1420976 (Refugee)

[2016] AATA 4661

1420976 (Refugee) [2016] AATA 4661 (8 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420976

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:8 November 2016

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 08 NOVEMBER 2016 AT 1:35PM

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 man in his [age] from Dinajpur District, Bangladesh. He claims to be a citizen of Bangladesh.

2. The applicant first came to Australia in June 2005 as the holder of a [certain] visa. His most recent arrival in Australia was [in] March 2009, as the holder of a [different] visa. [In] June 2009, the applicant became an unlawful non-citizen after his Bridging visa expired. 

3. The applicant applied for a Protection (Class XA) visa [in] February 2014. He attended an interview with the delegate of the Minister for Immigration [in] December 2014.

4. [In] December 2014, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

5. This is an application for review of that decision.

6. The applicant appeared before the Tribunal to give evidence and present arguments on 21 September 2016. The hearing was conducted in English, in which the applicant is fluent.  The applicant was represented in relation to the review by his registered migration agent, who attended the hearing via telephone from Sydney.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is set out in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

9. The applicant is a [age]old man from Dinajpur District, Bangladesh. Although he appears to have indicated that he was from the village of [name], at the Tribunal hearing he clarified that his family live in [City 1], in the sub-district of Dinajpur Sadar. (He explained that the street name was [name], which is also a village in the local area.) He is an ethnic Bengali and a Hindu, whose languages are Bengali, English and Hindi (the last of these is spoken only). The applicant lived in his village until June 2005, when he came to Australia. 

10. The applicant attended schools in [City 1], most recently completing his [education level] at [a] College, before moving to Australia at the age of [age] to continue his studies at [a University].

11. The applicant is unmarried. His parents live in [City 1], and are prominent in the local community. His father has a well-established [professional] practice in [City 1], and his [Family Member 1] is involved in a Hindu cultural organisation. His [Sibling 1] has just completed [tertiary] studies in Dhaka, and is now working as an intern.

12. The applicant first entered Australia [in] June 2005[1], and returned to Bangladesh three times, in 2006, 2007 and 2008, to visit his family. At the Tribunal hearing, he confirmed that he had remained in Australia without a visa for more than four years after the expiry of his last visa, before lodging his Protection visa application. The applicant indicated on his protection visa application form that he worked in [certain] restaurants from July 2009 until January 2014.

    [1] The applicant provided this information and other details of his travel in his Protection visa application form.

    Claims

13. The applicant claims to fear persecution or significant harm from Muslims, particularly Islamic extremists, because he is a member of the Hindu minority. He claims that he is additionally vulnerable because of his family’s profile in the community and his [Family Member 1]’s work with a Hindu cultural organisation. According to his written claims, the applicant also claims that Hindus’ perceived support for the ruling Awami League may further motivate the pro-Islamic opposition Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami (JI) to pursue him.

14. At the Tribunal hearing, the applicant also claimed that persons returning to Bangladesh from Western countries could also be at risk of being targeted by pro-Islamic groups.

    Evidence

15. The evidence before the Tribunal includes the following relevant material: -

    §The applicant’s protection visa application form receive [in] February 2014, which includes brief reasons for his claiming protection

    §A more detailed statement of claims dated [in] October 2014

    §Photocopy of the applicant’s Bangladeshi passport and an Australian student union card

    §A Protection visa interview (‘Department interview’) was held [in] December 2014, by telephone; an audio recording of the interview is on the Department file

    §The Protection visa decision record (‘delegate’s decision’) [in] December 2014

    §Review application form, received [in] December 2014

    §The applicant attended a Tribunal hearing on 21 September 2016.

    §The Tribunal received submissions on 18 September 2016, and, post-hearing on 26 September 2016 and 1 November 2016. These mainly contained country information (excerpts from reports, references and sample media articles) on the treatment of Hindus in Bangladesh. These were drawn above all from Eibela.com, a Bengali language on-line news service (also with an English language page). Of particular note are the following:

    -A report entitled: ‘Persecution on minorities in Bangladesh at a glance: July-2016’, which the applicant drew on at the Tribunal hearing

    -Various articles reporting on attacks on Hindus by ruling Awami League (AL) activists; two of these focus on anti-Hindu violence in the applicant’s district of Dinajpur

    -An article from the Hindustan Times, dated 31 October 2016, on the vandalisation of at least 15 Hindu temples and hundreds of homes in Chittagong, in response to a Facebook post allegedly demeaning a mosque in Mecca

    Country of reference

16. The applicant claims to be a Bangladeshi national. A copy of his Bangladeshi passport appears on the Department file. Also, the applicant speaks the national language, Bengali (Bangla), and is thoroughly familiar with that country. The Tribunal is satisfied that Bangladesh is the applicant’s country of reference for the purpose of assessing his claims to be a refugee, and that it is also his receiving country for the purpose of assessing his eligibility for complementary protection.

