1512035 (Refugee)
[2018] AATA 4343
•12 September 2018
1512035 (Refugee) [2018] AATA 4343 (12 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1512035
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Meena Sripathy
DATE:12 September 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 12 September 2018 at 3:46pm
CATCHWORDS
REFUGEE – Protection visas – Bangladesh – particular social group – separated women – defacto relationship – victim of child sexual abuse – children born out of wedlock – physical assault – family violence – fear or torture – honour crimes – fear of Islamic extremists – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 424A, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZGIZ v MIAC (2013) 212 FCR 235Any 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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The first, second and third named applicants who claim to be citizens of Bangladesh, applied for the visas on 19 May 2014. The fourth named applicant, who was born in Australia after the application was made but before the decision was made, was subsequently joined to the application. The delegate refused to grant all of the applicants the visas on 6 August 2015.
In respect of the second named applicant, this is his second protection visa application. He first applied for protection in July 2000 and his claims were assessed against the refugee criteria at that time and refused by the Department, and the refusal was affirmed by the Refugee Review Tribunal in May 2002. As a result of the decision of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, this applicant is eligible to be included in this application and have his claims assessed against the Complementary Protection criterion.
The first and second named applicants appeared before the Tribunal on 29 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicants were represented in relation to the review by their registered migration agent.
The issue in this case are whether any of the first, third or fourth named applicants have a well-founded fear of persecution in Bangladesh for one or more of the five reasons set out in the Refugees Convention (s36(2)(a)); and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to Bangladesh there is a real risk that they will suffer significant harm (s.36(2)(aa)) and/or whether any of the applicants satisfy s36(2)(b) or (c) on the basis of membership of the same family unit of an applicant who satisfies the refugee or complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information in the application form indicates the first named applicant (hereinafter referred to as ‘the primary applicant’) is [an age] year old woman of Bangladeshi nationality. She indicates she is separated and in a de facto relationship since [June] 2008. She speaks, reads and writes Bengali and is Muslim. She arrived in Australia in December 2008 on a student visa. She holds a Bangladesh passport, which has been renewed in Australia and is valid to [2018]. She indicates education to [specified level] only. She provides one address in Bangladesh and three addresses in Australia since her arrival.
The second, third and fourth named applicants claim to be members of the same family unit of the applicant and did not make any claims for protection of their own in the written application. The second named applicant is [an age] year old man and indicates he is married. The third named applicant is [an age] year old child, born in Australia and the fourth named applicant is [an age] year old child, born in Australia. The birth certificates of both children indicate the applicant and second named applicant as parents and states that they are married since [March] 2005 in Narayanganj Bangladesh.
In response to the question about harm experienced (Q44) the primary applicant provides the following information: She [has specified family members]. Her father was [an occupation]. He passed away in 2005 from [a condition] after a long illness and costly treatment. Almost all of his provident money was spent on his health care. At the time of his death only [one] sister was married. In 2006 her father’s close relative proposed marriage of his son to her. His name was [Mr A] and he was studying in Australia. He had no living parents. They were married [in] July 2006. She came to Australia as his dependent spouse. Her husband was sharing accommodation with the second named applicant.
In December 2007 she returned to Bangladesh and discovered her husband had another marriage. She was furious and when she asked him about it he became aggressive and abusive. She did not know what to do because she has no father or brother. After they returned to Australia he started suspecting her for speaking to other men. He tortured her physically and mentally. During this time the second named applicant was very helpful and she started to develop feelings for him and began living with him. Her husband suspected this and eventually moved out and he has now returned to Bangladesh. She states she fears harm from her first husband and the conservative Bangladesh society for engaging in an illicit relationship and living with another man without marriage. She fears she will be considered a bad girl and will face significant harm including torture, degrading and inhuman treatment. She fears she cannot get state protection in Bangladesh.
In a Statutory Declaration dated 6 December 2014 the primary applicant provides further details of her claims. The following information is included in this declaration: Her father’s close relative, [Mr B], brought the marriage proposal for her in 2006, suggesting a relative of his business partner. The suggested boy did not have parents alive and was studying in Australia. Her family relied on the information about him provided by [Mr B] and they were married in July 2006 in Narangonj.
She came to Australia in December 2006. Her husband was sharing accommodation with the second named applicant. He was working at a [business] and came home late at night. After about a month of her arrival he started to beat her for no reason. In 2007, when she spoke with her sister in Bangladesh, she told the applicant that she had heard her husband was married to someone else earlier. Her sister asked her to ask him about it. When she asked him he became angry. The applicant then asked the second named applicant if he knew about this. He told her someone had told him that he previously married.
During this time her husband wanted to buy a property in Bangladesh and forced her to sell her gold jewellery. She also borrowed money from her mother, who sold her father’s property and gave him money, which he refused to return. From this time the applicant’s relationship with her husband became worse.
After she came to Australia her husband applied for permanent residency. In December 2007 they returned to Bangladesh and her husband went to Chittagong to see his property. While there she came to know that he was married to someone else. She was shocked and upset but her mother told her to return to Australia with him and speak to him there rather than creating problems in Bangladesh because it would affect her siblings.
After they returned to Australia he started torturing her again, physically and mentally. When he saw her talking to the second named applicant he took her inside the room and held her neck and slapped and screamed at her. She wanted to call the police but he threatened to tell the police about the second named applicant’s immigration status and she did not want to cause problems for him so she did not call the police.
She came to know that her husband was addicted to poker machines and was having relations with other women in [a location]. She went back to her mother but her mother told her she could not bear her expenses and not to come back. She decided not to contact her family anymore and to stay here.
At the end of April 2008 her husband hit her with a fork for arguing with him for having two families. He warned that if she called the police he would kill her. He started saying bad things about her and the second named applicant. Because of these problems she started talking more to the second named applicant. Eventually a relationship between them developed in 2008.
From July 2008 she decided to stay with the second named applicant and moved into his room. Her husband couldn’t face them and moved out. After that he sometimes called and threatened to inform the police about them. In the meantime she heard that his immigration application had been refused because he provided false documents. Because of this reason he did not want to contact police or immigration about them because he was worried they would imprison him for providing false documents. She heard he returned to Bangladesh in 2010.
In April 2014 she contacted her mother for the first time since she stopped speaking with her in 2008. She contacted her to tell her she was leading a happy life with the second named applicant and was carrying a baby. When she spoke to her mother, she told the primary applicant that her former husband contacted her in Bangladesh and told her she has ruined his life and his plans to get permanent residency and that he would kill her if she returned to Bangladesh. The primary applicant’s mother told him she had disowned the primary applicant. Her mother also told her he spread false rumours in Dhaka about her. The primary applicant started fearing for her life because she was unlawful and if the Department found her they would send her back to Bangladesh and he would kill her. She was afraid that if she returned his friends in Australia would inform him and he would come looking for her.
Because she is in a relationship outside of marriage the primary applicant restricts her movements and associations. They do not generally go outside as a couple. They are fearful that if other Bangladeshi people came to know about their relationship they will vilify them and curse them.
The primary applicant is fearful if she returns to Bangladesh with her family they will face serious harm including torture, degrading treatment and possibly death. She fears because of rumours spread by her former husband, she will be targeted by Islamic extremists for not leading a life according to Islamic traditions. She fears she will be targeted by Islamic extremists and Bangladeshi society for having children out of wedlock and as a woman who engaged in activities against Islam. She does not believe she can get state protection because the police will treat it as a domestic issue and she will face practical impediments to relocate because she has small children.
She also fears harm from her former husband because he may take revenge against her for ruining his life. She believes he married her for money and thought her degree and English skills may get him more points for his permanent residency application. He now thinks she was the one who ruined his career and she fears he will target her and her family.
The applicant was interviewed by an officer of the Department and an audio recording of the interview is on the Department file. The Tribunal has listened to a recording of the interview.
On 23 March 2018 the Tribunal received a submission and a medical certificate from [Doctor C] dated 1 March 2018. The medical certificate indicates the primary applicant has been a patient of [Doctor C] for 5 years and has, during this time, had episodes of depression, stress and anxiety for which she has required psychological counselling, and which has impacted on her memory capabilities. The certificate also indicates she has had episodes of anxiety related to insecurity at the thought of returning to her home country.
The submission provides further country information relating to circumstances for women in Bangladesh relating to gender based violence, rape and domestic violence in particular. The submission argues that based on the country information targeting particularly women like the applicant, (sic) “would face a significant fear of harm which would adversely affect their personality.” The applicants fear significant harm including torture , degrading, inhuman and cruel ill treatment and abuse from the primary applicant’s ex husband and his family, relatives, Muslim extremists and the conservative Bengali society due to the primary applicant’s circumstance as a woman who is perceived as transgressing traditional and enshrined Bengali and Islamic values and that she would be considered a morally corrupt woman because she lives in a de facto relationship with her partner and has lived in Australia in a western culture. It is submitted that there is a strong possibility that her ex husband or his family would take revenge against her or her family if she returned to Bangladesh. The submission argues that the applicant is at risk of harm from various actors, her ex husband, his family, extended family and Islamic extremists and its agents and refers to various kinds of harm including honour crimes/acid crimes. Various documents providing statistics of violence against women in the period January to December 2017 were also provided.
Tribunal hearing
At the hearing the primary applicant was asked at the outset if there was anything she wished to change or add to her application. She said there was nothing.
She is living at the same address in [Suburb 1] as at the time of application. She lives there with the other named applicants, who are her partner and children, and another Bangladeshi family, comprising a couple and their [children]. Previously they had students living there but since 2014 it has just been the two families.
She is not working. She is financially supported by the second named review applicant who works casually [in specified jobs]. She has no family in Australia.
In Bangladesh she has her mother [and siblings]. Her two sisters married prior to her and have [number] children each. Her eldest sister married before her father died in 2005 and her younger sister was married soon after his death. The Tribunal noted that she had not mentioned her younger sister marrying before her in her written statement. In the written statement she mentioned only her elder sister was married when father died and that her marriage was arranged in 2006. The applicant explained that her younger sister was good looking and the subject of ‘eve teasing’ and so they wanted to marry her off as soon as possible so she would not have further problems. She lives in Dhaka with her husband and children and the elder sister lives in Narayanganj with her husband and children. The applicant’s mother lives with her [brother]. They live in her [grandparents] home. Her [uncle] and his family were also living there, but she came to know her [uncle] passed away around the time she spoke with her mother in 2014, just before the Department interview.
The Tribunal asked the applicant about other extended family she has in Bangladesh. [Family event deleted.] She only came to know about this when she resumed communication with her mother in 2014. The Tribunal noted that she had not mentioned this in her written statement or in her evidence to the Delegate at interview. She agreed she had not. Apart from these relatives, her mother has [siblings] who live close by to her. Her father has only one brother, who lives in another village, not so close by and he has little contact with the family.
The Tribunal asked the applicant about her first son’s birth certificate and why he does not have his father’s family name. She said they chose his name and decided on this one. She did not realise the need for his father’s family name, and then when they were asked about it, they decided to give the second child his name. The Tribunal asked why the birth certificate indicates she and the second named review applicant were married in 2005 in Bangladesh. She said she put that information in the certificate because she did not want her sons to know his parents were not married when they had him. She did not think of the consequences of this information being incorrect. She acknowledged that it was incorrect information because the second named review applicant has not left Australia since he came here in 2000. The applicant said her partner didn’t even know about this, she only told him after the Department interview. He just filled out the form.
The Tribunal put to her, given that her previous partner, [Mr A] departed Australia in September 2010 and the child was born in [2011], it appears to be possible he is the father. She denied this. She said she is the mother and she knows he is not the father.
The primary applicant confirmed her education. She completed her [course] in 2002. She started a [higher level course] but had to stop because of financial difficulties. She then did some tuition work, and returned for another year of study before stopping again. She did not complete her [higher level course] because of money issues. She last studied in 2004. The Tribunal asked her if she made any applications for visas in this time. She said she applied for a student visa three times in 2004 and 2005 and was refused. Her father’s cousin, [Mr B] helped her to make these applications. When asked why he was helping her she said he was well educated and he liked her father and wanted to help by getting one daughter educated. Her father borrowed a lot of money and they still owe this relative money.
The Tribunal asked the applicant why she is afraid of returning to Bangladesh now. She said her ex husband threatened harm to her and her family and she is also afraid of the local Islamic community. She also said when [a family event occurred], this gave another reason for the conservative Islamic community in her area to be against her family. When asked why [this family event] would cause risk of harm to her, she said the community is against not just her but the whole family and the shame she has brought just adds to their reasons for being against them. When asked to clarify who ‘the community’ is she said she is referring the to the union committee associated with the local mosque. She is also afraid for her children. She believes they will be teased and ridiculed because of the rumours about their mother being a prostitute in Australia and they will be accused of having different fathers for this reason. She said her ex husband has a lot of money and is a powerful man. He has threatened her mother and he has threatened her brother also. When asked to elaborate on these threats she did not given any further details. When asked if any physical harm has befallen her mother or brother she said no. She is just scared that her ex husband will be able to use his influence and power to harm her and her family.
The Tribunal discussed with the primary applicant the information provided in her claims. She said after her father died her mother was trying to do something for her sister because she was quite beautiful and was getting trouble for this so when a good proposal came for her they agreed for her to marry first. The same uncle, [Mr B], arranged both marriages. She was married in 2006. She did not meet her husband before the marriage. It was done by telephone. She met him for the first time after the marriage when he came from Australia. The Tribunal noted that at the Department interview she gave different evidence. There she said she was very sure he was physically present at the marriage, and only changed this when the delegate put information from the file to her which indicated he was not there. She acknowledged this and she was nervous and tense at the interview and she must have mistaken his later visit with this time. She agrees now that he was not present at the marriage.
She came to Australia December 2006. She came to live at [an] address in [Suburb 2]. It was a two bedroom apartment. Her husband and the second named applicant were living there and there was another student named [Mr C]. He was sleeping in the living room, but after she came he moved in to share the room with the second named applicant. He then left for Bangladesh to marry and never returned. After this address she moved with the second named applicant to another address in [Suburb 2]. Just she and the second named applicant moved, this was in July 2008 when she left her husband. Here they shared a 3 bedroom house with another Bangladesh couple and various other people. From this address they moved to their current address in [Suburb 1] because the rent was increased.
The Tribunal asked about the circumstances of the relationship with her husband after she came to Australia. She said initially it was good. Then after a month or so they started to argue more. She also heard things from her country. She heard that her husband was married already to someone else and that he had a son from that relationship. She thought it was only rumours at first. They had arguments and he became aggressive towards her.
The Tribunal asked about her husband’s abusive behaviour. She said first he started to slap her. No one was present when he first did it. After some months he did not care to hide it and did it in front of the others in the house. The second named applicant saw it and so did the other man, [Mr C]. They did not say or do anything. They considered it a family matter and did not want to get involved.
The Tribunal asked what she was doing after coming to Australia. She said she was not working or studying. He would not allow her to do any of these things. She knew nobody and was isolated. He asked her for money and also borrowed money from her mother to buy property in Bangladesh. They travelled back together in December 2007. At this time they were still in a relationship. He treated her badly at times and at other times he was okay. During this visit to Bangladesh she came to know that he did in fact have another family. He left her [and] went to Chittagong. While he was there she tried to ring him and she spoke to a woman who confirmed she was his wife. She told her mother about this and told her she did not want to go back to him because he cheated her. She had confronted him about this before and during the visit to Bangladesh. He told her not to bother him about it and to accept what he gives her. Her mother also told her to just accept it and stay with him. Her mother told her she cannot face the community if she leaves him.
The Tribunal asked the primary applicant why, if he had a wife and child in Bangladesh, did he marry her and include her on his permanent residence application. She said she does not know. She said she has been thinking about this and perhaps it was because he thought he could get extra points because of her education. He made her sit the IELTS test in December 2007.
When she confronted him after coming back to Australia, her husband told her he will not give up his family for her and she can go if she wants to as he has no bond with her. The primary applicant said she spoke to her mother and got no support from her. Her mother told her to put up with it and she had a better life in Australia. Even when she told her mother he beat her, her mother said she should stay with him.
The primary applicant referred to the incident with the fork. He hit and cut her that time. The only people who knew about the violence was the second named applicant and the other flat mate but they never called the police or referred her to any services. When asked why not, she said the second named applicant was afraid for himself because of his unlawful status.
The Tribunal asked the primary applicant how the relationship developed between her and the second named applicant. She said he was around when all of this was happening and when her husband was not there they talked. He gave her advice and support. He reassured her it would get better. The Tribunal asked how she came to start a physical relationship with him given the atmosphere of violence she has described. It put to her that this appears to be very bold to have a relationship while still living in same house. The primary applicant did not directly answer the question.
She said that [Mr A] threatened to call the police and Immigration but he never did. When asked why not, she said she doesn’t know. He then moved out and they stayed on at the [first Suburb 2] address for a short period, and then moved to [a second address in Suburb 2].
When asked when she next saw [Mr A], she said he was pleading with her about his immigration application. He wanted her to continue with him on this application. The second named applicant encouraged her to continue to be included in this application and to do what [Mr A] wanted her to do regarding this application.
The Tribunal put to the applicant that there are two conclusions it could reach about this – that she was prepared to provide false information to obtain a migration outcome for herself or that she was in fact not separated form [Mr A] at this time. The applicant denied both, and said that in fact the reason for her actions was that [Mr A] had threatened the second named applicant and she did not want him to be affected. She also said she had no one in Bangladesh and she could not go back there.
She said he would call the second named applicant in the middle of the night and curse him and threaten him. The Tribunal asked the applicant why he did not carry out his threats to tell the authorities about the second named applicant’s migration status if he was so angry. She offered no further explanation. She said when she contacted her mother, her mother told her that he had been contacting her and telling her the primary applicant was a prostitute and doing bad things here. He also threatened her brother. Her mother made no complaints to the police about these threats.
The Tribunal asked the primary applicant if she had thought about getting a divorce from her former husband. She said yes, she filled out some forms about this last week. When asked why she has waited so long, she said that she was very stressed previously and also there were financial constraints. When asked if, once she is divorced, she would consider marrying the second named applicant, she said she would.
The Tribunal asked what problems she and the children face if returning to Bangladesh as a married family unit. She said she is afraid that there are rumours about her and already her mother and sisters have given up on her because of what her former husband has spread about her. She is afraid that they will be harmed by the community.
The Tribunal asked the primary applicant about the second named applicant’s family in Bangladesh. She said he has [specified family members] but he is not in contact with them and has not been for a long time. Then she said that they have not spoken with him because of the circumstances of his relationship with her. They believe that she has trapped him to be involved with her and that she was already married to another man.
She reiterated her fear is from her former husband, the Islamic community and her own family. She is afraid for her [children] who will suffer mentally because of what people will say about her.
