1505334 (Refugee)

[2016] AATA 4725

1505334 (Refugee) [2016] AATA 4725 (16 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505334

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:16 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2016 at 12:08pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa [in] April 2013 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

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’).

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.

10. The issue in this case is whether there is a real chance the applicant will suffer serious harm for a Convention reason on return to Bangladesh or alternatively whether there are substantial grounds for believing there is a real risk she will suffer significant harm if removed from Australia to Bangladesh. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

11. In her application for a Protection visa the applicant claims:

12. Assuming the potential loss of employment she will have to return to her village where her perpetrators are living freely.  They are able to find her anywhere in Bangladesh. 

13. Her perpetrators are Jamaat-e-Islamists and in addition the social and political situation in Bangladesh is deteriorating.  Killings, kidnapping and homicide are daily occurrences in the country and the government has totally failed to give any protection to women.

14. She is recognised and identified as a person who is vehemently supportive of women’s education and women’s rights.  She will not be accepted under any circumstances.

15. In a submission made by the applicant’s representative on 18 April 2013 it is submitted that the applicant belongs to the social group of Acid Victims whose members are discriminated against for their acid burns, socially and economically.  Further she has grounds for consideration under the complementary protection provisions.

16. In a statement dated 22 April 2013 the applicant claims:

17. As a little girl she had very high hopes and irrepressible desires to be an educator.  She passed her Secondary School Certificate in [year].  She admitted herself to [a] College and started [further] education.

18. Her attitude towards woman’s rights and female education and the fact she openly expressed her opinions on these subjects made her a target of Jamaat-e-Islamist and Chattra Sibir supporters, [Mr C] and [Mr D].

19. [Mr C] followed her since she was a little girl and wanted to have a love affair with her.  He wrote her love letters and sent her cards.  At first she did not know what to make of his proposals.  Later on when she refused a mock marriage proposal [Mr C] became very angry and disappointed and he sent white funeral cloths meant as death threats to her family.  He was later accompanied by his friend [Mr D] who was also a student at [the] College.

20. [In] April 1999 when going to [a location] she was the victim of an acid throwint attack. She was taken to the local hospital and then moved to the District Hospital and eventually to [another] Hospital where she was treated for one month. After [number] operations she was released.

21. [In] April 1999 her [sibling] lodged a case against the offenders, [Mr C] and [Mr D].  In 2002 they were sentenced to [number] years jail.  [Mr C] had surrendered himself to the court and accepted the sentence.  After a couple of years he was bailed out.  [Mr D] fled the country to [another country] to avoid imprisonment but later appealed to the Supreme Court and the case is still going on and pending a final decision.

22. Her offenders keep threatening her and other family members.  They have threatened to deform her face even more.  Finally her family members sent her to a relative’s house and kept her away from the family for their own safety and security.  While staying with her relative the wound on her face became worse and she was again taken to [the other] hospital for treatment.  Her family disappeared from her life and a kind hearted lady took her in and sheltered her and found her a [job] which she did from 2007 to 2008.

23. [In] March 2008 she attended a program on International Women’s Day where she met some NGOs.  She became a voluntary office member.  Later she obtained a job at [an employer] and started living alone in Dhaka.  Her attackers sought her out and started threatening to kill her or maim her in another acid attack. At the same time she was teased about her deformed face and laughed at.  She felt humiliated and suffered nightmares, depression, despair and disappointment about an uncertain future.

24. The NGO’s [Agency 1] took her to places, nationally and internationally, to expose acid victimisation.  She attended conferences and delivered speeches on acid victims [internationally].  She was also interviewed by TV programs.  The organisers of these events made all travel arrangements and kept her passport with them.  She was required to read and recite their written letters and essays in front of the radio and in TV interviews. She went to Australia in 2009, [country] in 2010, [countries] in 2011 and [country] in 2012.  Later she obtained an invitation [to] visit Australia and she arrived to [city] [in] February 2013.

25. When she was making trips overseas nobody explained to her the options for seeking protection.  It was only on her last trip to Australia that some country people told her she could apply for a protection visa. 

    Evidence before the Tribunal

26. Following a decision of the Delegate, a further statutory declaration dated 7 June 2013 states the following:

27. The Delegate was wrong in finding the documents she has submitted are not genuine.  The Delegate made no effort to try to establish whether the documents were genuine or not.  The documents included photographs of her injured face and news articles about her attack.