    Credibility

17. The Tribunal formed a generally favourable view of the applicant’s credibility at the hearing, as he provided reasonably detailed and frank evidence. Nonetheless, the Tribunal has some concerns that he exaggerated or misconstrued some of his evidence in order to bolster his protection claims. This mainly occurred in the context of the applicant explaining that, while his family enjoys success and prominence in their local area, the rise in anti-Hindu sentiment and violence in Bangladesh has made them feel unsafe.

18. During the course of the Tribunal hearing, the applicant intimated – without resiling from or downplaying his protection claims – that his parents and [Sibling 1] have standing in the community, and his return to Bangladesh without having completed his studies in Australia would be difficult. He couched this in terms of the problems he would face in trying to find work or set up a business (in part because his membership of the Hindu minority), but the Tribunal sensed that he was also preoccupied by the potential disappointment of his family.

19. The significant delay between the expiry of the applicant’s last Australian visa and his lodgement of a protection visa application – more than four years – raises questions about his need for protection, and hence the credibility of claims to fear persecution or significant harm if he returns to Bangladesh. The applicant said at the hearing that he did not know about applying for protection in Australia, and was afraid that if he approached the Department he would face deportation. It was only in February 2014 that some friends encouraged him to resolve his migration status. The Tribunal views this explanation with scepticism. The applicant was enrolled in tertiary studies and speaks fluent English. There are no apparent reasons why he could not make enquiries and inform himself of his options if, as claimed, he requires protection.

20. The applicant and his representative suggested that another reason the applicant did not seek protection in Australia earlier was because the situation for Hindus had not yet deteriorated to the point that it has now. Country information provides some support for this. While Hindus have been subject to attacks and pressure in Bangladesh for many years, the ‘Islamic mobilisation’ in recent years (particularly after the 2013 International Criminal Tribunal verdict against Jamaat-e-Islami leader Sayadee) has seen an increase in anti-Hindu violence. Nonetheless, the Tribunal views with scepticism the suggestion that it was the deterioration in Bangladesh’s treatment of the Hindu minority that prompted him to seek protection (or that explains his failure to do so earlier). For instance, there is no persuasive evidence that he was looking for an opportunity to return there permanently, such as by exploring safe options. Even so, country information about conditions for Hindus merits a close examination of the applicant’s and his family’s experiences there, and his prospects on return.  

    Hindu – Family background and profile

21. The Tribunal accepts that the applicant is a Hindu, based on his family name and his evident familiarity with the faith and its practices. Dinajpur is one of the leading Hindu areas in Bangladesh, with the minority accounting for some 20 per cent of the district’s population, well above the national average of about 9 per cent.

22. The applicant claims that he and family members participated in Hindu festivities, which sometimes involved playing music publicly and worship idols. The Tribunal accepts that he was involved in related religious, social and community activities. He said that, at a private level, he continues to observe his Hindu faith in Australia by attending a gurdwara in [location] (this appears to be the [name], a Sikh temple).

23. The applicant gave a detailed, credible account of his family’s background, and the Tribunal accepts his evidence about this. In summary: -

    §  His father has a [professional] practice, with [associated rooms] in the family home. Together with a friend, he established a local [facility]. The applicant’s father is part-owner of the [facility], and its former [officeholder]. He occasionally [works] there, and also assists on a voluntary basis at a Hindu ashram. The applicant said that his father’s [clients] are both Hindu and Muslim.

    §  The applicant’s [Family Member 1] is [age], and is active in the Hindu cultural organisation [Society 1], which has a local branch near the family’s home. The applicant indicated that she has made some [audio] recordings, and used to [participate] all over Bangladesh at festivals and cultural events, as well as on the local [name] Radio.

    §  The applicant’s [Sibling 1] studied [tertiary course] at a [certain] college in Dhaka and returns to [City 1] to visit her parents during school breaks. The applicant told the Tribunal that [Sibling 1] has recently graduated, and is now doing an internship. [Sibling’s] plan is to work in the family-owned [business], although the applicant added that the family is worried about the security situation for Hindus and he would like [Sibling 1] to join him in Australia. 

    Mistreatment as Hindus – the applicant’s and his family’s experiences

24. The applicant claims to have been subject to ongoing pressure, discrimination and harassment from Hindus, and that this has become more marked and threatening in recent years.

25. The applicant’s claims rely in large part on general country information about the treatment of Hindus in Bangladesh. Some examples serve to convey the flavour of this: ‘The Hindu minority is often targeted for persecution’ and ‘Minorities are being tortured, raped, robbed and killed, and their properties stolen, especially Hindus’. In a similar vein, the applicant referred to bomb attacks against the [Society 1] cultural program, without specifying the location of these attacks and whether there was any direct link to his [Family Member 1]; he also referred to his family being easy targets. The Tribunal had some difficulty in switching the applicant’s focus from these broad statements to the particular concerns and experiences that he and his family have had.

26. The Tribunal noted that the applicant had provided a large amount of country information, and asked whether there were reports of any incidents in [City 1] itself, or that directly involved his family. He replied that his town is small, and he doubted that any incidents would make it into the national press.

27. During the course of his application and this review, the applicant gave some examples of when he and family members had been targeted or made feel unsafe, as Hindus and potentially also due to their profile as a well-off family involved in business, cultural affairs and other activities. These claims are, in summary:

    §  During Hindu festivities in his local area, local Muslims used to ask for money; they would pressure Hindus to turn down the music; they harassed and verbally abused Hindus (particularly at night); and they sometimes broke the idols that Hindus had prepared for worship, or vandalised the temple. The police would not intervene. He described a situation where local Muslims could more or less act with impunity, leaving Hindus feeling vulnerable. The applicant said that the situation was not so bad in the city, where he lived, but in the villages, Muslims would close down festivities and act more aggressively.

    §  The applicant said that Hindu elders tried to mediate sectarian tensions; there had not been any more serious incidents in his locality.

    §  The applicant said that he read in the news about other incidents, like an occasion when Muslims vandalised a temple and threw pieces of beef into it, to defile it. He did not identify any direct link between these incidents and his own experiences. But he suggested that reports of these kinds of incidents heightened his and his family’s feelings of insecurity.

    §  The applicant said that his father dealt with both Hindu and Muslim [clients] in his [business]; it was a ‘bit scary’ when he had to [visit homes] (implying that there were general security concerns, and always the risk that his father might be singled out as a Hindu).

    §  The applicant claimed that his [Family Member 1], as part of [Society 1], used to [participate] all over the country, including at special events, weddings and other functions, as well as [for] radio. He told the Tribunal that she had complained about being hassled from time to time, and she has wound back or stopped some of her activities. The applicant said that he and [Sibling 1] suspected that his [Family Member 1] had had other problems, but avoided talking about them. He mentioned that Islamic groups have attacked [Society 1] programs in the past (but not the specific branch where his [Family Member 1] works).

    §  The applicant said that [Sibling 1] lives in Dhaka, which is some seven or eight hours from [City 1] by bus, or an hour’s flight. [Sibling 1] has witnessed many incidents of Muslim violence and harassment, like vandalism. He said that during one of the festivals, some Muslim men had followed and teased [Sibling 1].

28. The applicant claims that he and his family all support the Awami League (AL), and he told the Tribunal that he has a voter ID card. He said that, during elections, BNP and JI cadres harass Hindus, trying to prevent them from going to vote (as they know they will tend to support the AL). Asked whether the AL responded to complaints about such practices, he said that the BNP and JI embark on harassment and torture against selected targets in a fairly random (in other words, unpredictable) manner. He implied that neither the police nor the AL were in a position to respond effectively to attacks against the Hindu minority.

29. The Tribunal notes that the applicant has provided very little by way of specifics or supporting evidence to corroborate his claims. Moreover, it is difficult to distinguish between his own experiences, on the one hand, and those of others, such as his family members or the Hindu minority in general. (The Tribunal recognises, however, that his relatives’ experiences might have at least a psychological impact on the applicant’s own wellbeing.) Relevantly, the Tribunal has before it a large amount of country information about the situation for Hindus in Bangladesh, mainly recording individual instances of harassment or violence, and the rising assertiveness of Islamic extremists. This material broadly supports the applicant’s account of his and his family’s experiences.

30. The Tribunal accepts that local Muslims have from time to time harassed and discriminated against the applicant, mainly verbally but sometimes in a more intimidating manner; that Muslims have sometimes intimidated local Hindus (pressing them to tone down public displays of worship and celebrations) and damaged their property, making him feel further discriminated; and that he has felt less secure when they have harassed his family members. The Tribunal does not accept that these instances of discrimination or harassment prevented the applicant from practising his Hindu faith, or engaging in his day-to-day activities, or that they involved serious or significant harm (including in their psychological impact).

31. In relation to the applicant’s claims that his [Family Member 1] stopped or reduced her involvement in [Society 1] cultural events, and that Muslim men pestered [Sibling 1] during festivals, the Tribunal is not satisfied on the limited available evidence that these are examples of anti-Hindu actions that are directly relatable to the applicant’s own circumstances (as his [Family Member 1]’s age, [Sibling 1]’s gender or other factors might have played a role).

32. The Tribunal also accepts that the applicant and the Hindu community have relied mainly on local elders to resolve any problems, as they have little faith in the police intervening.

33. The Tribunal accepts that the applicant and his family support, and have voted for, the AL. Country information indicates that the opposition BNP and JI exert some pressure on Hindus during election campaigns, as Hindus are perceived to vote almost as a bloc in favour of the AL. The Tribunal accepts that the applicant’s family has sensed this tension, but it is not satisfied that they have been subject to any harm amounting to persecution or significant harm.

34. Although the Tribunal accepts that the applicant (and his family) has experienced some degree of discrimination and harassment, as noted above, the overall picture that emerges is that the applicant and his family enjoys considerable standing and respect in their community as a whole. His father runs a successful [professiona] practice and has related business interests, his [Family Member 1] has been involved in cultural pursuits, with no examples of actual harm or threats, and [Sibling 1] has completed tertiary studies and is now doing a [relevant] internship, with a view to returning to [City 1] to eventually take over [the] father’s [professional] practice. Furthermore, the applicant’s evidence that his family is well-established in [City 1] and would be unlikely to move (an issue that arose in the context of exploring with him whether internal relocation might be a safe and reasonable option for him, if he feels unsafe in [City 1]), further indicates that they are not subject to persecutory or significant harm, or the threat thereof.

1. The applicant initially left Bangladesh more than eleven years ago, when he was about [age] and embarking on tertiary studies in Australia. His life experience in Bangladesh at that time was therefore limited, and there is little direct evidence about Muslims targeting him as a Hindu or for any associated reason (such as his family membership).

2. In sum, the Tribunal accepts that the applicant experienced some discrimination and harassment at the hands of local Muslims, but it does not accept that – individually or cumulatively – this amounted to persecution or significant harm. Furthermore, the Tribunal is not satisfied that the applicant left Bangladesh in response to any immediate fear of such harm. The Tribunal finds strong support for this in the applicant’s evidence that he did not seek protection on his arrival in Australia, or when his last visa expired, because the situation was not so dire at that point. It does, however, accept that the applicant and his family have concerns more generally about the future prospects for Hindus in Bangladesh, which may have contributed to his decision to study in Australia, perhaps with a view to seeking permanent residency.

   Assessment – Refugee Criterion

3. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct, and relevant country information, whether he has a well-founded fear of Convention-related persecution on his return to Bangladesh, now or in the reasonable foreseeable future.

4. The Tribunal found it difficult to engage the applicant on his future plans if he returns to Bangladesh. This is unsurprising given that he has been based in Australia for more than eleven years, and that his experiences in Australia (with disrupted studies and then working in restaurants) may have put some distance between him and his well-established family in [City 1]. At the hearing, the applicant said somewhat uncertainly that he might have to open up his own business, like a restaurant. He saw no prospects of working in his father’s practice. In any event, the Tribunal is satisfied that the applicant’s place of return in Bangladesh, at least in the short term, would be [City 1], where his immediate family lives.

5. Essentially, the applicant claims that he would face a real chance of persecution as a Hindu, in light of country information about rising Islamic extremism and the increasing incidents of anti-Hindu violence.

6. For the reasons stated above, the Tribunal accepts that the applicant experienced some discrimination and harassment at the hands of local Muslims, but it does not accept that these incidents involved serious harm. The applicant claimed that the security outlook for Hindus has deteriorated in [City 1] (and Bangladesh more generally), particularly given the rise in Islamic extremist activity and, he implied, intensified communal tensions and declining law and order. This meant an increase in ‘random’ attacks (ie. the risk that ordinary citizens can get caught up in terrorist or criminal acts) and the ever-present risk that small disagreements can escalate into communal violence.

7. The applicant forwarded several articles under the heading ‘Recent Attacks against Hindus in Dinajpur, Bangladesh’. These cover, in summary:

   §  In early December 2015, three bombs in a Hindu temple in Kaharol sub-district of Dinajpur injured ten people. According to the article, the temple priest had received threats that he should not organise any religious activities. According to Google Maps, Kantaji (Kantajeu) Temple is almost [distance] of [City 1].

   §  Another article refers to a second attack on another Hindu temple less than a week later, when attackers threw home-made bombs and then opened fire outside a religious conference. Local residents caught at least two suspects, suspected of being Jamaat-ul Mujahideen Bangladesh (JMB) members), to the police.

   §  The attacks led to a protest outside the National Press Club in Dhaka, and criticism that the authorities were not doing enough to protect religious minorities in Dinajpur.

8. Apart from the incidents mentioned in the articles that the applicant forwarded, [City 1] has witnessed other incidents in which Islamic extremists have targeted Hindu interests, and where anti-Hindu sentiment has flared up, particularly during periods of political tension and in the lead-up to national elections. To put this in some context, however, country information indicates that Dinajpur District has a population of more than 2.6 million, with Hindus comprising more than 20 per cent.[2]

   [2] Hello Bangladesh Dinajpur District Information (undated) According to the 2011 census, the population of the district was over 2.9 million.

9. The Tribunal has surveyed recent country information, including that in the applicant’s submissions and other material that it drew on at the hearing, to inform its assessment of whether the applicant, in his (and his family’s) particular circumstances, faces a real chance of persecutory harm, as a Hindu.

10. Recent reports from the International Crisis Group and the US Department of State provide a snapshot of the overall situation facing Hindus in Bangladesh. In April 2016, the International Crisis Group wrote[3]:

    A leading human rights group described attacks on Hindus as “persistent background noise”, referring to their continuation at a lower intensity even during periods of general calm.[4] However, Hindus’ safety is particularly hostage to broader political developments, their communities bearing the brunt of Islamist mobilisation. After the 2013 ICT verdict against Sayadee, for example, Islamist activists destroyed 280 Hindu homes, 200 Hindu-run businesses and 500 Hindu temples, injuring around 190 people. Attacks on temples and desecration and theft of Hindu idols now occur regularly. Seizure of Hindu-owned homes by local elites, reportedly including AL and BNP politicians, is also common.[5] The systematic targeting of women, especially rape, regardless of the perpetrators’ political leanings, is common to attacks on minority communities.[6] While many are arrested, largely due to media coverage, most are released, such as the alleged mastermind of the 2012 attacks on the Buddhist community in Cox’s Bazar.[7]

    [3] International Crisis Group: Political Conflict, Extremism and Criminal Justice in Bangladesh Asia Report N°277 | 11 April 2016

    [4] “Rights of Religious Minorities”, Ain o Salish Kendra (human rights organisation), 2008.

    [5] “Violence against Hindus: 2013 overview”, Ain o Shalish Kendra, 8 January 2014. “An inquiry

    [6] “Charges pressed against 10 for Monirampur gang rape”, The New Age, 9 August 2014.

    [7] “Ramu attacks: Prime suspect enjoying chairmanship”, Dhaka Tribune, 29 September 2014.

11. The Department of Foreign Affairs and Trade’s recent Country Information Report - Bangladesh[8] provides a succinct and, in the Tribunal’s view, balanced summary of the information concerning the situation for Hindus in Bangladesh. It reads (with the Tribunal’s highlighting of mentions of the applicant’s district of Dinajpur):

    3.20 An estimated 15 million Hindus live in Bangladesh, making the Hindu community Bangladesh’s largest religious minority group. Hindus are not physically distinguishable from the majority Muslim population. The vast majority are ethnically Bengali and speak the Bengali language.

