is a Muslim dominated force with little religious intention to safeguard Hindus or to bring problems on themselves from the dominant Muslim community for doing so.
In view of the above the Tribunal is not satisfied that adequate state protection against harm from the applicants past attackers would be available to him on return to his village in Bangladesh.
Relocation
As the Tribunal accepts there is a real chance the applicant could suffer serious harm if he returns to his local area and that adequate state protection may not be available to him in his local area due to his religion, consideration has been given as to whether the applicant can safely and reasonably relocate to another area in Bangladesh in order to avoid such harm.
It is submitted that the harm the applicant fears is not localised and that as a Hindu he will be targeted no matter where he relocates to in Bangladesh. The Tribunal acknowledges that there have been increasing reports of attacks on Hindu temples and congregations in Bangladesh in recent years but as put to the applicant at hearing it appears most, but not all, of these attacks, have involved idol desecration and damage to temples rather than attacks on Hindu worshippers. On this basis, the Tribunal is not satisfied the mere fact the applicant is a Hindu will give rise to there being a real chance he will suffer serious harm in a different location in Bangladesh.
However, as noted above the Tribunal accepts the applicant was a frequent attendee at his local temple and actively involved in the preparation and organisation of the numerous Hindu ceremonies which take place throughout the year. The Tribunal is of the view that the applicant would resume this level of devotion wherever he lives in Bangladesh and that this would raise his profile within the Hindu community and thereby the chance of him being harmed in a targeted attack.
Further the Tribunal notes DFAT’s advice which indicates that credible international and local sources confirm that violence against Hindus has increased since the 2008 election along with an increase of Islamist sentiment in recent years. As noted in the applicant’s submissions, and confirmed by independent country information referenced above, the Hindu population in Bangladesh is ever decreasing and while there may be numerous reasons for this, the Tribunal believes that religious persecution cannot be excluded as a contributing factor to this trend.
In these circumstances, the Tribunal considers it prudent to adopt a cautious approach in making predictions as to the relative safety of a person in the applicant’s situation. The Tribunal is not satisfied that the risk is remote or far-fetched of the applicant being subjected to physical mistreatment that would constitute serious harm on return to Bangladesh for reason of his religion.
As already indicated the Tribunal is not satisfied that the Bangladesh security forces will provide adequate protection to the applicant if he is faced with serious harm in the course of his Hindu practice. For these reasons, and paying particular attention to the applicant’s individual circumstances, the Tribunal is not satisfied he could safely relocate to another area in Bangladesh in order to avoid the risk of serious harm in his local village.
For the above reasons the Tribunal finds that the applicant has a well-founded fear of persecution in Bangladesh for reason of his religion. 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) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36 (2) (a) of the Migration Act.
Tania Flood
Member

[2016] AATA 3661

4 April 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction