1505693 (Refugee)

1505693 (Refugee) [2016] AATA 4909 (14 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1505693
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Melissa McAdam
DATE:14 December 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 December 2016 at 12:06pm

CATCHWORDS
Refugee – Protection visa – Federal Circuit Court appeal – Religion – Conversion to Anglican Christian – Political opinion – Family’s membership of BNP party – Relationship with girl with Awami League connections – Threats from girl’s family – Particular social group– Returnee from West – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 45AA, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2, r 2.08F
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 11 June 2014 and the delegate refused to grant the visa on 21 April 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born on [date] in [Town 1] in Kishurgong, Bangladesh.
b.He had [a number of years of] education in Bangladesh, at [Town 1] primary school between January [year] and December [year], and then at [a] High School between January [year] and December [year].
c.He left Bangladesh on 20 July 2007 through Dhaka Airport. He lived in [Country 1] unlawfully between July 2007 and November 2012. He worked as [an occupation] in [Country 1].
d.His parents, two brothers and one sister are residing in [Town 1] in Bangladesh. Two of his brothers are deceased.
e.He was born Muslim. He is now an Anglican Christian.
f.At school in Bangladesh he fell in love with a girl in his class from his village, named [Ms A]. They commenced a relationship. [Ms A]’s family were very powerful in the village and strongly aligned to the Awami League (AL). The applicant’s family supported the Bangladesh National Party (BNP) and were not influential. Due to the fact he and [Ms A] came from different classes and political affiliations their relationship was forbidden. They kept their relationship secret but after one year people in the village were speaking about it.
g.One day as he was attending the bazaar the applicant was stopped by [Ms A]’s brother who took the applicant to a house and questioned him. At the house many of the brother’s friends and AL supporters arrived. [Ms A]’s brother beat the applicant. He pulled out a knife and said the applicant would be killed if he was having an affair with [Ms A]. Someone else stopped [Ms A]’s brother stabbing the applicant.
h.One week later [Ms A] contacted the applicant and told him she could not live without him, and that she would commit suicide if their relationship did not continue.
i.[Ms A]’s family arranged for her to marry another man. [Ms A] found this out the day before the marriage was to take place. She asked the applicant to elope with her. He agreed to go with her but they were caught by [Ms A]’s brother. [Ms A]’s brother took them to the family home and severely beat the applicant with a stick. He told the applicant if the marriage did not go ahead the applicant would be cut into pieces and thrown in the river. The applicant was held captive until the marriage was completed.
j.A week after the marriage [Ms A] killed herself. Her family blamed the applicant for her death and threatened to kill him. In fear the applicant went to Dhaka and stayed with a friend. While he was there [Ms A]’s family went to the applicant’s home and threatened and beat his parents, demanding to know where the applicant was. The applicant’s father told him not to return. The applicant went to [Country 1].
k.In 2008 [Ms A]’s family and their associates tried to seize the applicant’s family’s property to force them to give information about the applicant. The applicant’s brother tried to stop them and died. The applicant’s parents tell him [Ms A]’s family remain angry and continue to hold the applicant responsible for [Ms A]’s death.
l.The applicant arrived in Australia on 1 January 2013. Since coming to Australia the applicant has become interested in Christianity after being introduced to Christian stories by a friend. The applicant loves learning about the bible and attending classes. He was baptised [in] June 2014 at [a church]. A friend in detention told the applicant’s parents about his conversion and they are very upset. They would not support him if he returns to Bangladesh so he would be more vulnerable to harm. His conversion would not be supported by the wider community.
m.He fears he will be killed by [Ms A]’s family if he returns to Bangladesh. He fears he would be at risk of harm from his family and the wider community. The authorities will not protect him as they only assist the ruling elite.
n.He submitted a copy of his Bangladeshi Birth certificate and a letter from [a Reverend], of the Anglican Parish of [Town 1], dated [July] 2014, which states that the applicant had weekly classes to prepare him for baptism and confirmation in the [detention] centre; and that the applicant was baptised [in] June.
Departmental Interview, 28 October 2014
The following is a summary of the claims and information provided by the applicant in his Departmental Interview:
a.The applicant flew by plane from Bangladesh to [Country 1] on a passport the Agent arranged for him. This was [in] July 2007. The Agent arranged the whole journey for him and two others.
b.He did not register with UNHCR in [Country 1].
c.The applicant stopped studying in Bangladesh in 2006. He completed [a certain grade]. He went to [Country 1] after this and worked as [an occupation] and in casual jobs.
d.The applicant became a Christian because he believes it. When he attended the class he got motivated. He liked the class. When he heard what Christ is he liked it. Earlier he did not know about the religion but when he heard the classes he liked it. He had been a Muslim. He did not know much or follow the Muslim religion much before.
e.He attended classes in Australia through a friend of his. He felt good. He attended the church and started praying and he felt very good. He got baptised. In September 2014 he obtained the confirmation. Baptism means he likes the words and they are believable. The significance of confirmation is that they believe he has been baptised. It is the proof he converted from the Muslim religion to the Christian religion.
f.The applicant chose to convert to Christianity in Australia because he did not like religion in Bangladesh. In Australia he started liking the Christian religion so he converted. No one taught him about the religion. He had to learn about it himself. In Australia he learned about it and liked it. To be Christian means to follow the religion, one needs to get baptised and get the confirmation.
g.The applicant supports the BNP and fights with the AL because the BNP supports religion. The AL is in power. The AL stops them when they go to pray. The applicant would support the BNP if he returns to Bangladesh, even though he has converted to Christianity, because his family supports the BNP. He does not know how his family supported the BNP. He was not involved because he studied.
h.He attends the church every Sunday and prays in his room. He attends class every Friday. He prays the Christian prayers with others in their rooms in the detention centre. Christians need to pray five times a day. He prays before and after breakfast, after midday, in the evening and after evening. He has the book, he reads and prays. He prays and reads in English. He does not hide his conversion from others in the detention centre.
i.He has read the bible. In the bible there is a prayer book and they have to pray five times a day. There is the story of Jesus in Mark One and Mark Two. He cannot remember anything else.
j.He knows Mariam is the mother of Jesus. Mariam is the Bengali name. He does not know how Jesus died. He does not know much about it. Whatever they teach them in class they follow. A lot of things he does not remember. He does not know what the last supper is. He does not know what festival celebrates the birth of Jesus. He does not know about Jesus’ birth. He has learned about Jesus’ life and that Jesus helped the poor and needy and people who were sick or had leprosy. Jesus said approach me and you will be cured of your illness.
k.He believes in Christianity. He likes the Christian religion. If he returns to Bangladesh he will follow the Christian religion. But in Bangladesh people are not allowed to follow the Christian religion.
l.His family know about his conversion. Someone in the centre revealed it to his parents. He phoned his home and they told the applicant’s parents. The man in the centre is also a Christian convert. The applicant’s parents are unhappy.
m.He left Bangladesh because of a problem. He had a relationship with a girl, [Ms A], while he was in school. He knew the relationship was risky but he continued it because they were in love. Her family were powerful and supported the AL.
n.[Ms A] married into another family. She informed the applicant the day before the marriage that they should leave. While they were going her elder brother caught them. When they left the house her elder brother saw them and took them. When she married he released the applicant. One week after her marriage [Ms A] committed suicide so they think [Ms A] died because of the applicant.
o.When he was in Dhaka [Ms A]’s family went to his parents’ home and enquired about the applicant and beat up his parents. [Ms A]’s family are from the applicant’s village. If he returns to Bangladesh [Ms A]’s family will harm him. He cannot return to Dhaka because [Ms A]’s family are powerful so they will find him.
p.The applicant did not mention these problems in his Entry Interview because he did not feel well then. He does not remember what he said then. He was disturbed mentally then.
Delegate’s Decision
A note in the Delegate’s decision states that the applicant was affected by the department’s data breach of February 2014.
The Delegate found that the applicant had not genuinely converted to Christianity. She did not accept the applicant had an illicit relationship with a girl called [Ms A].
The Delegate was not satisfied that there was a real chance of the applicant facing serious harm in Bangladesh because of the data breach.
The Delegate was not satisfied the applicant’s baptism in Australia would come to the attention of the authorities or community in Bangladesh.
Information to the Tribunal
Agents submission, 17 October 2016
The applicant’s Agents sent a pre-hearing written submission to the Tribunal on 17 October 2016. In summary it states:
a.The Applicant is [an age] year old male born in [Town 1] village, Kishoreganj district, Bangladesh. The applicant has never been married and does not have any children. His parents and his siblings reside in Bangladesh. [A number] of his brothers are deceased.
b.The applicant’s faith is Christian, Anglican and his race is Bangladeshi.
c.The applicant’s claims fall within the scope of the Refugees Convention for reason of his religion, his political opinion and his membership of a particular social group, namely as a returnee from the West.
d.The applicant fears he will be subjected to serious harm upon his return to Bangladesh due to his conversion to Christianity. The applicant became interested in Christianity in Australia and was baptised [in] June 2014 at [a church].
e.The Applicant fears that because he will not be able to freely practice his faith in Bangladesh and he will be persecuted for it. His family are not supportive of his conversion. He was introduced to Christianity by his friend and was taken by the teachings and practices of the faith. He would be subjected to harassment, ridicule and persecution from his wider community and the Authorities due to his conversion if he was forced to return to Bangladesh.
f.Christians suffer persecution in Bangladesh and given the applicant’s past, his relationship with [Ms A], whose family are Awami League(AL) supporters and his own support for the Bangladesh Nationalist Party (BNP) there is a real risk that he will suffer persecution if returned to Bangladesh.
g.The applicant also fears that he will be subjected to serious harm upon his return to Bangladesh due to his imputed political opinion as the applicant and his family are supporters of the BNP. The applicant was in a relationship with a girl named [Ms A] who came from a very influential family with a strong Awami League (AL) affiliation. The applicant faced persecution from [Ms A]’s family due to their relationship and was assaulted on multiple occasions by members of her family. The relationship was forbidden due to his support of the BNP and her family’s support of the AL.
h.The applicant and [Ms A] were going to elope however they were caught by her brother and were taken to the family home where the applicant was beaten and threatened. The applicant was held captive until [Ms A] was married to another man. A week after her wedding [Ms A] committed suicide and her family blamed the applicant for her death.