28. She was disappointed when [Agency 1] would not go with her to the police to complain about [Mr C] and [Mr D] who were threatening to kill her.  Finally her friend accompanied her to the police station where she submitted a complaint against the two men.  She has also provided copies of documents concerning a challenge in the High Court made by [Mr D].  This appeal is ongoing.

29. Regarding the Delegates finding that she provided inconsistent evidence about her level of education, it is claimed that the [temporary] visa application which was made for her to come to Australia with [Agency 1] was filled in and submitted by a member of [Agency 1].  She did not know what was written there and told the Delegate the truth at the interview.  She was able to get a job with [an employer] where she had a [senior] role.  She was given the job as an acid survivor.  She would be proud and happy to have a University degree but she does not.

30. The Delegate was wrong to conclude that her family did not abandon her.  When she was released from hospital the first time her family took her home but did not allow her to go out of the house as they did not want the neighbours to see her.  After [number] months they sent her to the house of a relative and did not visit her.  Only her [relative] visited her and after he took her back to the hospital she never saw him again.  It was not until November or December 2013 when she was in Australia that she managed to find [a sibling] on Facebook.  [The sibling] told her the family were threatened by the two men who threw acid at her.  The family went to the police and lodged a General Diary against the men.  She was able to get a copy of the General Diary from her [sibling] and was in contact with [the sibling] for about eight or nine months but since then she has not heard from [the sibling] and [the sibling] has changed his Facebook contact name.

31. Regarding the Delegates finding that she was untruthful about her position in [Agency 1], she was never in control of money for [Agency 1] and was never Treasurer.  She told the Delegate this but the Delegate did not believe her.

32. The Delegate did not believe her that her words were scripted by [Agency 1] in her interview on [a television] program in [2009] where she is quoted as saying “[comments deleted]”.

33. She feels very alone and misunderstood.  Her family are scared of the Muslim terrorists and have abandoned her.  She still feels threatened by [Mr C] and [Mr D].  Her family won’t accept her if she returns and she has no friends in Bangladesh. 

34. In a letter addressed to [Ms B], the applicant’s representative, [Ms A], Senior Clinical Psychologist, [hospital name] provides background information on acid violence, including in Bangladesh and a history of the attack on the applicant.   Further it is submitted:

35. The applicant fears reprisals from the perpetrators as well as from others who may condemn her support for a woman’s right to education.  She also fears returning to daily teasing and cruelty directed towards her due to her disfigurement.  She is devastated she has no contact with family members.

36. The applicant underwent a psychological assessment [in] December 2015 and her symptoms are consistent with posttraumatic stress disorder and major depressive disorder.  She has twice tried to take her life by taking an overdose of prescribed medication, once in Bangladesh and once in Australia in June 2013.  She continues to have suicidal thoughts and dreams and she is very likely to become at an increased risk of suicide if her application to remain in Australia is declined.

    FINDINGS AND REASONS

    Country of reference

37. Attached to the Departments file are copies of the applicant’s Bangladeshi passport and birth certificate which confirm her claimed identity, date and place of birth.  In the absence of any information to the contrary the Tribunal finds the applicant is a national of Bangladesh and has assessed her claims against Bangladesh.

38. The applicant appeared before the Tribunal on 25 October 2016 to give evidence in support of her case.  The Tribunal found the applicant to be a truthful and credible witness.  She presented an account of her circumstances which is closely aligned with her written claims and submissions and she spoke in detail and persuasively about the events she experienced in Bangladesh and her fears of returning to Bangladesh for the reasons claimed.

39. The applicant’s face is visibly scarred and the various news reports submitted with her application and submissions support her claim to have suffered an acid burn attack.  When questioned about the reason for the attack she gave a consistent and plausible account of the incident including that her attackers are aligned with Jamaat-e-Islami and do not support women pursuing higher education.  Throughout, the applicant has claimed in written and oral submissions that she was a good scholar intent on pursuing higher education with the aim of becoming a teacher.  She claims, and the Tribunal accepts, based on her oral evidence, that she was vocal about women’s rights to education at that point in time.  She claims that it was her outspoken views on women’s right to education, combined with a rebuffed marriage proposal from one of her attackers, which led to the acid attack.  The Tribunal accepts her evidence and finds that she was attacked as claimed by two Jamaat-e-Islami supporters, [Mr C] and [Mr D].

40. The Tribunal acknowledges the concerns raised by the Delegate in relation to the reported ease with which false documents are obtained in Bangladesh.  However, as noted, the Tribunal is persuaded the applicant in this case is a truthful and credible witness and therefore has found no reason to believe that the supporting court and police documents she has submitted are falsified.  The Tribunal accepts, on the evidence before it, that criminal charges were brought against her attackers but that [Mr D] fled the country before legal proceedings commenced.  The Tribunal accepts that [Mr C] was sentenced to [number] years jail for his involvement in the attack but that he has since been released from prison.  The Tribunal also accepts that there is an ongoing court case underway in which [Mr D] is appealing the charges brought against him. 

41. Following her attack, the applicant claims she was hospitalised for a period and then returned to her home but that her family refused to allow her to leave the house because they did not want the neighbours to see her.  Further, she claims they accused her and insinuated she was a bad woman for what had happened to her.  Thereafter she claims they sent her to live with a relative and effectively abandoned her.  The Delegate did not accept the applicant is estranged from her family because she presented as evidence a copy of a police report which was obtained by her [sibling] following an incident in which the attackers harassed her family members.  The applicant has explained, both to the Delegate and the Tribunal that she made contact with a [sibling] via Facebook after her arrival in Australia and that they maintained contact for a while.  She claims that it was during this period that she was able to obtain the further police report.  Subsequently, she claims that her [sibling] has ceased communications with her.

42. While the Tribunal agrees that the applicant’s responses to this matter appear convenient it nevertheless finds her evidence at hearing about her experiences living in Dhaka in the years following her attack to be significant and relevant to this issue.  The applicant has consistently claimed that she was taken in by a kindly lady after her latest release from hospital and that she lived with this woman, providing [support] for several years.  Later, the same woman assisted her to find work in a [factory] where she worked for three to four years.  When that woman died the applicant was forced to look for accommodation elsewhere and from then on her situation was very unstable.  She claims she was reduced to begging people to allow her to stay in their home and that she spent almost all the money she was able to earn paying for accommodation.  She claims she was treated very badly by the home owners, including the women and forced to move on numerous occasions.  She related several incidents of being accused of exceeding her role as a woman and being accused of inviting her attack.  She said that the home owners took her money and expected her to do many things for them and told her to give in to the views of her attackers.  She also claims that she was lured into situations where she was trapped in dangerous situations with young men and threatened and ridiculed.

43. The Tribunal believes the applicant was speaking genuinely and truthfully about her living arrangements in Dhaka and was persuaded by the detail she provided.  Indeed, the Tribunal is of the view the applicant may have been withholding information about certain of her experiences as it was too painful to reveal.  The Tribunal accepts she lived in a precarious, unsupportive and unstable situation in the years she resided in Dhaka before coming to Australia.  In view of this, the Tribunal is persuaded that she was in fact estranged from her family as claimed.  The Tribunal does not believe she would have willingly subjected herself to such humiliating and insecure living arrangements had she been able to return to the safety of her family home. The Tribunal does not find it improbable that she was able to make contact for a short while with her [sibling] through Facebook as claimed.

44. In addition to the above, the applicant claimed at hearing, that she was constantly subjected to teasing, harassment and high levels of humiliation from both children and adults because of her scarred face.  She claims there is a general assumption that she did something to cause the attack and consequently she is perceived to be a bad woman.  She said that in the end she started to believe the criticisms herself and her life was intolerably sad. 

45. The applicant has also claimed that after [Mr C] was released from prison he constantly threatened to further harm her when she encountered him on the street and over the phone.  She claims that when [Mr D] returned to Bangladesh to fight his case in court he too joined in the threats and harassment.  In her absence she claims they have threatened her family as well.  She claims she is terrified they will instigate a further attack against her if she returns to Bangladesh.