The Tribunal asked the primary applicant if there was anything else she wanted to tell the Tribunal about why she cannot return to Bangladesh. At this point the primary applicant said she was abused when she was [age] by a teacher, along with her [sister]. They told their mother but her mother told her not to tell anyone. Then when she was in [grade] at school she was again abused by a teacher. She told her mother again and was told by her not to say anything. The applicant stated that this is what happens in Bangladesh. They are told to just ignore it and carry on. [After that family event] everyone said not to say anything because it is considered shameful. Her mother again did the same thing when she told her about [Mr A’s] treatment of her. So she never protested against anything. She said, maybe she should not have gone with the second named applicant, and that was her mistake but at the time she thought that it was her best option. When [Mr A] asked her to cooperate with his visa application they were very afraid and cooperated out of fear. They did not know if he would report them or the second named applicant to the police or immigration and whether they would go to jail so they did what he told them to do.
Evidence from the second named applicant
The second named applicant confirmed his address to the Tribunal and that he lived here with the primary applicant and their two children and another Bangladeshi couple. Previously another Bangladeshi man lived with them also. He confirmed his own migration history as follows. He came to Australia in 2000 and applied for a Protection visa, which was refused. He appealed that decision to several levels, all of which were unsuccessful. He cannot now recall when it was all finalised but he remained here since then, without lawful status and working casually. He has not left Australia since he arrived in 2000. He has no family in Australia.
In Bangladesh his parents are deceased. He has [specified family members] but is not in communication with them. When asked when he last had communication with them he said it was before he met the primary applicant, around 2007. When asked why he has not had communication with them since then, he said it is for so many reasons, including financial. They wanted him to send more money and he could not. Then the second named applicant said it was also because he had said something about meeting the primary applicant and having feelings for her and they did not approve of that. The Tribunal noted that this contradicts his earlier evidence that he last communicated with them before he met the primary applicant. In response he said, he may have spoken with them again after he met her and they did not approve. He has no contact with his family now.
The Tribunal asked how he came to meet [Mr A]. He said he was working at [a business] and the second named applicant was doing [specified] work in the city and they met through other Bangladeshis. The second named applicant was living at that time at [the first address in Suburb 2] and [Mr A] came to share here. Another friend [Mr D] also lived with them at this address. There was also another man named [Mr C] who lived with them but he returned to Bangladesh and never came back to Australia and after he left, [Mr A] came to share. When the primary applicant came to Australia there was only himself, [Mr A] and her, no one else was living at the [first Suburb 2] address.
When asked what he observed of the relationship between the primary applicant and [Mr A], he said the first few months were fine, but after that something seems to have happened and they argued a lot and had many disagreements. When asked if he observed [Mr A] physically abusing her he said he did. One day he hit her with a fork. He saw him hit and mistreat her many times. He also heard things about [Mr A] from other people in the community. One day [Mr A] took him to a shop in [another suburb], and when he told the shopkeeper he lives with [Mr A] and his wife, the shopkeeper said he has a wife in Bangladesh.
Despite seeing the violence against the primary applicant, the second named applicant did not intervene or call the police because of his own fear about his unlawful status. He told the Tribunal if he had legal status here he would definitely have gone to the police about [Mr A]. The Tribunal asked if he ever suggested to the primary applicant any place she could seek assistance from, given he had lived in Australia for so long. He said he didn’t because he was afraid for himself and did not want to get involved. He then said he was not physically afraid of [Mr A], only that he could inform on him.
After a while he was spending a lot of time with the primary applicant and they became close. He was giving her advice about her situation and trying to encourage her to bear with it and that it would get better. [Mr A] had some bad habits at the time and he was drinking and out a lot. Eventually he started to have feelings for her and at some point his feelings became stronger and he did not care anymore about what [Mr A] would do. The primary applicant and he discussed it at length and made a plan about how to deal with the situation. They looked for a place to live together. Only after that they talked to [Mr A]. The second named applicant said he told him that up until now he had supported him but he can no longer and they had decided to live together. [Mr A] did not take it well. He stayed at the unit and they moved out. After that he did not see him again, but he heard from others in the community that he was threatening them.
The Tribunal asked the second named applicant if he ever had any problems with immigration after this. He said in around 2015 somebody came from the Department to check on him, but by this time he had lodged his application and had a bridging visa. The second named applicant has no idea why they came but can only assume that [Mr A] may have told them something. He confirmed that he had no issues with immigration from 2008 to 2014 prior to lodging the application.
Although he had no face to face contact with [Mr A] after this, he was aware that the primary applicant had some contact with him because he was aware that she had made a permanent visa application with him, as his wife. The friend [Mr D] was involved in this and he asked him to allow the primary applicant to cooperate and support the application. [Mr D] told him that if he did not then [Mr A] would not leave him alone. So the primary applicant and he decided to do what [Mr A] wanted to keep him happy so that he would not cause problems for them. The second named applicant said he did not know why or how the primary applicant helped [Mr A’s] application. He is aware that [Mr A] has now returned to Bangladesh.
The Tribunal asked the second named applicant about his son, born in [2011]. It put to him that information before the Tribunal indicates [Mr A] did not depart Australia until September 2010, and on this basis it may be possible he is the father of this child. In response the second named applicant stated adamantly that he knows he is the father of his child. He took the primary applicant to his GP, who he has been seeing for many years, [Doctor C], and if necessary he is willing to do a DNA test to confirm his paternity.
The Tribunal asked the second named applicant if he has considered marrying the primary applicant. He said they have discussed getting a divorce from [Mr A] for her, but the issue is financial constraints. He is very prepared to marry her when he can.
The Tribunal asked why he cannot return to Bangladesh. The second named applicant said he has lost his whole family over this relationship. When put to him that this contradicts his earlier evidence that he had lost communication with his family years ago, before meeting the primary applicant, over many issues including financial issues, he said those matters can be forgiven. But if they came to know that he formed a relationship out of wedlock with married woman and had children it is an unforgivable offence and his family would never accept him. When asked why they cannot go elsewhere in Bangladesh away from their families, he said they cannot go anywhere for fear of people finding them and their children will be treated badly because they were born out of wedlock. Even if they marry now their birth dates would reveal the parents were not married when they were born.