i.The applicant was then forced to flee Bangladesh and went to live with his friend in Dhaka. Following his departure [Ms A]’s family continued to go to the applicant’s home and threaten his parents and enquire about his whereabouts. In 2008 [Ms A]’s family and their associates tried to seize the applicant’s family property as a means to coerce his parents into providing information regarding his whereabouts. One of the applicant’s brothers tried to intervene and as a result of the confrontation with her family, he died. The applicant became increasingly frightened that he would be found even in [Country 1] due to [Ms A]’s family connections through the AL and he therefore fled to Australia.
j.Politically motivated violence in Bangladesh is widespread. The Applicant’s support of the BNP coupled with his involvement with [Ms A] and the history of AL members and supporters targeting BNP means that it is highly probable the would be at risk of serious harm upon return to Bangladesh.
k.The Applicant will further face persecution as a member of a particular social group, namely, as a ‘returnee from a western country’. Returnees from Western countries can be considered a particular social group. Those who have spent a significant period of time overseas are easily identifiable by their accents, familiarity with the English language and adoption of western styles and customs. These attributes are common to all members of this particular social group. Returnees are often the subjects of suspicion and kidnappings. As someone who has lived for an extended period of time in Australia, the applicant is at risk of being subjected to such harm upon return to his home country.
l.Individuals who enter love marriages or relationships in Bangladesh can be considered a member of a particular social group. Society at large is able to identify individuals who enter love relationships and do not adhere to societal norms by their actions. [Ms A]’s family did not support the relationship given his family was from a different class and had opposing political beliefs. The applicant’s fear of persecution is well founded given it is highly evident [Ms A]’s family are willing to go any length to try to subject the applicant to serious harm. They believe the applicant is responsible for [Ms A]’s death and has brought dishonour to their family.
m.When assessing the genuineness of the applicant’s conversion it is imperative to take into consideration that the applicant spent a prolonged period of time in Immigration Detention upon arrival to Australia therefore making it difficult for him to learn about Christianity and become a part of a Church Community. The fact the applicant speaks limited English impeded his ability to obtain in-depth knowledge about Christianity and convey information about his faith. In addition, given the applicant had only recently converted prior to his interview it is plausible that he did not possess in depth knowledge about his faith.
n.The Applicant was disenchanted by Islam and as a result decided to explore Christianity in Australia. Given the hardships he faced in Bangladesh, he yearned for spirituality in his life and upon learning about Christianity he felt the religion was akin to his beliefs and as such he decided to convert and follow the Christian faith. The applicant’s conversion is genuine. Bangladesh is a majority Muslim country so there is a real chance the applicant would face serious harm upon return to Bangladesh given he has decided to renounce his Islamic faith and convert to Christianity.
o.The purpose of the entry interview is to ascertain basic information about applicants and their journey to Australia. As such, it should not be relied upon to discount the applicant’s claims for protection. The Applicant was traumatised by the long and arduous journey to Australia and not able to fully articulate his claims in detail upon entry to Australia. Further, the applicant had not been explained the relevant law or had been afforded legal assistance at the time of his entry interview. Accordingly, it is highly plausible the applicant may have believed the information he provided on arrival to Australia would have been provided to the Bangladeshi Authorities and resulted in him facing further harm. Given these matters the credibility of the applicant’s claims should not be undermined on this basis of differences between his entry interview and protection visa interview.
p.The applicant’s lack of familiarity with the immigration process including formal interviews should be taken into consideration. The applicant has lived in fear of the authorities in Bangladesh who are known for their brutal treatment of individuals, therefore it is plausible that the applicant would hold a lack of trust in authorities and find it difficult to speak openly to authorities in Australia. In addition, the applicant was required to articulate his claims through an interpreter which impedes the accuracy of the evidence provided. Moreover, the applicant was held in immigration detention for a prolonged period of time which adversely affected his health, well-being and ability to recollect information.
q.In assessing the applicant’s profile, it is imperative to take into consideration that [Ms A]’s family are staunch AL supporters and clearly have a vendetta against the applicant. Accordingly, it is plausible they have made false allegations against the applicant which may result in him being subjected to serious harm upon return. It is highly plausible [Ms A]’s family would use their connections within AL to ensure the applicant is subjected to serious harm. Given the severity of the mistreatment perpetrated against the applicant in the past, which has resulted in the applicant having to flee, it is highly evident that the applicant is at risk of being subjected to serious harm. Given the past issues faced by the applicant, coupled with his conversion and time spent abroad, it cannot be discounted there is a real chance he would be subjected to serious harm upon return to Bangladesh.
r.Given the applicant’s religious conversion, his family’s political beliefs and his past issues with [Ms A]’s family, it is highly plausible he would be subjected to harsher penalties well beyond those stipulated by the general law in Bangladesh. If he was detained, it is likely he would be subjected to significant and serious harm due to his personal circumstances.
s.The police will not protect him given that they are aligned with the Awami League and powerful families. The Authorities would side with [Ms A]’s family and not provide the applicant with protection. Country information by Amnesty International in support of the argument was submitted.
t.The country information submitted indicates that religious converts are being targeted in Bangladesh, with persecution of Christian converts on the rise. Christians cannot freely practice their religion and are forced to keep their worshipping activities a secret as Christians are routinely killed for practicing their faith. Despite clear incidences of atrocities occurring against Christians, arrests are not made and authorities turn a blind eye.
u.Should it be found that the Applicant is not a refugee, there are substantial grounds for believing that there is a real risk that the Applicant will suffer significant harm if refouled from Australia.
v.The Applicant fears that he will be arbitrarily deprived of life if returned to Bangladesh. The ongoing political tension within Bangladesh, particularly between the BNP and Awami League has meant that BNP supporters are vulnerable and subjected to being targeted. Many have been harmed as a result of violent political clashes. Given the applicant’s past issues in Bangladesh the likelihood that he will be arbitrarily killed and/or targeted is not a remote possibility.
w.The applicant is likely to face significant harm arising from torture should he be forced to return to Bangladesh. Country information indicates that members of the BNP and religious converts are often subjected to torture from the Bangladeshi Authorities.
x.[Ms A]’s family hold the applicant responsible for the death of their daughter and for the dishonour their family has suffered as such want to seek further revenge against the applicant. Accordingly, it is highly plausible they would intentionally punish and intimidate the applicant by subjecting him to severe mental and physical pain and suffering.
y.The likelihood of the applicant being tortured upon his return to Bangladesh and this also constitutes cruel or inhuman treatment or punishment. It is plausible the applicant would be subjected to mental and physical pain and suffering given his personal circumstances upon return to Bangladesh particularly given his time abroad, conversion and the fact he has claimed asylum.
z.The Applicant was forced to endure ongoing humiliation and hardship in the past to the extent he felt that he had no option except to flee the country. Given the applicant’s personal circumstances, particularly the fact [Ms A]’s family wish to punish him for bringing dishonour to their family, there is a real chance he will be subjected to degrading treatment and punishment.
Tribunal Hearing

The applicant appeared before the Tribunal on 18 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The following is a summary of the information provided by the applicant at the hearing:
a.The applicant confirmed that all the information in his Protection visa application is correct. However he did not provide all his information in his Entry Interview.
b.The applicant was born in Kishoreganj which is about one to one and a half hours by train from Dhaka. He has not lived anywhere else in Bangladesh.
c.He left his village in about the 3^rd or 4^th month of 2007. He went to Dhaka for one or two months. He was in hiding there and did not do anything. He stayed in a temporary settlement [with] a friend. He thought there would be a problem in Dhaka so he tried to hide himself from people who could cause harm to him.
d.From Dhaka he flew to [Country 1]. He started communicating with an Agent three weeks before he left Bangladesh. The Agent had a company in Dhaka. The applicant was in hiding and didn’t go to the company. His friend helped him. It cost [amount] Bangladesh taka to leave. His father gave him the money. The applicant explained his problems to his friends and they contacted his father. The applicant could not communicate with his father because if people got to know maybe he would have a problem.
e.The applicant finished studying around the end of 2006, start of 2007, while in year 9.
f.The applicant helped his family and would do BNP activity sometimes. There are a senior group in his village who support the BNP. When they have meetings the applicant goes with them. At the meetings they talk about current issues. The applicant went to the meetings and participated and listened.
g.The applicant’s parents[and siblings] are in Bangladesh in his same village. The applicant was last in contact with his family while he was in camp in Australia, around two years ago. His parents are very good people. They were always helping the applicant and advising him to study and to be a good man. The applicant had a good relationship with them.
h.One of the applicant’s brothers, [Mr B], died in 2004 and his other brother, [Mr C], died in 2008. In 2004 there was a flood in the applicant’s area. [Mr B] was captured by a few people who killed him. He went to catch some fish. He was with three other people including a BNP supporter in a boat. They were all captured by a group and killed. The people who killed them were from the village. The police didn’t take the case. The BNP was in power then but the AL were popular in the applicant’s area and always in control.
i.[Mr C] was killed by some people. When [Ms A]’s family came to capture the applicant’s family’s land, his brother went there to defeat them and they killed him. The applicant does not know how he was killed.
j.[Ms A] killed herself in about the third month of 2007. She was [age] years old, the same age as the applicant. She and the applicant were at school together.
k.Their relationship started when they completed [a certain year]. It lasted for one year. They kept it secret. His family got to know about it six months into the relationship. His parents questioned him and he was very ashamed and denied it. They warned him not to do this because it was not good and may bring harm and shame.
l.The relationship started when the applicant approached [Ms A]. He told her he liked her and wanted to be in relationship with her. He wrote a letter for her and gave it to a friend to give to her. A few days later she replied. Two weeks later their relationship started. After a month it became a good relationship. [Ms A] would listen to the applicant and he would listen to her. They liked and loved each other and planned to get married.
m.The applicant liked [Ms A] because her behaviour was very good. She was serious in study. She was from a rich family but didn’t show that impression. Her family name was [deleted].
n.When they started their relationship they would meet. But they always maintained privacy and met in secret. They met at [a location]. They would not stay together for a long time. They would talk very quickly. This was when they were playing with other students in the school field. The girls would play on one side of the field and the boys on the other. Sometimes they would come close and say something quickly to each other and then go to their own side. When the applicant went to have water and [Ms A] was also on her side for water they would have a brief chat.
o.His village [Town 1] was [in] Kishoreganj district.
p.He and [Ms A] met in many places, many times. This was within their village. They never went anywhere. They would meet sometimes on their way to school or coming back from school.
q.When [Ms A]’s brother attacked the applicant the applicant’s family learned of the relationship. This was in December when they finished [a certain year]. The applicant went to a shop and [Ms A]’s brother asked him if he was in a relationship. The applicant said no and [Ms A]’s brother and his friends captured the applicant and took him away.