1. The Tribunal put it to the applicant at hearing that it was difficult to accept she was constantly threatened by her attackers for several years, given she remained living in Dhaka where the threats occurred.  The Tribunal considers if this were true her attackers would have had every opportunity to attack her again but did not do so.  Speaking on behalf of the applicant, [Ms B], suggested that the attackers had and were already in trouble with the law as a result of their past actions and therefore they may have been intent on psychologically torturing the applicant rather than putting themselves at further risk of punishment by actually carrying through with their threats. While not without some doubts, the Tribunal has given the applicant the benefit of the doubt and is prepared to accept, based on her oral evidence and copies of police “general diary” reports that she and members of her family were subjected to verbal intimidation by her attackers, albeit not to the extent that is claimed.

2. Whereas it is submitted the applicant is recognised as a vehement supporter of women’s rights, based on her evidence at hearing the Tribunal does not accept this. The Tribunal accepts she was vocal about women’s rights to education in her younger years but while the evidence supports she was involved with [Agency 1] in Bangladesh and travelled with the organisation to various countries as a speaker for victims’ rights, the applicant claims that she only became involved with [Agency 1] in the hope that she would be assisted to live a safer and more comfortable life.  In order to achieve this aim she claims she cooperated with the organisation and was willing to speak from prepared scripts.  In the end, she said that while she was able to secure a job with [an employer] using [Agency 1] as a referee, in reality, the organisation did little for her and her hopes to achieve a better future were not fulfilled.  She said that she was not and is not involved with any women’s organisations either in Bangladesh or Australia and based on her oral evidence the Tribunal is satisfied she would not do so on return to Bangladesh either. 

3. According to DFAT’s country information report, Bangladesh, 5 July 2016, women continue to face widespread societal prejudice in Bangladesh and are subjected to sexual and other forms of violence which disproportionately affects women who are single, divorced, indigenous or stateless.  General violence against women also occurs throughout Bangladesh.  [There were] reported 41 acid attacks against women in 2015 and most of these were connected with marital, family, land, property or money disputes with other attacks related to dowry payments and refusals to accept marriage proposals.  Further, DFAT reports that the police have demonstrated a reluctance to investigate cases of sexual and gender based violence.  DFAT concludes that the majority of women in Bangladesh face persistent societal discrimination and the threat of gender based violence.  Longstanding traditional values and gender roles also continue to restrict the participation of women in the workforce. 

4. On 24 May 2016, Freedom House, in its report, Freedom in the World 2016 – Bangladesh, states that rape, acid throwing and other forms of violence against women occur regularly despite laws offering some level of protection.  Police accept bribes to quash rape cases and rarely enforce existing laws protecting women.

5. The US Department of State’s 2015 report on Human Rights in Bangladesh, (2016), states that acid attacks, although less common than in the past, remained a serious problem.  To facilitate speedier prosecution of acid throwing cases the law provides special tribunals and generally does not allow bail but according to [Agency 1] the special tribunals were not effective, and conviction rates remained low.

6. The April 2014 report of the UN Special Rapporteur on violence against women, its causes and consequences states:

   The government has undertaken a number of legal and institutional initiatives to meet its human rights obligations and address the situation of women and girls in the country.  However, these have not been translated into concrete improvements in the lives of the majority of women who remain marginalised, discriminated against and at a high risk of being subjected to violence. 

   Many women in Bangladesh face multiple and intersecting forms of discrimination, including women with disabilities, indigenous and minority women, and migrant workers. 

   Women were the main victims of acid attacks, which occurred within both the family and community spheres. 

   Victims of violence are reluctant to seek support through the justice system due to several factors, including community pressure and stigma, the lack of responsiveness by the justice system, pressure to withdraw complaints by local police and also the length of proceedings. 

   In Bangladesh, the main challenges relating to the investigation, prosecution and punishment of perpetrators for acts of violence against women are due to the lack of coordinated criminal justice response, expertise and adequate mechanisms to conduct credible investigations, comprehensive redress mechanisms, and understanding the root causes and consequences of violence against women.

7. A letter and psychological assessment report prepared by [Ms A], Senior Manager – Psychology, [facility], and submitted to the Tribunal references literature[1] on acid violence.  Among other things it is reported that perpetrators of acid violence intend to disfigure and cause extreme physical and mental suffering to victims.  Bangladesh has the highest reported incidence of acid violence in the world.  There, victims of acid violence are usually young females who have refused the sexual advances, or proposal of marriage, of a man or have been deemed to have transgressed traditional gender roles in some way. 