    3.21 Hindus have made a significant contribution to Bangladeshi public life, including in politics, academia and the arts. While they have traditionally supported the AL and left-leaning parties such as the Communist Party of Bangladesh, all major political parties have fielded Hindu candidates. The current AL Cabinet has four Hindu members.

    3.22 No legal or other restrictions prevent Hindus from freely practising their faith or participating in broader society. However, Hindus – like indigenous people in the CHT – have suffered disproportionately from land appropriation, including of land abandoned by Hindus who have fled to India since 1947. This appropriation has been linked to physical attacks on Hindu communities, although these attacks are also a product of Hindus’ perceived support for the AL and resentment over the testimony of Hindu witnesses who have appeared in International Crimes Tribunal (ICT) proceedings. In the lead-up to and following the 2014 elections, JI activists killed more than two dozen Hindus and destroyed hundreds of Hindu homes and businesses, displacing thousands. Local human rights organisations have told DFAT this violence has been most prevalent in northwest Bangladesh, including Jessore, Dinajpur and Rangpur.

    3.23 The Vested Properties Return (Amendment) Act (2011) allows Hindus to apply for the return of, or compensation for, property seized under the Enemy Property Act (1965). However, Hindu communities and NGOs have complained that the Act is too narrowly defined and the application process cumbersome and convoluted, and that only a small percentage of eligible properties have been returned.

    3.24 Legal institutions have provided a pathway for members of the Hindu community to enforce their rights through public interest proceedings. In the aftermath of the 2014 elections, the High Court held that law enforcement agencies had ‘seriously failed’ to protect members of vulnerable groups, including Hindus. The government responded by providing assistance to victims and helping communities restore religious and private property damaged in the violence. On 6 April 2015, the High Court ordered the Government to explain the legality of police actions in evicting 14 Hindu families in Taltoli Upazila, Barguna District, on 12 March 2015.

    3.25 Islamic militants have periodically attacked members of the Hindu community and Hindu religious sites. The frequency and severity of these attacks, generally involving machete attacks, has increased considerably in recent times. Militants conducted IED attacks at Hindu temples in Dinajpur on 5 and 10 December 2015, injuring over 10 people. ISIL claimed responsibility for the beheading of a Hindu businessman in Gobindganj, Gaibandha District, on 8 February 2016; an attack at a Hindu temple in Deviganj, Panchgarh District, on 21 February 2016, in which militants beheaded a priest and injured two worshippers; the killing of a Hindu tailor in Tangail, Tangail district, on 30 April 2016 (ISIL reportedly claimed the tailor had ‘blasphemed the Prophet Mohamed’); the killing of a Hindu shopkeeper in Gobindoganj on 25 May 2016, the killing of a Hindu priest in Jhenaidah, southwest Bangladesh, on 7 June 2016; and the killing of a Hindu monastery worker in Pabna, western Bangladesh, on 10 June 2016.

    3.26 DFAT assesses that Hindus are subjected to moderate levels of societal violence, especially during periods of heightened political tension such as national elections. However, the risks of sporadic attacks has increased since the previous DFAT CIR published in October 2014. Those Hindus with an historical claim to land are also subjected to a moderate level of official discrimination because of the Government’s involvement in land appropriations.

    [8] DFAT Country Information Report Bangladesh, 5 July 2016

12. The Tribunal notes that, although Dinajpur has more incidents of anti-Hindu violence than other parts of Bangladesh, and although it is affected by the general rise in Islamic militancy, the Hindu minority there is sizeable and for the main part lives in harmony with the broader community. The applicant’s account of his and his family’s lives tends to support this, as does his comment that the urban area where they live is generally peaceful. The Tribunal is not satisfied that the applicant’s circumstances on his return – having to stay with his family, at least in the short term, to look for work and/or to contemplate setting up a business – puts him at any additional risk of being targeted by Islamic militants, or Muslims in general, for reason of his Hindu faith.

13. Having regard to the applicant’s circumstances, and relevant country information, the Tribunal finds that he may face some degree of discrimination and harassment as a Hindu, but it is not satisfied that such treatment, individually or cumulatively, involves serious harm amounting to persecution. The Tribunal is not satisfied that he faces a real chance of being subject to any more serious harm, such as instances of physical violence or sustained targeting.  

