1503204 (Refugee)

[2017] AATA 277

1503204 (Refugee) [2017] AATA 277 (10 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503204

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Frances Simmons

DATE:10 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 10 February 2017 at 6:00pm

CATCHWORDS

Refugee – Protection visa – Bangladesh – Political opinion – Online activist – Bloggers – Imputed religious views – Atheists – Shahbag movement – Punishment of independence war criminals – Islamic extremists – Extra-judicial killings – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R(1), 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES

MIMA V RAJALINGAM (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Kopalapillai v MIMA (1998) 86 FCR 547

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The primary applicant arrived in Australia [in] May 2009 travelling on a Bangladeshi passport issued in his own name. The second named applicant, who is the wife of the first named applicant, arrived in Australia [in] August 2010. The [infant] applicants were born in Australia. Before they arrived in Australia, the adult applicants lived in Dhaka in Bangladesh.

2. The applicants are citizens of Bangladesh. The applicants applied for the protection visas [in] June 2014.  The primary applicant claimed he was an atheist who administered a website in Bangladesh that promoted secularism and supported the prosecution and punishment of war criminals. Later, when he was in Australia, he claims he supported the Shahbag movement. The 'Shahbag movement' refers to the violent anti-government protests that grew out of online activism and erupted in Dhaka from February 2013 following war crimes verdicts handed down to members of the Jamaat-e-Islami party.[1]The primary applicant did not attend the interview that was scheduled with the delegate. The delegate refused to grant the visas [in] February 2015.

   [1] Freedom House 2013, Freedom on the Net 2013 - Bangladesh, 3 October 2013 < >

3. The applicants appeared before the Tribunal on 12 October 2016, 11 November 2016 and 2 December 2016 to give evidence and present arguments. The applicant expanded upon his claims to have promoted secularism and punishment for those responsible for war crimes online. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, although sometimes the applicant spoke in English. The Tribunal also took evidence via telephone from [Witness A] and [Witness B] both of whom are resident in [Country 1] where they are currently seeking asylum. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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

8. 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’).

   Section 499 Ministerial Direction

9. 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.

   Member of the same family unit

10. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and dependent children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the brief written claims that the applicant presented to the Department he claimed that he would be persecuted in Bangladesh because of his political opinion and because he is an atheist. When he was in Bangladesh he created a website to engage in discussion to promote international criminal tribunal to seek justice for those killed during the Bangladesh Independence war ([Website 1]). He claimed that through his activities he connected with like-minded people and encouraged them to engage in constructive discussion to establish a secular state in Bangladesh. Two people who worked on the website faced harm. The applicant claims that, after he arrived in Australia, he also supported the Shahbag movement through his online activities. He fears the Islamic extremists will target him because of his religious opinion and his activities related to the Shahbag movement. He fears he cannot obtain State protection and wherever he is in Bangladesh he will face harm. 

12. Although the applicant stated he would provide a detailed statement, he did not. He did, however, submitted the following documents: an uncertified copy of a Warrant of Arrest in the name of the applicant; an uncertified copy of a document purporting to be a ‘Short description of the case’ against the applicant; an uncertified copy of a Charge-Sheet naming the applicant and [number] others; an copy of a document purporting to be a warrant of remand naming the applicant; a copy of a document purporting to be a Court order; a copy of a document purporting to be a FIR.

13. The applicant was invited to, but did not attend a protection visa interview scheduled for [February] 2015. On this date the applicant’s migration agent advised that the applicant had made contact and stated that he was ill and unable to attend the interview. The applicant’s migration agent requested that the interview be rescheduled. The applicant was provided with time to provide documentation supporting his claim that he was unfit to attend on the scheduled day due to illness. [Later in] February 2015 the applicant’s representative submitted three doctors’ certificate. One of the certificates indicated the applicant was ill between [date] January 2015 and [date] February 2015, while another stated he visited a doctor on [date] February 2015 for his medical certificate. A third certificate indicated his son was ill between [two dates in] February 2015.

14. The delegate found that neither of the two certicates in the applicant’s name supported his claim to be too ill to attend the scheduled protection visa interview. The delegate did not reschedule  the interview  and refused to grant the applicant a protection visa

    Application for review

    Additional evidence and documentation provided to the Tribunal by the applicant

15. The applicant obtained new representation before the Tribunal. Before the first hearing, the applicant’s representatives submitted a statement by the applicant dated 10 October 2016 (the first statement), a report entitled ‘Atheist Law Student Hacked to Death in Bangladesh’ and internet documents titled ‘who is behind the Bangladesh killings’ and ‘Attacks by Islamic extremists in Bangladesh’.  After the first hearing, on 7 November 2016 the Tribunal received a further statement from the applicant (the second statement). This lengthy statement contained hyperlinks to photographs, news reports, and links to two youtube videos, as well as drop box account with photographs of the applicant. Some of these links were accessible to the Tribunal but others were not. The applicant subsequently provided further photographic evidence to the Tribunal. His representative also provided letters from two academics, one of whom is based in Bangladesh, the other at [an Australian] University, concerning the risks facing atheists and secular bloggers in Bangladesh.

16. The applicant has expanded on his claims in oral and written testimony to the Tribunal. His evidence is briefly summarised below and, where relevant, it is discussed further below in the Assessment of Claims and Evidence.

17. According to his written and oral testimony to the Tribunal, the applicant was born in [year] into a conservative Muslim family. His father was a fanatical Muslim who spent most of his time working in [the Middle East] and visited Bangladesh once or twice a year. When he visited the applicant would be a captive in his own home. His father beat him and sent him to the mosque to study. While he was studying for his [qualification] he associated with free thinkers, progressives and atheists and they influenced him to be an atheist.

18. In [year] the applicant he passed [his exams] and in [year] he was admitted into [a named] University where he obtained a [qualification]. He travelled to [two countries] before returning to Bangladesh in [year]. In [year] he was admitted into [a different] University at Dhaka for a [course] in [subject]. During this time, he was involved in discussions with his fellow students, teachers and others. He founded many of them to be religious fanatics, while a few supported his views and ideals. His belief is that religion is a tool of fanatics to oppress people in the world.

19. The applicant stated he obtained his [qualification] in [year]. Whilst at this university he published a website [Website 1], which he described a web magazine for free thinkers, bloggers, progressive writers and anyone who believed in Bangladesh and its independence. The applicant told the Tribunal that the website was preceded by another website, called [Website 2], which had been established in around [year]. He gave evidence he had some involvement with the administrators of this website but he did not establish or administer the website. He gave evidence it was banned by the Bangladeshi authorities and that the applicant established [Website 1] in around 2008. Questioned by the Tribunal, the applicant acknowledged that the [Website 2] contained [topical material] but stated that it promoted punishment for war criminals. He claimed that the [Website 1] website tried to move away from posting [just this topical] material.

20. The applicant states that following the national elections on 29 December 2008 the Awami League won a landslide victory and a mandate to constitute a trial for perpetrators of war crimes and crimes against humanity. In 2009 the Bangladesh government established a domestic tribunal to investigate and prosecute the perpetrators for genocide and crimes against humanity committed during the liberation war in 1971 by the Pakistan occupation army and their local cohorts. He claims that, along with other activists, he supported the punishment of the war criminals and he was involved in online and offline signature campaigns calling for capital punishment of war criminals. The applicant said that he is atheist and he was involved in website administration but he was not a blogger. However, because he attended many meetings he was easily identified and he claims threats were made against him.

21. The applicant claims that he and other online activists held a stall at [a public event] in Dhaka to obtain signatures in support of their campaign to punish war criminals. He claimed that those who ran the stall were targeted and, although he worked behind the scenes on the website, he attended many meetings with fellow bloggers and his face became known. He claimed that on a number of occasions he was threatened by fanatics because he was atheist. On one occasion he abused by three religious fundamentalists when he was leaving home, on another occasion he was threatened returning from the [public event]. He said that he was an atheist but his father was a religious fundamentalist and that his family did not support him when he faced these troubles.

22. The applicant claimed that after he left Bangladesh [Website 1] supported the Shabag movement led by Mr H Sarkar. He claimed that two of his fellow website administrators face harm: [Mr A], who wrote under the name [name] was [killed], and the other website administrator, [Witness B], was attacked and later had to leave Bangladesh and travel to [Country 1] to save his life. He claimed that [Mr A] and [Witness B] were both active in support of the Shahbag movement.

    The evidence of [Witness A] and [Witness B]

23. The applicant claimed that when he was in Bangladesh he was closely associated with other like-minded website administrators and bloggers. Some of his associates were killed and others had now fled Bangladesh to seek asylum abroad. He stated that [Mr A] was killed and [Witness B] and [Witness A] are now in [Country 1]. Another blogger, [Mr B] was butchered and is now in [another country] as is another blogger who the applicant identified as [Mr C].  As noted below, the applicant submitted photographs which were said to be of him at various events and lunches with a group of bloggers, including [Witness A] and [Witness B].

24. The Tribunal took evidence from [Witness A] and [Witness B] via telephone from [Country 1]. Before the Tribunal did so, it received two statements from [Witness A] and two statements from [Witness B]. The Tribunal also received: identity documentation issued to [Witness A] by the [Country 1] authorities while his asylum seeker application is being processed;[2] and identity documentation issued to [Witness B] by the [Country 1] authorities while his asylum claim is being processed.[3] The evidence of both witnesses about their identity and circumstances was consistent with publically available news reports about the witnesses, and information contained on their publically available [social media] accounts. Both witnesses provided further details about their circumstances and the circumstances of the applicant. Their evidence is briefly summarised below and discussed further below in the Assessment of Claims and Evidence.

    [2] Tribunal file, folio 201

    [3] Tribunal file, folio 202,207-228.

25. [Witness A] gave evidence he was born on [date].  He is married with [children] and they are all currently in [Country 1] seeking asylum. He arrived in [Country 1] [in] February 2016 with his [children]. His wife was already studying [overseas]. He described the [Country 1] refugee status determination procedure: he has attended one interview and is waiting for the second interview. He is active on [social media] and, when he gave evidence to the Tribunal, he readily identified his most recent [social media] post. [Witness A] gave evidence that the applicant left Bangladesh in [year]. He gave evidence that they were targeted [while] returning from [a named business] in February 2009. He gave evidence that they ran away and later the applicant left Bangladesh. Initially they had no contact after the applicant left Bangladesh but later the applicant assisted them in administering websites and uploading materials. He also assisted with fundraising.

26. [Witness A] gave evidence that left Bangladesh in 2016 because his life had threatened because of his activities as a blogger. He was a popular blogger and his name was on [a] list that Islamists wanted to kill. They received some protection from the police but after a while it was not enough. He was having trouble getting accommodation. He began blogging on [another website]. He also blogged on [social media], posting on [Website 3] and alongside the applicant on [Website 1]. Along with the applicant he campaigned to obtain signatures for the punishment of war criminals. The website [Website 1] is no longer active. He gave evidence that [Website 1] was a youth forum that had a section that demanded punishment for war criminals. When asked whether [Website 1] had [the topical material], he advised that there was a section called [section name]. He confirmed that he is in [Country 1] with [Witness B], who was a blogger in Bangladesh and had been involved in campaigning for punishment for war criminals.

27. [Witness B] gave evidence to the Tribunal. He provided details about his identity and background and confirmed that he is currently seeking asylum in [Country 1]. He described the [Country 1] refugee status determination process. He is awaiting his second interview. He is married but his wife in Bangladesh. He does not have children. He travelled from Bangladesh to [Country 1] with [Witness A] [in] February 2016. He said he was threatened and people tried to kill him simply because he was blogging. He had to hide. He was mentally and physically devastated. He had to leave Bangladesh. He described some of the online forums on which he had recently published blogs. Currently he is only blogging on [social media] because [the website] where he used to blog, was banned by the Bangladeshi government.[4]  He has previously blogged on various other online sites, including [Website 3].[5]

    [4] This is consistent with independent sources. See, for e.g. [Deleted].

    [5] [Information deleted].

1. [Witness B] gave evidence that he knew the applicant because he wrote on his forum, [Website 1], he wrote about the problems causes by religion.  He was also involved in developing a petition again the 1971 war criminals. [Witness B] said since 2013 he had been targeted because of his blogging. During the Shahbag movement their [colleague] was killed and their website faced cyber attacks.  He couldn’t remember exactly when the applicant left Bangladesh but thought most likely it was in 2010. He described the applicant as a mentor, brother and comrade. Initially after he left Bangladesh they were not in contact much but later when he was involved in the Shahbag movement he contacted the applicant, who he described as extremely intelligent, for assistance in relation to technical matters such as cyber attacks on their server which destroyed their database in [year].

   Photographic and youtube evidence

2. The Tribunal has also considered the photographs and youtube material the applicant has submitted. The photographs include: images of the applicant with people who are resemble [bloggers] in Bangladesh including [Mr B], [Mr A], and [Witness B] as well as images of these bloggers where the applicant is not visible. The applicant has the photographs that show him and others in front of a banner that bears the website address [Website 1] that he has said were taken at the [public event]. The applicant has also submitted two youtube clips which are discussed further below in the Assessment of Claims and Evidence.

   ASSESSMENT OF CLAIMS AND EVIDENCE

3. On the evidence before it, the Tribunal accepts that the applicants are nationals of Bangladesh. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Bangladesh is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Bangladesh is the receiving country.

4. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[6] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[7]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[8]

   [6] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

   [7] MIMA v Rajalingam (1999) 93 FCR 220

   [8] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

5. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

   … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

6. The way the applicant has presented in his case initially caused the Tribunal to have concerns about the credibility of his claims. His application for a protection visa was attended by a significant delay. He did not attend the interview with the delegate and, while he did produced doctors’ certificates indicating he was unwell in February 2015, the certificates do not cover the day on which the interview was scheduled.  Before the first Tribunal hearing   the applicant submitted a statement of claims but no other documentary evidence corroborating his claims to have been involved in online activism in Bangladesh or to have worked with [Bangladeshi] bloggers. The website forum that he claimed to have administered in Bangladesh is no longer active and there are very limited records that it existed in the form the applicant has claimed.

7. However, when asked by the Tribunal to provide further information about his claims, the applicant was willing to do so. He produced further information about his claims and circumstances in Bangladesh and he identified two [Bengali] bloggers who are currently seeking asylum in [Country 1] who could corroborate his claims. [Witness A] and [Witness B] both gave oral and written evidence to the Tribunal in support of the applicant’s claims. Ultimately, on the evidence before it, the Tribunal has given the applicant the benefit of the doubt and accepted that key elements of his claims are true. In reaching this conclusion, the Tribunal has had regard additional evidence and information presented by the applicant that was not before the Department, as well as the testimony of the two witnesses who gave evidence in support of the applicant’s claims. 

8. The Tribunal accepts the applicant’s consistent evidence that he is an atheist. The Tribunal has considered his evidence that he is an activist who has expressed his religious and political views through his offline and online activities in Bangladesh. The applicant told the Tribunal that when he was in Bangladesh he was an administrator on a website called [Website 1]. He told the Tribunal that [Website 1] was preceded by a website called [Website 2] which had [topical] material on it, as well as political material calling for the punishment of war criminals. This website was blocked by the Bangladeshi authorities. He gave evidence that while he had some involvement in the [Website 2] website, he was not the administrator of the website. However, after the [Website 2] was blocked, he became the administrator of a new website, [Website 1], which he said was registered [overseas].  The applicant stated there was some [topical] content on this website, but it also had other content, including writing promoting secularism and justice for war criminals. He has said that this website no longer operates.

9. The applicant’s evidence about the risks facing bloggers in Bangladesh was detailed and he claimed he developed friendships with a number of [bloggers] through his work as an administrator on the [Website 1] website. With respect to the applicant’s claims that he administered a website called [Website 1], the Tribunal has considered a youtube video in Bengali which shows a blogger the applicant identified as a [Mr C] being interviewed in front of a [Website 1] banner at the [public event] in 2009 about a petition to bring war criminals to justice.[9] The applicant has also provided photographs of himself at this [public event] in front of the same [Website 1] banner,[10] as well as photographs of himself with various online activists.[11]  The Tribunal also notes [evidence that] indicates that the [Website 1] website was created in 2008, registered [overseas], and that [it] indicates that the website was registered in the applicant’s name (although it is unclear at what point the website was registered in his name).[12]

   [9] [Information deleted]. A Bengali speaking Tribunal officer confirmed the youtube clip was about a petition to bring war criminals to justice at [a public event].

   [10] Tribunal file, folio 211, 213

   [11] [Information deleted].

   [12] Tribunal file, folio 266.

10. The Tribunal has also located an online thesis by a Bangladeshi [academic, named], titled [title]. This thesis, written by a Bengali [academic] who participated in the Shahbag movement,  states that in 2008 a blogger who claimed to be a ‘Liberation-war researcher’ began posting on one of the most visited [sites] in Bangladesh (‘[Website 2]’)  and other sites, including [social media],  to mobilise people to support a campaign to punish war criminals. A footnote notes that later this website was banned but reemerged as [Website 1] ‘[details deleted]’. The source that is cited is a blogpost – in Bengali – by [Witness A].[13] The Tribunal considers this information is broadly consistent with the applicant’s claims.

    [13] [Information deleted].

11. The applicant’s claims about his past experiences were corroborated by the oral and written testimony of [Witness A] and [Witness B], both of whom [were] [bloggers] in Bangladesh and who are currently seeking asylum in [Country 1]. Both men gave detailed oral evidence in Bengali via telephone from [Country 1] and provided the Tribunal with scanned copies of their [Country 1] asylum documentation, which was consistent with publically available information about the form and content of [Country 1] asylum seeker documentation, and contained details about their dates of birth, arrival dates in [Country 1], and an image of each witness.  Their evidence was consistent with publically available information from a range of [sources], which refer to the difficulties [Witness A] and [Witness B] have had in Bangladesh and the fact that they have recently fled to [Country 1].[14] The evidence of [Witness A] and [Witness B] was also consistent with the public [social media] pages of [Witness A][15] and [Witness B][16]  which show the two men together in [Country 1]. 

    [14] [Information deleted].

    [15] [Information deleted].

    [16] [Information deleted].