r.The applicant was taken by [Ms A]’s brother around the end of 2006. He was taken from a bazaar to a home in a different village about 30 minutes’ walk from his village. [Ms A]’s brother asked the applicant if it was true he was in a relationship with [Ms A] and the applicant answered yes. [Ms A]’s brother got a knife out and tried to kill the applicant but his friend stopped him. He warned the applicant that if he continued the relationship then it will be very bad.
s.About three weeks later, in the month of March, on the night before her wedding, [Ms A] and the applicant tried to run away together. It was around 9pm. [Ms A]’s brother captured them and took them to [Ms A]’s house. He physically and verbally assaulted the applicant there. The applicant was kept until Saturday, the day after [Ms A]’s wedding took place. He was then tied up and his mouth taped, and taken by car far away to a neighbouring village where he was released.
t.If he returns to Bangladesh [Ms A]’s family will kill him. He will also become the victim of Muslims because he has changed his religion.
u.He became an Anglican Christian [in] June 2014 while he was in [Australia] because he liked it.
v.He had a conversation with a friend in detention who told the applicant stories about Jesus. The applicant attended a class in detention. He liked the stories about Jesus. The stories about Jesus are about the way He was preaching the religion. He was helping people who were helpless and the eyesight of people who were blind. The applicant has read a lot of stories about Jesus and likes Him.
w.The applicant does not know much about Islam. He doesn’t practice Islam. He knows Muslims have to eat halal and they can’t drink or use marijuana. Muslims pray and have to do things that are honest. They use marijuana and drink wine and fight each other.
x.The applicant prefers Christianity to Islam because the attitude of Christianity is better. He was surrounded by Muslim people in Bangladesh. The Christian attitude is better. He hasn’t seen any bad behaviour in Australia. He saw Muslims fight in [Country 1] but did not see Christian people fight there.
y.He tries to follow the rules and regulations of Christianity. These are pray on Sundays. Some people go on Sunday and some pray five times, in the morning or night. The applicant prays five times sometimes, or sometimes twice. He make a prayer to the God. He recited the Lord’s Prayer.
z.He does the morning prayer. It is not similar to how Muslims pray. Muslims put a cap on their head and bow to the ground.
aa.The applicant knows that Jesus is the son of the God and that His birth was a miracle.
bb.On Sundays he goes to church in [Suburb 1] and sometimes to a church in [Suburb 2]. The church in [Suburb 1] is called ‘[name]’. It is [at an address]. The [Suburb 2] church is called ‘[name]’.
cc.He last attended the [Suburb 1] church the Sunday before the previous Sunday. A barbecue was held there. He attended the church service.
dd.He goes to the church to pray. He follows the Father when he says what page to go to and listens to him read out. The Father gives wine and bread in the name of Jesus.
ee.He attended a church service on the previous Saturday. The Father read out stories about Jesus. He doesn’t know the Father’s name.
ff.He chose the Anglican denomination because both the Catholic and the Anglicans came to the detention centre and told stories. He found there was more weight in the Anglican stories. Anglicans behave very well so he felt it was more true.
gg.He doesn’t know much about politics. The BNP were doing good when they were in power, and there was peace in the country.
hh.He cannot live in Dhaka because [Ms A]’s family are very wealthy so have people and relations everywhere so they will not have any problems finding him.
ii.[Ms A]’s family destroyed his family’s property and killed his brother. They hurt his mother’s hand when they attacked his brother.
jj.Because of the Immigration data breach his information has been spread all over the world, so he is in danger anywhere. It’s a computer world now and everyone uses a computer. He doesn’t know what information went to the public. People found his friend’s information and because of this they kidnapped his son. The applicant doesn’t know the reasons but suspects it was because of the data breach because the kidnap happened after it.
kk.The Tribunal put to the applicant that Section 91R(3) of the Act required it to disregard his religious activities in Australia, for the purposes of assessing his refugee claim, if the Tribunal is not satisfied he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. The applicant responded that this was not the reason he liked and loved the religion, and that it was his personal matter.
ll.The applicant’s Agent submitted that when people return from a western country they are perceived to have money and targeted as wealthy people.
mm.There is definitely a chance of being treated in a different way if he returns because he has not been there for a long time. When he goes back there will be a chance he will be persecuted at the airport as the people in power will know he is there.
Post-Hearing Submission, 4 November 2016
The applicant’s Agents sent a post-hearing written submission to the Tribunal on 4 November 2016. In summary it states:
a.Their pre-hearing submission outlined numerous factors to be taken into consideration in the assessment of the applicant’s credibility.
b.It is imperative to take into consideration that the applicant was held for a prolonged period of time in immigration detention, given the unfamiliarity of the environment he may have been apprehensive to forward his claims while in detention.
c.It is plausible the applicant was initially apprehensive to fully convey his protection claims however as he became more familiar with the process he was able to fully articulate them.
d.The applicant provided detailed evidence with respect to his past experience at his Hearing with the Tribunal.
e.The applicant was very genuine when providing information about the death of his brothers, his ex-girlfriend’s suicide and the issues he faced personally. It was evident he suffered great trauma in the past which has had an ongoing effect on him.
f.The applicant is a credible witness.
g.The applicant’s conversion is sincere and as such his conduct while in Australia should not be disregarded when assessing his protection claim.
h.His genuine conversion to Christianity would place him at risk of serious harm upon return to Bangladesh.