14. The applicant has claimed, during his original application and the review, that he faces an elevated risk because of various factors, such as his membership of a well-known Hindu family; or a well-known family who promotes Hindu culture; or as a Hindu who is perceived to be pro-Awami League. In the Tribunal’s view, each of these has some foundation in fact. It accepts that the applicant is from a locally well-known Hindu family; that his [Family Member 1] was involved in cultural activities (although the Tribunal is not satisfied that this is directly relevant to perceptions of the applicant, or his prospects on return to Bangladesh); and that the applicant’s family, like many Hindus, favours the AL as a political party. In relation to political tensions, the applicant claimed that the opposition BNP and JI exert pressure on Hindus, who are perceived to support the AL, and that there is always a risk of such tensions flaring up into actual violence. The Tribunal is not satisfied that this has occurred to the applicant or any family members in the past, and it finds that the risk of such violence does not amount to a real chance. In sum, the Tribunal has taken into account all of these additional factors in assessing the applicant’s prospects if he returns to Bangladesh. In its view, the applicant  does not face a real chance of persecution as a Hindu, even when taking into account these factors, individually or together.

15. At the Tribunal hearing, the applicant and his representative contended that growing Islamic fundamentalism and attacks on Hindus could put the applicant at risk as a practicing Hindu. The Tribunal has already taken into account that the applicant is a practising Hindu and that, irrespective of how devout he is in his personal practice, he would likely be involved in community festivals and events that would identify him as such. For the reasons stated above, the Tribunal is not satisfied that he faces a real chance of persecution, including as a Hindu or as a ‘practising Hindu’.

16. Also against the backdrop of rising Islamic fundamentalism, the applicant claimed at the hearing that anyone who returns from a Western country is at risk of being targeted and persecuted by Islamists. His representative added that, with the growing influence of Islamic State, the applicant could potentially be ‘exposed’ to militants (by implication, attract their adverse attention and potential serious harm). The Tribunal formed the impression that the applicant, who already comes from a well-educated, urbane background, has adapted well to life in Australia and could well be perceived as ‘Westernised’ if he were to return to [City 1]. However, many Bangladeshis spend prolonged periods abroad – in Western countries, as well as the Middle East, India and South-East Asia. As noted at the hearing, there is no persuasive information before the Tribunal to suggest that Islamic fundamentalists or society at large target Bangladeshis (or Hindu Bangladeshis) returning from abroad, or in particular from Western countries. The Tribunal is not satisfied on the available evidence that the applicant faces a real chance of being targeted, and seriously harmed, for any reasons associated with his stay in Australia.   

17. In sum, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his Hindu faith (religion); or any associated Convention ground, such as his membership of a particular social group (such as the Hindu minority, or his well-known family), his imputed political opinion as an AL supporter (because of his Hindu background); as a person returning to Bangladesh from a Western country (or his membership of any putative particular social group)l or any other Convention reason.

18. Accordingly, the applicant finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Bangladesh, and does not satisfy the criterion in s.36(2)(a).

    Assessment – Complementary Protection

19. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

20. The Tribunal refers to the findings of fact above, and the country information that relates to the applicant’s claims that he would be at risk of harm – including potentially ‘significant harm’ – as a result of his Hindu faith, his family background, his political opinion (imputed and/or actual) and his status as a person returning to Bangladesh after many years abroad, in a Western country.

21. Having regard to the applicant’s circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant - as a Hindu who is from a prominent family, or a person who is perceived to support the AL, or a person returning from a Western country, or for any other reason - will face a real risk of being arbitrarily deprived of his life, that the death penalty would 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.

22. The applicant alluded to the more general rise in Islamic fundamentalism in Bangladesh, and the broader security environment and political instability. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns about general conditions in the country, including the rise of Islamic fundamentalism, security concerns and political instability, are faced by the population generally and not by him personally. According, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Bangladesh as a result of the general security situation.

23. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Overall conclusion

24. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    James Silva
    Member

    
    

    RELEVANT LAW

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

    Refugee criterion

    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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

    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’).

    ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

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

    Section 499 Ministerial Direction

    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.

    
    

into causes and consequences of deprivation of Hindu minorities in Bangladesh through the Vested Property Act: framework for a realistic solution”, in Religion – A Tool for Discrimination in South Asia, South Asians for Human Rights (SAHR), 2010. “Tuku’s kin quizzed over attack on Hindus”, BDnews24.com, 13 November 2013; “Judicial probe sought into land grabbing by Thakurgaon MP”, The New Age, 9 January 2016.