When asked who would find out about their history, who he is afraid of, the second named applicant said he is afraid on [Mr A] because he is a rich and powerful person in Bangladesh and he will find him and cause harm to them. He said life is very hard for him here and if he could he would return to Bangladesh but he cannot for these reasons. He is afraid for himself, their family and the children because Islamic groups are very powerful there. When put to him that [Mr A] did not harm him despite plenty of opportunity to date, the second named applicant said that is only because they didn’t cross lines with him.
Following the hearing the Tribunal wrote to the applicants, under s424A of the Act, to give them particulars of information which, if relied on, would form the reason or part of the reason for affirming the decision under review. The Tribunal provided particulars of information contained in the Department file relating to information the primary applicant provided in [a previous] application, and evidence she gave to the MRT at the review relating to that application; information from Departmental movement records before the Tribunal; and evidence given by the second named applicant to the Tribunal. It explained the significance of this information if relied on by the Tribunal and invited their comments or response.
On 9 May 2018 the primary applicant provided a Statutory Declaration in response and supporting documents. In her statutory declaration the applicant responded that the information provided in the Form 80 was prepared by her former husband and that she signed this form and cooperated in his application and review under duress due to his threats against her. She acknowledged that she and the second named applicant provided incorrect information in their children’s birth certificates that they were married but explained it was only to protect their children from the fact that they were not married as they were afraid this could cause shame and hardship for their children were it to become known they were born out of wedlock. Regarding the inference that her former husband may be the father of her children the primary applicant emphatically denied this and indicated they were willing to do a DNA test to prove the second named applicant’s paternity. The primary applicant stated that the second named applicant gave incorrect information in his evidence about who was living in the house when she and her former husband came to Australia and when her former husband moved out, but this was because he was under a lot of stress and suffers from memory loss and mental health issues. She submits these are minor inconsistencies in their evidence and should not reflect adversely on their credibility. She acknowledged that her former husband did not inform the Department about the second named applicant’s unlawful status, but submitted that this was because he may not have wanted adverse allegations about him to be made which may affect his chances to come back to Australia in future. She maintains that they are fearful of what he could do to them upon return to Bangladesh however.
The primary applicant in her Statutory Declaration submits she faces a real chance of significant harm in Bangladesh because she was a victim of child sexual abuse and she is fearful of she and her children becoming destitute and exposed to sexual abuse on the streets in Bangladesh. She is fearful of her former husband finding her and taking revenge or hiring criminal miscreants or religious fanatics to take action against her. She fears Islamic extremists who would consider her an infidel because of what her former husband says about her. She is fearful of domestic and family violence against her because of her illicit relationship with the second named applicant and having had children out of wedlock.
Supporting documents submitted include a Medical History report relating to her pregnancy, indicating the second named applicant as the “person for notification” and Immunisation History Statement addressed to the second named applicant relating to ‘his child’ and an application for DNA testing.
On 16 May 2018 the applicants provided to the Tribunal the results of a DNA test taken which confirms the second named applicant is the likely genetic father of the third named applicant.
FINDINGS AND REASONS
A summary of the relevant law is set out in the Attachment to this decision.
Nationality
The Tribunal accepts that all of the applicants are nationals of Bangladesh on the basis of the primary applicant’s oral evidence and their current Bangladesh passports (issued in [2015] and valid to 2020) presented at the hearing. It considers Bangladesh is the country of nationality and receiving country for the purpose of assessing the applicants’ claims against the protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The primary applicant’s claims in summary are as follows: she was married to [Mr A] in July 2006. [Mr A] was the holder of a student visa and the applicant entered Australia in December 2006 as his dependent spouse. Soon after her arrival she claims that [Mr A] started to beat and mistreat her and she was subjected to ongoing domestic violence at his hands. This abuse was witnessed by the second named applicant but he never informed police or advised her to seek help from any other service or organisation, due to his own fear of exposing his unlawful migration status. She commenced a relationship with the second named applicant from around 2008, which [Mr A] was not happy about, and they have had two children together since then. The applicant’s former husband pursued a [different] visa application they had made together in December 2006, and forced her to continue to support the application through the review process despite the relationship being over. She claims she did this under duress due to threats he will reveal the second named applicant’s status to Immigration. [Mr A] departed Australia in 2010 and has been spreading lies and bad stories about her to her family and the community since then. The primary applicant fears return to Bangladesh because she fears harm from [Mr A] and extremist elements from the Islamic community who would not approve of her relationship with the second named applicant out of wedlock and that they have had two children together. She fears physical harm and degrading treatment and possible death. She fears her children will face ridicule and discrimination and suffer psychological harm as a result of what people will say about her. The primary applicant also made claims at the Tribunal hearing that she was the victim of child sexual abuse and is fearful of her and her children being subject to destitution and family violence upon return to Bangladesh. The second named applicant fears his family will reject him if he returns because of the circumstances of his relationship with the primary applicant and that they had children out of wedlock and he fears harm from the primary applicant’s former husband because he is rich and powerful.
Having considered all of the evidence before it, including written and oral evidence before the Department and contained in relevant Department files and the oral and written evidence to the Tribunal, the Tribunal makes the following findings relating to the applicants’ material claims.
Claims of marriage to [Mr A]
On the basis of the marriage certificate and Nikah Nama lodged with the Department in relation to the applicant’s [previous] visa application [[file number]] (copies of which were included in this Department file), the Tribunal accepts the primary applicant and [Mr A] were formally married. However when asked about this marriage by the delegate at the interview her evidence contradicted the documentary evidence. She told the delegate at interview that her former husband was present in person for the marriage. The delegate then pointed out that the documents submitted indicated the ceremony took place by telephone and records show her husband was in Australia at the date of the marriage. Before the Tribunal the applicant corrected herself and stated that the marriage was conducted by telephone and she did not meet her husband until after the marriage when he came from Australia. When the inconsistent previous response was put to her for comment she explained that she may have mistaken his visit with the honeymoon trip following the marriage and explained that a significant period of time had passed and her memory is not so good. The Tribunal has considered her response and the medical certificate dated 1 March 2018 from [Doctor C] referring to the impact of her stress and anxiety on her memory capabilities, but nonetheless finds concerning her inability to recall a detail as significant as whether her husband was present in person or not at their marriage. The Tribunal accepts that a formal marriage occurred between the applicant and [Mr A] and that it was a marriage conducted by proxy, as the groom was in Australia on that date. However, the discrepancy and inconsistency in her recollection of the marriage causes the Tribunal to have doubts about the genuineness of the marriage relationship. These doubts are compounded by its concerns about other claims, including her domestic violence claims, discussed below.
Claims of domestic violence at the hands of [Mr A]
The primary applicant claims that she was subjected to domestic violence at the hands of [Mr A] from soon after her arrival in Australia in December 2006. She claims that she was subjected to domestic violence at the hands of [Mr A] until around mid-2008. She never sought assistance from the police or any other service provider about the domestic violence and has no supporting evidence other than the testimony from the second named applicant who lived with her and her husband and apparently witnessed his abuse. The second named applicant stated in his evidence to the Tribunal that he lived with the applicant and [Mr A] during this period and saw him physically abuse her. He described an incident involving him hitting her with a fork and stated that he often saw [Mr A] hit and mistreat her.
In considering this claim, the Tribunal has concerns, arising from inconsistencies and differences their accounts, about the reliability and credibility of the primary and second named applicant’s evidence. They gave inconsistent evidence of who was living in the unit when the applicant came to Australia and who witnessed the domestic violence. The applicant told the Tribunal that another flatmate, named [Mr C], was also living there initially and he also witnessed the abuse, together with the second named applicant. However the second named applicant, in his evidence to the Tribunal, said [Mr C] left the unit and Australia before [Mr A] moved in and he was not living with them with the applicant arrived in Australia in December 2006. The applicant and second named applicant’s evidence of the relationship between the two of them during this period was also inconsistent. In her written statement and evidence to the Tribunal she said the relationship between herself and the second named applicant started from July 2008 and she moved into his room while they were all living together at the unit. She said [Mr A] moved out of the unit when confronted about the relationship by the applicant and second named applicant, and they stayed on for a while before also moving out. However the second named applicant’s evidence to the Tribunal was quite different. He indicated that while he and the applicant became close during this period when they all lived together at the unit, they did not share a room together there. They made a plan together and then told [Mr A] and then they moved out of the unit and [Mr A] stayed there. When these inconsistencies were put to the applicants following the hearing, the primary applicant responded with a statement explaining that the second named applicant was under a lot of stress and has memory issues and his responses were not accurate. She reiterated her account and submitted that these are minor inconsistencies and should not affect the outcome of the matter.
The Tribunal has carefully considered the inconsistencies and the explanations provided. It also takes into consideration the overall scenario of her claim. The primary applicant claims since coming to Australia she was subjected to sustained domestic violence at the hands of her husband, witnessed by two flatmates. She claims she subsequently started a relationship with one of these flatmates, who is the second named applicant in this application. However, despite witnessing the domestic violence over a period of 18 months and developing feelings for this woman, the second named applicant at no stage called the police or encouraged the applicant to call police nor gave her any advice or assistance to find support services. Given that the second named applicant had been residing in Australia for many years by this time (and had considerable experience with the legal system having applied and appealed against his protection decision a number of times) it would not be unreasonable to expect him to have some knowledge of where and how the applicant may be able to seek assistance. The Tribunal has considered their explanation that the second named applicant did not do so solely because of his own fear of having his unlawful immigration status exposed, but it does not accept this as plausible or credible. With regard to the plausibility of the domestic violence claim, the Tribunal is mindful that domestic violence can be perpetrated over many years and endured by a victim without seeking assistance or escape for many reasons, and in particular a newly arrived migrant is particularly vulnerable, by reasons of language barriers and social isolation, to suffer in silence. However, the Tribunal has also taken into consideration in this case other aspects of the primary applicant’s evidence, including the above mentioned inconsistencies relating to material aspects of the evidence of who was living in the apartment at the time and who moved out from the apartment first, and has concerns (referred to earlier) about whether the marriage relationship between the applicant and [Mr A] was ever genuine. Taking all of this into account, in this case it is not satisfied, on the evidence, that the applicant was subjected to domestic violence at the hands of her former husband as claimed.
The evidence that the primary applicant continued to participate in the [previous] visa application lodged by her former husband adds to the Tribunal’s concerns about the credibility of her claims. The primary applicant was included in a [permanent] visa application lodged by [Mr A] in December 2016, as his dependent spouse. The evidence before the Tribunal shows her signature on a Form 80 lodged with the Department in February 2009. She attended and gave evidence, as his wife, to the Migration Review Tribunal in support of his [previous] visa application in November 2009, and attested to his good character. File notes indicate she attended the Department Compliance counter with him in July 2010 and represented as his wife. This evidence contradicts her claims that they had separated in July 2008 and he was violent towards her and she was afraid of him. The Tribunal has considered the primary applicant’s response to this, provided in her Statutory Declaration dated 17 May 2018, that she continued to support her former husband’s application and present as his wife in this period under duress due to blackmail threats by him to expose the second named applicant’s unlawful status, however the Tribunal does not accept this explanation. It is not supported by the evidence before the Tribunal. She provided no explanation and it is not apparent from the material that the applicant’s participation in the application increased the chance of success of [Mr A]’s application (although the Tribunal acknowledges that she gave oral evidence to the MRT to support his credit). On the other hand, the success of his application would lead to a clear benefit for her if she was his dependent spouse. This suggests that she had a self- serving motive to continue to cooperate with the application in the manner that she did.
The Tribunal also observes that there is no evidence [Mr A], or anyone else on his behalf, informed the Department of the second named applicant’s unlawful status anytime between 2008 and 2014, including after [Mr A’s] departure from Australia in 2010, which also does not support the applicants’ claims that he harbours vindictive or hostile intent towards the primary applicant or the second named applicant.
Claims the applicant and second named applicant are in a de facto relationship and have two children together
The Tribunal accepts the primary applicant and second named applicant are in a de facto relationship and have been living together in a relationship since approximately mid 2008. It accepts this on the basis of their oral and documentary evidence and the existence of two children of the relationship. Regarding the children, the Tribunal initially had some concerns about the paternity of the first child, given the timing of [Mr A’s] departure from Australia and birth of this child, and different surname recorded on the birth certificate. However, in response to this issue, the applicants (at their own initiative) undertook a DNA test and on the basis of this evidence the Tribunal finds that this child (the third named applicant) is the child of the applicant and second named applicant. The Tribunal also accepts that the fourth named child is a child of the relationship.
Claims applicant’s former husband threatened her via her mother
The primary applicant claims that her former husband had been contacting her mother and telling her she was doing bad things in Australia and that he told her mother he would kill her if she returned. She said he had also threatened the applicant’s brother. However neither her mother or her brother made any complaints to the police about these threats and the only evidence before the Tribunal about this is the primary applicant’s assertions. The primary applicant’s evidence is that she lost contact with her mother for some years after arrival in Australia and only had contact with her again in 2014. She provided in her written statement that she contacted her mother in April 2014 to inform her she was carrying a baby and at that time was informed of the threats and bad things that [Mr A] was saying about her. The Tribunal is not convinced that the applicant is telling the truth about her contact with her mother. There is no explanation why she did not contact at the time of birth of her first child in 2011 and it is conveniently close to the time of lodgement of the application leading the Tribunal to find this claim was more likely to have been fabricated to support her application.
Additionally, above the Tribunal made adverse credibility findings against the primary applicant and rejected her claims that she and [Mr A] were in a genuine relationship and that he was violent towards her in Australia. Consequent on those findings, it does not accept that [Mr A] has made threats against her through contact with her mother and brother.
Summary of findings
In summary, the Tribunal finds as follows in relation to material elements of claims in this application: It accepts the primary applicant was married to [Mr A] and arrived in Australia on a student visa as his dependent wife. It accepts that [Mr A] departed Australia [in] September 2010, following the refusal of his [previous] visa application. It does not accept, on the evidence before it, that the primary applicant was subject to domestic violence at the hands of [Mr A].
The Tribunal accepts that the primary applicant and second named applicant are in an ongoing de facto relationship. It accepts that they have two children of the relationship, born in [2011] and [2014]. The Tribunal accepts that to date the primary applicant and second named applicant are not married and were not married at the time of birth of their two children, despite the incorrect information provided about their marriage on the official birth certificate.
Having rejected the claim that [Mr A] subjected the primary applicant to domestic violence in Australia, the Tribunal rejects the claim that he contacted her mother and brother and issued threats against her if she returns.
The Tribunal is prepared to accept that the applicant’s mother, family and community may not be supportive of her relationship with the second named applicant and them having had children out of wedlock. It accepts that these actions go against societal and religious traditions in Bangladesh.
Before the Tribunal the primary applicant and second named applicant indicated that they are willing and intending to get married in future. The primary applicant told the Tribunal she is in the process of seeking a formal divorce from [Mr A] and had filled out some forms for this purpose recently. Her reason for not doing so earlier was financial. The second named applicant told the Tribunal he is willing to marry the primary applicant as soon as he can do so. On the basis of their evidence, the Tribunal finds that the primary applicant and second named applicant are likely to marry in the reasonably foreseeable future.
Fear of future harm
Having accepted that the primary applicant and second named applicant are in an ongoing relationship and have two children (the third and fourth named applicants), the Tribunal will now consider with she and/or any of the applicants face a real chance of serious harm for one or more of the reasons set out in the Refugees convention.
Fear of harm from her former husband, [Mr A]
The Tribunal has rejected the applicant’s claims regarding [Mr A’s] past behaviour, including that he was violent to her in Australia and approached her mother and brother to threaten her if she were to return or that he has spread any rumours about her. Given these findings, there is no evidence to support that he has any interest, adverse or otherwise, in the primary or second named applicant or their family upon return to Bangladesh. Therefore the Tribunal does not accept that any of the applicants face a real chance of serious harm from [Mr A], for any reason.
Fear of harm from her family and/or the Islamic community for being in a de facto relationship and having children out of wedlock.
The Tribunal has considered independent country information about the situation for women in Bangladesh, particularly relating to gender based violence, including information and submissions provided by the applicants’ representatives. It accepts, on the basis of this independent information that long standing societal, cultural and religious attitudes limit and restrict women’s participation in Bangladeshi society and that women face persistent societal discrimination and the threat of gender based violence.[1] However in the present case the Tribunal finds the primary applicant would not be returning to Bangladesh alone or as a single woman with children. Rather, she would be returning with the second named applicant, as a family unit, and therefore it is not satisfied that she faces a real risk of serious harm as a single woman or single mother. The Tribunal notes that the primary and second named applicant indicated their intention to marry once they are legally able to do so and it accepts that they will do so.
[1] See for example, DFAT Country Information Report Bangladesh 2 February 2018, para 3.84-3.91.
The Tribunal has also considered whether the applicants face a real chance of serious harm on the basis of being a member of a couple who has transgressed traditional values by engaging in a de facto relationship and having children out of wedlock.
Regarding the relationship with the second named applicant, the Tribunal accepts that marriage is the only socially acceptable and legally recognisable means for family formation in Bangladesh[2] and that common law relationships are considered socially unacceptable and such couples would face pressure to marry or face ostracism or abuse. For example, a 2003 Immigration and Refugee Board of Canada (IRB) research response on the issue of “common-law” or de facto relationships indicated a source stating that ‘common-law relationships are non-existent in Bangladesh’ and that a couple wishing to live in a common-law relationship would “face a lot of trouble,” and they would likely choose to live as if they were a married couple (ibid.). [3]
[2] Mohammad Mainul Islam, Mohammad Sazzad Hasan,[3] Immigration and Refugee Board of Canada 2006, BGD41764.E – Bangladesh: Treatment and protection available to common-law couples, especially in Dhaka, 5 August
The Tribunal has also considered information relating to out of wedlock children and the stigmatization the child and woman would suffer on this basis, which indicates a double standard applies particularly to women in this situation:
The two Bangladeshi terms commonly used to describe an “out of wedlock” child aptly reflect prejudices toward these children: oboidho (a derogatory term) translates as “illegitimate” or “bastard,” while jaroj (an extremely derogatory term) translates as “perverted.” An “out of wedlock” child provides tangible evidence of a woman’s sexual indiscretion and of her family’s inability to effectively curtail her sexuality. In Bangladesh, women’s behaviour and more specifically their sexual behaviour is taken as a metaphor for family and community honour. A woman who behaves in an unacceptable way places the reputation of her family members and community at risk. Beyond this, sexual behaviour is considered to be inherently polluting (even within the marriage bond) and sexual intercourse outside of marriage confers a non-reversible, permanent form of pollution on the woman and any child born of such a union (Maloney, Aziz and Sarkar 1981). Pollution contagion radiates along lines of kinship and physical proximity placing the family, friends, employers and communities of such women or children at risk as well.