i.The Onshore Protection Interim Procedure Advice Number 36 with respect to Christian Converts from Iran outlines that it is important that applicants are able to provide knowledge of their faith however notes that there are many factors that often make it difficult for applicants to fully articulate knowledge of their faith.
j.The applicant was able to provide information about his faith and religious practice. Given language barriers it has been difficult for him to learn about his new faith in detail. It is evident he continues to wish to learn about and enhance his faith. This commitment indicates that his Christian beliefs are important to him.
k.Given the past issues suffered by the applicant and his family in Bangladesh, it is plausible that he yearned for a new faith and therefore upon learning about Christianity in Australia, he became drawn to it.
l.Country information in their pre-hearing submission indicates that Christians do continue to face persecution in Bangladesh. Despite having a Christian population, there are still issues for Christians especially individuals such as the applicant who have converted from Islam to Christianity.
m.In assessing the applicant’s profile it is imperative to take into consideration his circumstances, accumulatively, namely his past issues due to his relationship with [Ms A], his political beliefs and the fact he converted to Christianity. He and his family have faced past harm in Bangladesh due to these reasons.
n.Given the importance of honour in Bangladesh, especially for an influential family such as [Ms A]’s it is highly conceivable her family still want to seek revenge against the applicant. They would be able to use their ties and influence to ensure the applicant was subjected to serious harm.
The applicant submitted a copy of his Bangladeshi Birth Certificate with an English translation, confirming he was born [in] Kishoreganj on [date].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave his evidence in the Bengali language and submitted a copy of his Bangladeshi Birth Certificate. On the basis of this evidence the Tribunal is satisfied the applicant is a national of Bangladesh. The Tribunal assesses the applicant’s claims against Bangladesh as his country of nationality and receiving country.
Credibility
BNP support
The applicant claimed he and his family supported the BNP. He provided very little information about the BNP and his claimed activity and support for the BNP. His evidence regarding his involvement with the BNP was very vague. He spoke of going with senior people to meetings they would organise every 2 or 3 or 6 months. When asked about the meetings he merely stated that he would go there and listen with no further detail.
When asked if would support the BNP on return to Bangladesh the applicant responded that he did not know much about politics. When the question was repeated he then replied, yes because he thinks it is good. When asked why he would support them on return he merely state that they ‘did good things’ and there was peace when they were in power. He did not articulate any BNP programmes, policies or goals that he adhered to or admired. When asked why he would support an Islamist based party given his claim to have converted to Christianity he did not provide a response apart from stating he would not say much about religion.
In view of the vagueness of the applicant’s evidence the Tribunal does not accept the applicant was or is a supporter of the BNP or that he had any involvement or interest in the BNP in Bangladesh. The Tribunal does not accept the applicant is a BNP supporter.
The applicant also referred to his brother being killed in 2004 by a group when he was with three other people, including a BNP supporter, in a boat. While the applicant’s details about the claimed incident were somewhat vague and confused the Tribunal considers he was only about [age] at the time so may have difficulty recalling the event clearly. The Tribunal gives him the benefit of the doubt that his brother was killed by a group of men while in the company of a BNP supporter.
Relationship with [Ms A]
The Tribunal found the applicant’s evidence regarding his relationship with [Ms A] vague, contradictory and implausible.
The applicant provided a very brief and vague description of [Ms A]. His evidence about how the relationship developed and how they would meet also lacked coherency. He initially stated that they met in secret, but when asked to provide details he then changed his evidence to state they met publicly in a school yard with other students around. As described by the applicant they had very little time together, having to speak quickly when they were close to the other’s side of the school ground or at water taps. Given this evidence the Tribunal considers they had almost no time to develop a relationship or to even get to know anything substantial about each other. As described by the applicant the relationship consisted of just occasional brief and fast comments to each other in the midst of other students. The applicant’s evidence was further inconsistent when he later stated that he and [Ms A] met in many places, many times. When the Tribunal tried to explore with him where the many places were, he again changed his evidence to state that they would just meet sometimes on their way to school or coming back from school.
The timeline the applicant presented was also confused. He gave evidence that [Ms A]’s brother first captured and attacked him in December 2006 or at the end of 2006. However he then stated that it was “three weeks later” and “less than a month” later that in March 2017 [Ms A] asked him to elope with her. The Tribunal also finds it implausible that a boy [at that age] would pursue a relationship amidst threats and beatings, and agree to elope at such a young age.
In view of these concerns the Tribunal does not find the applicant’s claim to have been in a relationship with a girl [Ms A], and to have been threatened, captured and beaten by her family, credible. The Tribunal does not accept the applicant was in such a relationship in Bangladesh. It follows that the Tribunal does not accept that the applicant’s brother [Mr C] was killed in a conflict with [Ms A]’s family as claimed by the applicant. In addition the Tribunal does not consider it plausible that [Ms A]’s family, described by the applicant as wealthy and influential, would try to capture the applicant’s family’s land in 2008, a year after the applicant departed Bangladesh. The applicant’s explanation, that they did this so they could force the applicant’s family to give them information about the applicant lacks sense. The Tribunal therefore does not accepts that the applicant, his brother [Mr C], or anyone else in the applicant’s family have been threatened or harmed by [Ms A]’s family as claimed.