12. While the Tribunal acknowledges that it is be difficult to verify the identity of witnesses who give telephone evidence from abroad, on the evidence before it the Tribunal accepts the identity of the witnesses that it spoke to via telephone in [Country 1] is as claimed. Having considered publically available images of [Witness A] and [Witness B] as well as [Mr B] and [Mr A], the Tribunal is prepared to accept that the various photographs that the applicant has presented of his activities in Bangladesh include photographs of the applicant with [Witness A] and [Witness B] are genuine and have not been manipulated or altered. The Tribunal further accepts that the applicant has remained in contact with [Witness A] and [Witness B] since he has arrived in Australia. The Tribunal accepts that independent sources indicate that [Witness A] and [Witness B] are [Bangladeshi] bloggers who are currently seeking asylum in [Country 1].

13. The Tribunal places weight on the fact that [Witness A] and [Witness B] both provided evidence corroborating the applicant’s claims to have been involved in online activism in Bangladesh and to have supported the Shahbag movement in 2013. The Tribunal notes that both men indicated that [Website 1] website was no longer active. While there were some minor discrepancies in the dates the applicant provided for certain events (for example, whether [Website 1] was established in 2007 or 2008, given the passage of time the Tribunal does not consider such discrepancies to be material). Accordingly, the Tribunal has placed favourable weight upon the corroborative evidence of [Witness A] and [Witness B] in assessing the applicant’s claims. Accordingly, while no documentary evidence has been provided to the Tribunal that supports the applicant’s claims that, whilst in Australia, he provided online assistance to Shahbag movement activists in 2013, having regard to the applicant’s evidence and the corroborative evidence provided by [Witness B], the Tribunal accepts that the applicant provided technical assistance and advice to online activists in Bangladesh during the Shahbag movement and that he continues to communicate with a network of Bengali atheists and secularists.

14. The Tribunal notes that before the Department the applicant produced documentation that was said to relate to court proceedings brought against him Bangladesh. Before the Tribunal the applicant gave evidence that he did not know whether these documents were genuine or not. He said he had been given the documents by an associate, [Mr D], but [Mr D] had disappeared. The applicant did not know whether the documents were genuine or not and could not contact [Mr D] to clarify these matters.  The applicant gave evidence that he heard rumours that there was an ICT case against him and that such cases had been filed against many other people. He said such a case could have been filed against him because he was an atheist who was critical of Islam. The applicant stated that he did not know whether the documents were legitimate or not and he did not provide further submissions about this issue.

15. Accordingly, while the Tribunal acknowledges that the country information indicates that the Bangladeshi authorities have prosecuted online activists who were perceived to promote atheism, the applicant has been unable to provide any meaningful detail about why he believes that he has been charged under the ICT Act , he is unsure if the court documents he submitted to the Department (which are accompanied by very poor quality English translations) are genuine. Neither of his witnesses suggested he was subject to a prosecution under the ICT Act. As I discussed with the applicant the country information indicates that fraudulent documentation is readily available in Bangladesh.[17] On the evidence currently before it, the Tribunal is not satisfied that the applicant is the subject of charges brought under the ICT Act.  

    [17] DFAT Country Information Report, 5 July 2016.

16. The applicant explained his lengthy delay in applying for a protection visa by saying that he thought he could stay in Australia as a student. He felt that if he bought some time in Australia the situation would improve. However, the situation has worsened and he now has [children] in Australia. Although he contemplated returning to Bangladesh his wife did not want to do so because she felt it was unsafe. They had argued about this issue.  The situation is worsening and bloggers are leaving the country.   The Tribunal has considered this explanation. The independent country information indicates that the risks facing atheists who promote secularism online have increased since the applicant left Bangladesh and travelled to Australia.  Since the applicant left Bangladesh his friends and associates have been threatened and, in one case, killed because they promoted secularism online. The Tribunal finds plausible that, as the father of [young children] who were born in Australia, his willingness to take risks with respect to his safety and the safety of his family members has diminished. Accordingly, the Tribunal accepts that the applicant has adequately explained his delay in applying for a protection visa. 

17. The Tribunal accepts that the applicant is an atheist and that, when he was in Bangladesh, he was a part of a loosely linked group of bloggers, secularists and online activists who promoted secular ideas and used online platforms and signature campaigns to call for the punishment of war criminals. The Tribunal accepts that the applicant facilitated the discussion of such topics online through his administration of a website called [Website 1] and that he was also involved in other activities, such as attending the [public event] in the company of other secularists to collect signatures supporting the punishment of war criminals. The Tribunal accepts that when the applicant was in Bangladesh he was threatened in Bangladesh because of his involvement in online activism and his involvement in the [Website 1] forum that promoted justice for war criminals. The Tribunal accepts that after that the applicant left Bangladesh he has remained in communication with other online activists in Bangladesh. The Tribunal accepts, based on the applicant’s evidence and the evidence of [Witness B], that the applicant provided technical assistance and support to [Witness B] and other Shahbag movement activists in 2013. The Tribunal accepts that an online activists who previously worked with the applicant, [Mr A], was killed in 2013 and that other bloggers, including [Witness B] and [Witness A] who worked with the applicant in Bangladesh, have now fled abroad to seek asylum. 

18. The Tribunal accepts that, if the applicant returns to Bangladesh, he will continue to engage in online activism and to communicate with a loose community of secular and atheists bloggers and activists, some of whom, including [Witness A] and [Witness B],  have now sought asylum abroad. While the Tribunal is not persuaded that the applicant has any plans to re-establish the [Website 1] website, the Tribunal accepts that the applicant is an atheist who holds views that are critical of Islam and its role in politics in Bangladesh and that, if the applicant returned to Bangladesh, he would associate with free thinkers and secularists and atheists and engage in conduct that would be perceived as anti-Islamic. The Tribunal accepts that, in the past, the applicant has been threatened by unidentified religious extremists. In this context the Tribunal has considered whether, if the applicant returns to Bangladesh or in the reasonably foreseeable future there is a real chance he will face serious harm.

    Is the applicant a refugee?

19. The Tribunal accepts that atheists in Bangladesh who express their views about religious and political matters may be at risk of persecutory harm. The DFAT Country Information Report on Bangladesh published on 5 July 2016 states that the number of atheists and secularists in Bangladesh is unknown. According to DFAT, these individuals generally identify as secularists rather than atheists and do not form a coherent, organised group. The term ‘atheist’ is predominantly used by pro-Islamist groups to mark out protesters who have questioned the role of Islam in the state.  Independent information refers to attacks at bloggers aimed at silencing liberal and secular voices. In July 2016 DFAT reported that:

    3.40 Anti-Islamist bloggers were subjected to heightened levels of Islamist militant violence in 2015, with militants killing four such bloggers and one anti-Islamist publisher in separate machete attacks in Dhaka and Sylhet. A further killing occurred on 23 April 2016, when a university professor was murdered in Rajshahi. While not an atheist, the professor was reportedly involved with cultural activities which many hard-line groups condemned as ‘un-Islamic’. The increased frequency of attacks contrasts with two attacks on anti-Islamist bloggers in 2013 (resulting in one death) and none in 2014. ABT is believed to be behind the attacks, as well as the publication in 2013 of a ‘hit list’ containing the names of 84 anti-Islamist bloggers (all bloggers killed in 2015 were on this list). Militants have also sent death threats to leaders of the 2013 Shahbagh Movement, which many associate with secularism.

    3.41 Authorities have made a number of arrests in connection with these attacks. However, according to Human Rights Watch, bloggers, writers and publishers whose names are on the hit list have gone into hiding because of concerns about the absence, or inadequacy, of state protection. The UN Special Rapporteur on Freedom of Religion and Belief has also criticised the Bangladeshi Government’s response, noting that Government representatives have admonished individuals for expressing critical views on religion, asking them not to go ‘too far’ in their criticisms, while also condemning the threats and acts of violence – possibly with the intention of appeasing religious militants.[18]

    [18] DFAT Country Information Report: Bangladesh, 5 July 2016.

1. In 2016 Freedom House reported that in 2015 ‘internet freedom declined after the highest number of fatal attacks by religious extremists targeting online activists in Bangladesh on record in 2015’. According to Freedom House:

   Attacks on secular bloggers started in 2013, when Asif Mohiuddin was attacked by extremists, and blogger Ahmed Rajib Haider was killed outside his home. They were singled out in part because of their prominence in the 2013 Shahbag Movement, broad antigovernment protests which grew out of the response to a war crimes tribunal verdict against a religious leader. Protesters said the verdict was too lenient, and religious extremists organized to punish the movement’s leading figures and others they perceived as promoting secular, liberal values. In the past year, Facebook and other social media services were blocked for more than two weeks to prevent unrest after the Supreme Court upheld death penalties handed down by the same tribunal for war crimes committed in 1971.

2. An October 2015 Jamestown Foundation report on Islamic State-influenced attacks in Bangladesh indicates that extremist attacks have predominately been ‘targeted towards specific individuals variously accused of insulting or challenging Islam’.[19] There are numerous other reports that indicates that those who criticise or are perceived to criticise Islam and promote secularism have been the victims of violent attacks.[20] It has been  reported that to write about Islam or question it is to risk death from Islamists[21]

   [19] Brandon, J 2015, ‘Bangladesh Attacks Show Increasing Islamic State Influence’, Terrorism Monitor, Jamestown Foundation, vol.13, issue 21, 30 October <

   [20] CXBD6A0DE15274: "Bangladesh Attacks Show Increasing Islamic State Influence", Jamestown Foundation, 30 October 2015.

   [21] Bangladesh: where the Islamists' sword is mightier than the pen” The Age, 29 October 2015

3. In April 2016 the US Department of State noted that one of the most significant human rights problems in Bangladesh was the killing of secular bloggers and others by groups espousing extremist views,[22] reporting that: 

   During the year violent extremists killed four bloggers with reputations for secularist or anti-Islamic writing. The government took some steps to investigate the killings and apprehend suspects. Officials condemned the killings but also cautioned that no one should write anything that offends the religious sensitivities of others. Offending religious sensitivities is an offense. In October violent extremists killed one person and injured three in two separate but closely timed attacks on publishers of one of the slain bloggers, Avijit Roy. Extremist organizations claimed responsibility for the attacks on behalf of Al-Qaeda in the Indian Subcontinent (AQIS).

   [22]  US Department of State 2015 Bangladesh 2015 Human Rights Report - >

   In 2016 the United States Commission on International Religious Freedom reported:

   In 2015, violent extremists killed, threatened, assaulted, harassed, and intimidated religious minorities and self-described atheists or secularist bloggers. While the government, led by the ruling Awami League, has taken steps to investigate, arrest, and prosecute perpetrators of violent attacks or threats, and has increased protection for likely targets, religious and civil society groups fear that increasing religious extremism will result in future threats and attacks ….

   In 2015, four Bangladeshis – Washiqur Rahman Babu, Ananta Bijoy Das, Niloy Chatterjee, and Faisal Arefin Dipan – and one Bangladeshi-American, Avijit Roy, were assassinated for their writings on secularism and freedom of thought, religious and communal tolerance, and political transparency and accountability. Groups such as Al Qaeda in the Indian Subcontinent (AQIS), Ansar al Islam, and Ansarullah Bangla Team (ABT) claimed responsibility. According to the government, over 30 people have been arrested for the murders of Roy, Bijoy Das, Babu, and Chatterjee. Additionally, on December 31, 2015, two men were sentenced to death and six others to prison for the 2013 murder of blogger Ahmed Rajib Haider. Due to threats made against them, including in “Hit Lists” of individuals targeted for assassination widely available on the Internet, dozens of individuals have either fled the country or their areas of residence.[23]

   [23] "USCIRF Annual Report 2016 - Other countries regions monitored - Bangladesh", United States Commission on International Religious Freedom (USCIRF), 02 May 2016.

4. The country information indicates that the dangers facing atheists who oppose the risk of Islamic fundamentalism are worsening. Bloggers and others espousing secular values have been killed or injured by extremist groups.[24] In April 2016 the International Crisis Group reported that the ‘resurgent extremist threat’ is symbolised by the killing of secular bloggers and foreigners and attacks on religious minorities in 2015 and in April 2016.[25] The ICG also reports that that the government ‘criticised the blogger community for promoting atheism and was silent when the Ulema League, an AL-affiliated religious group, demanded the death penalty for anyone insulting religious sentiments.[26]In April 2016 Human Rights Watch reported that the rights to freedom of speech and assembly are coming under sustained attack by Bangladesh’s increasingly authoritarian government

   [24] International Crisis Group 2016, Political Conflict, Extremism and Criminal Justice in Bangladesh, 11 April, p.14 < >

   [26]International Crisis Group 2016, Political Conflict, Extremism and Criminal Justice in Bangladesh, 11 April, p.14 >

   The Tribunal has accepted that the applicant is an atheist and has been involved in maintaining and supporting website forums that opposed the rise of Islamic fundamentalism in Bangladesh and campaigns for the punishment of war criminals. The Tribunal accepts that, in the past, the applicant has been threatened for challenging Islamic fundamentalism and calling for punishment for war criminals. The Tribunal accepts that the applicant’s views about religious and political matters, the values of secularism, and the dangers of religious extremism are long-held. The Tribunal finds that, if the applicant were to return to Bangladesh, he would continue to live as an atheist, promote secular values, and oppose Islamic fundamentalism online. The Tribunal accepts that, because of his religious and political beliefs and activities, there is a real chance that the applicant would be exposed to serious harm by violent extremists.

5. The Tribunal considers that the risks facing atheists and secularists who promote secularism and oppose the rise of Islamic fundamentalism in Bangladesh are growing. Having regards to the past threats made against the applicant, as well as the real possibility that his name is on a hit list in Bangladesh, the Tribunal find that there is a real chance the applicant will suffer serious harm anywhere he chooses to live in Bangladesh at the hands of fundamental Islamists. The Tribunal accepts that the harm he may suffer could result in significant physical harm which involves serious harm to the person: s.91R(1)(b). The Tribunal is satisfied that the essential and significant reason would be imputed religious belief, i.e. that he is perceived to be opposed to Islam or anti-Islam: s.91R(1)(a). The Tribunal is also satisfied that the resulting persecution involves systematic and discriminatory conduct, in that it would amount to the deliberate targeting of the applicant for his imputed religious belief.

6. The Tribunal accepts that the applicant would be unable to access effective protection in Bangladesh as he is an atheist who is critical of religious extremism and that, because of his beliefs and activities, it is likely that he will be perceived as being anti-Islam.  Furthermore, while there are some reports that indicate that the Bangladeshi authorities have taken some steps to protect secular bloggers who have been threatened by radical Islamists, the country information indicates that the protection is available is inadequate and that such bloggers are also at risk of prosecution by the authorities if they are perceived to express anti-Islamic views. 

7. Relevantly, DFAT reports that the Information and Communication Technology Act (2006) makes it an offence to publish or transmit any material in electronic form that ‘hurts religious beliefs’ and the government has periodically arrested secular bloggers for publishing what pro-Islamist groups describe as ‘atheist material’.[27] For example, the authorities arrested and charged four secular bloggers in April 2013 after they posted comments calling for a ban of JI; and prosecuted two men for social media posts that allegedly criticised the Government in October 2015. DFAT assesses that atheists or secularists are subjected to a low level of official discrimination in the form of arrest and consequent legal proceedings. High-profile anti-Islamist bloggers face a high risk of violence with limited state protection.

   [27] DFAT Country Information Report: Bangladesh, 5 July 2016.

8. In 2016 Freedom House reported that the ICT Act was first used in 2013 to arrest four bloggers who had been vocal on different social issues and religious extremism. [28]  This report notes that, following recent amendments, police no longer need a warrant to make arrests, and the number of prosecutions is increasing. On August 2015, journalist Probir Shikdar was arrested under the ICT Act on charge of defaming a minister online. He was later freed on bail. There were at least four other arrests for criticizing or making fun of the government or sharing “harmful links” on Facebook. According to Freedom House:

   The attacks by religious extremists, along with the fear of arrest under the ICT Act, have created a climate of intimidation that fosters self-censorship among bloggers and internet users.[29]

   [28]Freedom House, Freedom on the Net 2015 - Bangladesh,  2016 < >

   [29]Freedom House, Freedom on the Net 2015 - Bangladesh,  2016 < >

9. The authorities’ troubling response to the dangers facing atheists and secular activists who express their views online is compounded by the broader problems that afflict the police force in Bangladesh. In a 2016 report on Bangladesh, the UN Human Rights Special Rapporteur noted that responses from the government in relation to violence against freethinkers such as bloggers sent ‘ambiguous’ messages to law enforcement agencies who responded by not offering protection to ‘critical freethinkers’.[30] In 2016 the International Crisis Group (ICG) observed that ‘police are widely perceived as politicised, corrupt and inept’.[31] Furthermore, according to the US Department of State government officials, including police, were sometimes slow to protect individuals, including members of minority religious groups, from violence.[32]

   [30] UN Human Rights Council 2016, Report of the Special Rapporteur on freedom of religion or belief on his mission to Bangladesh, 22 January, p.11 <

   [31] International Crisis Group 2016, Political Conflict, Extremism and Criminal Justice in Bangladesh, 11 April, p.14 < see also UK Home Office, Country Information and Guidance Bangladesh: Background information, including actors of protection, and internal relocation, 28 November 2014, pp. 13-16 < < OG180885B43>

   [32] US Department of State 2014, 2014 International Religious Freedom Report July-December,

10. Having regard to the country information cited above, the Tribunal is of the view that the authorities in Bangladesh would not provide the applicant with adequate and effective protection. The Tribunal accepts, therefore, that there is a real chance that the applicant will be persecuted for reasons of his religion (atheist) and political opinion if he returns to Bangladesh now or in the reasonably foreseeable future. In the Tribunal's view there is no part of Bangladesh to which the applicant could reasonably be expected to relocate where he would be safe from the persecution which he fears.

11. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has adequate and effective state protection available to him in Bangladesh. The Tribunal is not satisfied that the applicant could avoid the persecution he fears by internally relocating within Bangladesh.

12. Therefore the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons of his political opinion and religion, being an atheist, if he returned to Bangladesh in the reasonably foreseeable future. He is therefore a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion set out in s.36(2)(a) of the Act.

    CONCLUSION

13. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

14. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant’s wife and children are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

15. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Frances Simmons
    Member