A sexual double standard allows men, on the other hand, considerably more sexual freedom. If caught in sexual indiscretion (that is, if a pregnancy occurs) men may dissipate any resulting stigma (which is rarely permanent) through purification rituals and/or by rendering an apology. Although risk of pollution exists in this case too, it is more easily set aside. In the case of a young unmarried man, a speedily arranged marriage to another woman whose honour has not been sullied is the most likely course of action. In this way, family and community honour is preserved. In the case of a more mature man, a public apology usually suffices although occasionally a cash settlement is required as well (Aziz and Maloney 1985). For the man, then, sexual indiscretion renders him merely foolish, never responsible.
…Similarly, society also refuses to accept the unmarried mother and her “out of wedlock” child. Unmarried mothers are routinely evicted from their place of residence and fired from their jobs as their dishonour would reflect badly on the community or their employer. Government attitudes regarding “out of wedlock” pregnancies range from indifference to outright denial and one official has said that although this problem does not exist in Bangladesh, if it did, those women should be stoned in front of the mosque[4].
[4] Wilson, M. 1999, ‘“Take this child”: Why women abandon their infants in Bangladesh’, Journal of Comparative Family Studies, Volume 30, Issue 4, 1 October – Attachment 6
Having carefully considered this information and the applicants’ circumstances however, the Tribunal is not satisfied the applicants face a real chance of serious harm on the basis of their family circumstances. The Tribunal accepts, on the basis of the above information, that the primary applicant and second named applicant would be unable to live openly as a de facto or common law couple as they have been doing in Australia. It accepts they would be under considerable pressure to marry. However, the Tribunal is also satisfied that the applicant and second named applicant are in a committed and long standing relationship and have indicated their willingness and intention to marry, and that the primary applicant has started the process to obtain a divorce which will allow her to marry the second named applicant. In these circumstances the Tribunal finds that the primary applicant and second named applicant are likely to marry in the foreseeable future. It also finds on the evidence provided that they have already indicated that they are married on the children’s birth certificate so that the children are unlikely to be discriminated against on this basis.
Therefore the Tribunal is not satisfied any of the primary, third or fourth named applicants will face a real chance of serious harm on the basis of the circumstances of their family unit, or any other particular social group or other Convention reason, upon return to Bangladesh in future. It does not accept that they will face harm from the primary applicant’s former husband, ‘the Islamic community’, or their families because the primary applicant and second named applicant were in a de facto relationship in Australia and had their children out of wedlock. They have indicated their intention to marry, and therefore they will be able to live as a traditional family unit and not be vulnerable to harm or discrimination on the basis of their previous defacto/out of wedlock status. There is no credible evidence before the Tribunal that this will become widely or publicly known.
The Tribunal has considered the applicant’s claims on behalf of her children, that they will face mental harm because of what will be said about her and if their illegitimate status became known. However, as the Tribunal has found, above, the applicant and second named applicant are likely to be married upon returning to Bangladesh, and the children’s official birth certificate shows them to be born to a married couple, it is not clear how this information will come to be known and any ridicule or verbal abuse of this nature would be rumours and innuendo and in any event wholly speculative. In any event the Tribunal considers taunts and verbal abuse of itself, while unpleasant and distressing, does not amount to serious harm within the meaning of that term for the purposes of s91R(2) of the Act.
The Tribunal has also considered the primary applicant’s claim, made for the first time at the conclusion of the hearing, and referred to again in her post hearing submission, that she experienced sexual abuse as a child and continues to suffer the impact of this and her fears of destitution for her children if something further were to happen to her. While this claim was made at a late stage in the application and was not accompanied by any other evidence, such as a medical or counsellors report, the Tribunal cannot be confident that the applicant did not suffer such abuse as claimed and therefore it proceeds on the basis that it is possible if not certain, that she suffered some form of sexual abuse in her childhood. However, on the evidence before it, it is not satisfied that because of this, she faces a real chance of serious harm for a Refugee convention reason, given her current circumstances of living together with a partner and children. It is not satisfied that the third or fourth named applicants face a real chance of destitution or serious harm because of their mother’s past history of child abuse.
For all of the reasons given above, and having considered the applicants’ claims cumulatively and singularly, the Tribunal is not satisfied that any of the primary, third or fourth named applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a).
Complementary Protection
100. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that any or all of them will suffer significant harm as defined in s36(2A) of the Act.
101. Having regard to the findings made above regarding the applicants’ circumstances and claims indicated above, the Tribunal is not satisfied that there is a real risk any of the applicants will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or that they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if they are returned to Bangladesh.
102. Having rejected the applicants’ claims regarding domestic violence by [Mr A] or threats he made in Bangladesh against the applicant, the Tribunal does not accept the primary applicant or second named applicant face a real risk of significant harm from [Mr A].
103. It also does not accept that they will face a real risk of significant harm from their families or ‘the Islamic community’ on the basis of their marital status, or prior transgressions of social norms because they have indicated their intention to marry and the Tribunal is satisfied that they will be seen as a married couple living in a traditional family unit.
104. The Tribunal is not satisfied the third and fourth named applicant face a real risk of significant harm due to the marital status of their parents at the time of their birth because this is not likely to become publicly known given their birth certificates do not disclose it, and in any event any teasing or ridicule they may face does not amount to significant harm within the meaning of that term.
105. The Tribunal accepts, given the significant period of time the second named applicant in particular has been outside the country, and the fact that the third and fourth named applicants were born in Australia and have lived here throughout their young lives, that they will face difficulties and adjustments in returning to Bangladesh and re-establishing their lives there. While sympathetic to their circumstances and the hardships they may face, the Tribunal is not satisfied that these difficulties and hardships bring them within the criteria for recognition as a refugee or in need of complementary protection.
106. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
107. The Tribunal affirms the decision not to grant the applicants Protection visas.
Meena Sripathy
MemberRELEVANT LAW
108. 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
109. 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).
110. 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.
111. 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.
112. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
113. 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.
114. 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.
115. 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.
116. 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.
117. 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.
118. 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
119. 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’).
120. ‘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.
121. 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
122. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
123. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include de facto partners and dependent children.
Mohammad Bellal Hossain, Tehmina Ghafur, "The Prevalence and Determinants
of Remarriage in Bangladesh" In Divorce, Separation, and Remarriage: The
Transformation of Family. Published online: 29 Sep 2016; 395-413.
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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