Christian conversion
The Tribunal found the applicant’s evidence regarding his claimed Christianity very vague. He was unable to explain why he became Christian beyond stating that “he liked it”. When asked why he liked it he did not give a responsive reply but spoke instead of hearing stories of Jesus from a friend. When asked again to describe what he liked about Christianity he then merely stated “I like the things, the stories about Jesus.” When then asked which stories of Jesus he replied “The stories about Jesus are about the way he was preaching the religion, he was helping people who were helpless and the eyesight of people who were blind” without further illustration. When asked if there was anything else he could say about this he merely stated “Yes there are lots of stories about Him.” When then asked which stories he liked he did not provide any examples stating only “I read a lot of stories about him and I like him.” The Tribunal found the applicant’s evidence provided very little explanation, almost none, as to why he had converted to Christianity.

The Tribunal then tried to explore with the applicant his reasons for preferring Christianity to his birth religion, Islam. However the applicant was unable to give any cogent evidence about this. He stated he did not know what it meant to be Muslim, had not practiced Islam, and did not have good knowledge of Islam, apart from the need to eat halal food, and a prohibition on drinking alcohol and smoking marijuana. When asked his opinion of Islam he responded that he did not understand the question. The question was rephrased and after a long pause the applicant replied that from what he knows Muslims pray and have to do things that are honest. He stated he had no views about the Prophet Mohammed and had never read the Koran. Given the applicant was born Muslim to a Muslim family and lived most of his life in a predominantly Muslim country, the Tribunal found his assertions to have almost no knowledge of Islam disingenuous.
When asked if he preferred Christianity to Islam the applicant stated that he found the attitudes of Christians better than that of Muslims, and that he was surrounded by Muslims in Bangladesh and considered the Christian attitude better. When asked how it was better he gave a vague response about mingling with Australian people and not seeing any bad behaviour, adding that he saw Muslims fight in [Country 1] but not Christians. The Tribunal found the applicant’s responses superficial with little about them to indicate any basis for adopting a new religion.
The Tribunal then tried to explore with the applicant the importance of religion in his life. He stated that he believed if someone understands what is good then he has to keep on doing it. When asked what the applicant did as a Christian he replied “Being a Christian. The rules and regulations. I try to follow them.” When asked what the rules are the applicant stated only “Praise on Sundays, some people go Sunday, some pray five times, or in the morning or the night.” The applicant stated he prayed five times a day, and sometimes twice. When asked how or what he prayed he gave no indication but stated it depends on what he is doing. When asked if he could say more about this he then stated “We make a prayer to the God” and started reciting something similar to the Lord’s Prayer. When asked if he could explain more about the praying he did he responded that he did a morning prayer. When the Tribunal asked him if he considered this similar to how Muslims pray he replied merely no. When asked how Muslim prayers were different he replied Muslims put a cap on the head and bow to the ground. The Tribunal found the applicant’s evidence demonstrated very little awareness or understanding of Christian practice and religious practice in general.
The applicant was asked if he had knowledge of any Christian teachings and beliefs and he responded ‘Yes’ with nothing more. The Tribunal then asked him what he knew and he replied “Jesus is the son of the God. His birth was a miracle.” When asked if he knew anything else he replied “There are many other things” without giving any further illustrations. The Tribunal then prompted him again to speak of what he knew but instead he replied “We have learned a few things and we try to learn more.” The Tribunal considers the applicant’s responses evasive and that his knowledge of Christianity is superficial and minimal.
The Tribunal also tried to further explore with the applicant his practice of Christianity. It asked him what he did apart from praying. His response “What else, I don’t know, we pray and believe in that religion” did not convey a sense that the applicant was meaningfully practicing Christianity. The Tribunal asked the applicant where he prayed and he spoke of attending a church in [Suburb 1] on Sundays and sometimes a church in [Suburb 2]. He stated he had last attended a church service on the Sunday before the previous Sunday. The Tribunal asked him what occurred at the service and the applicant’s response, that he did not know what the question meant, was evasive. When the Tribunal continued to ask him to describe his attendance at the church the applicant eventually stated that he prayed and followed the Father when the Father tells them what page to go to, and then they listen to the Father read aloud. The Tribunal asked the applicant what the Father read on the last occasion the applicant attended the church and he merely responded “stories about Jesus”. The applicant also could not give the name of the Father of the church he attends. The Tribunal considers that while the applicant may have attended church on occasion in Australia he was not able to demonstrate any actual religious or spiritual engagement with the Christian church.
The Tribunal notes the letter from [the Reverend] of the Anglican Parish of [Town 1], dated [July] 2014, which stated that the applicant had weekly classes to prepare him for baptism and confirmation in the [detention] centre; and that the applicant was baptised [in] June. The Tribunal accepts the applicant did have such classes in 2014 and underwent a baptism ceremony. However the Tribunal does not consider this persuasive evidence that the applicant has converted to the Christian religion or that he considers himself a Christian convert .
In view of the vagueness of the applicant’s evidence, his lack of knowledge of Christianity, and his lack of practice of Christianity, the Tribunal does not accept he has converted to the Christian religion, or that he has any interest in converting to Christianity or any interest in practicing Christianity.
Data breach
The delegate set out in her decision that the applicant’s name may have been released for a short period on the Department’s website in February 2014. Prior to the hearing neither the applicant nor his representative raised claims in relation to the data breach, however the Tribunal explored the matter with him.
It was put to the applicant that none of the details in relation to his protection claims and contact information had been made public. As set out in the decision of the delegate the information was the name, date of birth, nationality, gender and details about his detention.