   [1] Avon Global Centre for Women and Justice at Cornell Law School and the New York City Bar Association, ‘Combatting acid violence in Bangladesh, India, and Cambodia.  2011; Bari, MS, Choudhury, M * Mahmud, ‘Acid Burns in Bangladesh’ Annals of Burns and Fire Disasters 2001; Haque, ES, & Ahsan, H, ‘Human Rights Violations against Women: Acid Violence in Bangladesh, American Journal of Preventive Medicine, 2014; Mannan, A. Ghani, S, Clarke A, White, P, Salmanta, S & Butler, PEM, ‘Psychological outcomes derived from an acid burned population in Bangladesh, and comparison with Western norms’, 2006; Mannan, A, Ghani, S, Sen SL, Clarke, A & Butler PEM, ‘The problem of acid violence in Bangladesh’, The Journal of Surgery, 2004

8. Further, the literature reports that acid violence creates fear among women in the societies in which it is prevalent.  Following an attack, acid violence survivors face marginalisation from society.  Community members may not help for fear of harassment from the perpetrators, who are often more socially powerful than the victim.  In Bangladesh, victims’ scarred faces can be considered a bad omen; survivors are excluded from weddings and avoided by pregnant women in case their babies are born deformed.  Frequently perceived as having committed an immoral act, such as having an extramarital affair, victims may be treated as outcasts who deserved their fate.  If single, acid burn survivors have little chance of ever getting married.  This has serious economic and social consequences in a country such as Bangladesh where a girl’s value is measured in terms of her ability to marry well.  They also find it very difficult to find employment.  Acid burn survivors often have low self-esteem, fear of being assaulted again, vulnerability to depression due to disfigurement, chronic anger and a sense of helplessness.  The social ostracism and isolation, devastating impact upon their personal and professional future, and the high levels of psychological distress experienced by acid burn survivors all serve to increase the risk of attempted or completed suicide within this group of individuals.

9. For the above reasons, and having regard to the country information outlined above, the Tribunal accepts the applicant has been and that there is a real chance she will again be, subjected to ridicule, harassment, humiliation and be socially ostracised, isolated and denied services as a woman baring the physical scars of an acid attack.  The Tribunal also finds she has been and that there is a real chance she will again be, perceived to be a woman who has committed an immoral act such as having an extramarital affair and therefore may be at higher risk of being targeted for further physical harm.  While acknowledging her ability to gain employment in the past the Tribunal finds on her oral evidence that it was a struggle to do so and ultimately her employment with [the employer] was under threat prior to her departure from Bangladesh due to her lack of higher skills. Based on the abovementioned country information the Tribunal finds there is a real chance she will face difficulties finding employment on return to Bangladesh as a scarred victim of an acid burn attack.  In the absence of stable employment and given the Tribunal’s findings about the level of ridicule and ostracism she is likely to face the Tribunal also accepts there is a real chance she will once again face significant difficulties finding stable accommodation on return to Bangladesh.  The Tribunal is satisfied the applicant is unable to seek the support of family members to overcome these obstacles.  Further, the Tribunal accepts the applicant has been and that there is a real chance she will again be the victim of at least verbal threats and intimidation from her attackers if she returns to Dhaka.

10. The Tribunal is of the view that the cumulative effect of these outcomes will cause the applicant extreme mental suffering and physical deprivation which will be so severe as to amount to serious harm.  The Tribunal is satisfied she will suffer such serious harm for reason of her membership of particular social groups, namely persons scarred by acid burn attacks and/or woman who are perceived to have transgressed social mores.  The above country information from numerous reliable sources indicates that if the applicant were to seek the protection of Bangladeshi authorities there is a real chance it would be denied.   In view of her physical appearance, the harm the applicant fears is likely to occur wherever she resides in Bangladesh and relocation within the country  is therefore not an available option for avoiding the harm she is likely to face.   

11. For these reasons, the Tribunal finds there is a real chance the applicant will suffer serious harm for a Convention related reason on return to Bangladesh. She therefore has a well-founded fear of persecution in Bangladesh and is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

    DECISION

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

    Tania Flood
    Member