The applicant provided a vague and speculative response that he doesn’t know what information went to the public but his information has been spread all over the world, so he is in danger anywhere.
The Tribunal accepts that in February 2014 a report was unintentionally released on the department’s website, disclosing detainees’ information including some of the applicant's personal bio-data information. However on the evidence before it the Tribunal does not accept that information about the applicant’s Protection claims was released.
Fear of Harm in Bangladesh
Christian activity in Australia
The Tribunal has accepted that the applicant attended baptism and confirmation classes while in the immigration detention centre in 2014; that he participated in a baptism ceremony in June 2014; and that he has occasionally attended church in Australia.
In view of the lack of genuineness in the applicant’s claimed religious conversion the Tribunal is not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregards this conduct in assessing the applicant’s claims under the refugee criteria. However it will have regard to it in assessing the applicant’s claims under the complementary protection criterion.
The Tribunal does not accept that the applicant is a genuine convert to Christianity or that he has any interest in practicing Christianity. The Tribunal has found that he engaged in Christian activities in Australia for the sole purpose of strengthening his claim to be a refugee. The Tribunal notes that the applicant will therefore not be returning to Bangladesh as a Christian convert or as a person who has an interest in Christianity or in practicing Christianity. The Tribunal is satisfied that if the applicant returns to Bangladesh he will not practice Christianity or be interested in practicing Christianity.
The Tribunal accepts that other Bangladeshis in the detention centre and/or the Australian community may be aware that the applicant attended Christian classes in the detention centre, underwent a Christian baptism ceremony, and occasionally attended a church; and that this information may also have become known to the applicant’s family or others in Bangladesh. However the Tribunal does not consider that this gives rise to a real chance of any harm to the applicant in Bangladesh given he has not converted his religion to Christianity. While people in Bangladesh may be curious about the applicant’s religious activities in Australia the Tribunal is not satisfied that their interest would be or would become adverse, in view of the fact that the applicant is not a Christian, has not adopted Christianity or Christian practice or any interest in Christianity.
The Tribunal is not satisfied there is a real risk the applicant would be subjected to significant harm in Bangladesh because of his brief and limited involvement in Christian activity in Australia.
Brother’s Death in 2004
The Tribunal has accepted that the applicant’s brother, [Mr B], was killed in 2004 by a group of men while he was in the company of a BNP supporter. The applicant has not raised any specific fears of harm based on this incident. As presented by the applicant the BNP supporter was the trigger for the killing, not his brother’s profile. The information does not disclose a threat to the applicant himself, then or now.
On the information before it the Tribunal is not satisfied that the killing of the applicant’s brother in 2005 gives rise to a real chance of serious or significant harm to the applicant on return to Bangladesh.
Returnee from a Western Country
DFAT’s latest ‘Country Information Report on Bangladesh’, published on 5 July 2016, includes the following:
Treatment of Returnees
5.21 Bangladesh accepts both voluntary and involuntary returnees. IOM’s Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.
5.22 DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.
The applicant’s Agent raised the claim in her written submission that the applicant would be at risk of harm in Bangladesh as a ‘returnee from the west’. Little expansion regarding this claim was provided in the submission apart from the statement that “Returnees are often the subjects of suspicion and kidnappings.” The applicant made no mention of fearing harm as a returnee from the west until he was specifically asked about this claim by the Tribunal at his hearing. When he first showed confusion about the question the Tribunal then asked his Agent for her comments. The Agent submitted that when people return from a western country they are perceived to have money and are targeted as wealthy people. She was unable to identify a source for this contention. The Tribunal then tried to further explore the issue with the applicant who eventually stated that there is a definite chance he will be treated in a different way if he returns to Bangladesh because he has not been there for a long time.
The Tribunal finds both the Agent’s submission and the applicant’s responses vague. Further, there is no other evidence or indication before the Tribunal that the applicant would be perceived to be wealthy because he has been in Australia or that he would be targeted as a perceived wealthy person.
On the evidence and information before it the Tribunal is not satisfied there is a real chance of any harm to the applicant in Bangladesh because he will be retuning there from Australia or ‘the west’.
Data breach
The Tribunal understands this claim to relate to the reported disclosure of information relating to applicants for protection by the Department in February 2014, when a routine report released on the Department's website unintentionally enabled access to some personal information about people who were in immigration detention in Australia on 31 January 2014 (the data breach). This information was accessible online for only a short period of time before it was removed from the website.[1]
[1] >
As discussed with the applicant, the information that was inadvertently disclosed on the Department’s website was his basic bio-data. There is no evidence before the Tribunal to suggest that any information in relation his claims for protection was published or accessed by anyone. The Tribunal does not accept that the Bangladeshi government has any information about the applicant’s claim for protection or the basis of his claims, or that he has made protection claims in Australia.
Even if the Bangladeshi government has knowledge of the applicant’s details from the website disclosure, and also suspects the applicant has applied for protection in Australia, there is no evidence or indication before the Tribunal that this would give rise to any adverse interest in the applicant by the Bangladeshi authorities.
The Tribunal is therefore not satisfied there is a real chance of any serious or significant harm to the applicant arising out of the temporary availability of the applicant’s information on the Department’s website in February 2014.
CONCLUDING PARAGRAPHS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Melissa McAdam
Member

[2016] AATA 4909

14 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction