1516718 (Refugee)

[2022] AATA 1664

1516718 (Refugee) [2022] AATA 1664 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1516718

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Angela Cranston

DATE:13 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2022 at 11.56am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – religion – atheist – particular social group – homosexual male – engaging in sex with transsexuals – long term relationship with a transwoman – fear of forced marriage – fear of killing by Islamic extremists – return visits to Bangladesh – delay in applying for protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.   The applicant who claims to be a citizen of Bangladesh, applied for the visa on 14 November 2013 and the delegate refused to grant the visa on 29 October 2015. In his application, the applicant stated the following:

I was born into a conservative Islamic family but I consider myself as an atheist. I came to Australia on a student visa. I am a gay male from Bangladesh which criminalises homosexuality. In addition to the Islamic extremists and the conservative Islamic Bengali Society consider homosexuality is taboo and target and harm gay males. Though, I am in Australia for some time I did not lodge my protection visa because I was having my student Visa and have the intention to stay permanently in Bangladesh through skilled visa process. I am a regular visitor to the gay clubs in Sydney and have had sexual relationships with males. I fear I will face serious harm including torture, forced marriage, inhuman and degrading treatment at the hands of the Conservative Bengali Society and the Islamic extremists. I fear the authorities will not protect me because homosexuality is an offence in Bangladesh. I fear my family also will force me to marry a girl which I cannot do. I fear my family and my extended family may target me and harm me for engaged in antisocial activities from their perspective and dishonour the values of the family. I also fear because I am an atheist and do not practice and accept Islam the Islamic fundamentalists may target me and harm me for abandoning Islam. Recent country information indicates that Jamaat and the Islamic extremists has gained considerable influence, support and established network throughout Bangladesh. I fear even if I move to other parts of Bangladesh I will continue to face harm.

3.   The applicant provided a further statement dated 15 July 2014 as follows:

I was born on [date] in Bangladesh. I was born into a conservative Muslim family. Though I practised Islam due to my family's pressure I was not comfortable with Islam due to its strictness and conservative values. When I came to Australia in 2002 I stopped practising the religion and became an atheist.

After completing a [Course 1] in my college in [specified year], I started working at [a named employer] till 2001 in Bangladesh. In January 2002, I came to Australia and commenced my studies at [aa named university] and completed my [further qualification] in 2004. After that I joined different colleges to undertake various courses.

While I was studying then in Australia I had a relationship with a [Nationality 1] lady which lasted for 18 months. In 2008 I developed a [medical condition] which got worse in 2009. When I had that problem, I could not engage in sex and my girlfriend left me. I begged her not to leave me but she just ignored and insulted me. As a result of that, I went through immense mental stress including developing suicidal thoughts. I developed a hatred towards females.

I could not engage in sex and was very down. During that time, I frequently visited nightclubs with my friends and enjoyed drinking and dancing. I used to go to clubs such as [two club names]. In 2010 when I was dancing at [Venue 1], I got in touch with the [Nationality 2] lady boy and took him to my home. His friend also came with us and we had a threesome. That was the first time I really enjoyed sex and it gave me pleasure which I had never enjoyed from a female. I really enjoyed mutual sucking and was attracted to their male organs.

After that I totally lost interest in females and started engaging in sex with transsexuals.

I then started to invite transsexuals whom I met to my home and had casual sex. I rented a place to live by myself so I could have freedom to pursue my desires. In early 2011 I met [Friend A] from [Country 1] who has both masculine and feminine features at my college. I started talking when we were engaging in our group activities and later found he is also a lady boy. I took him to [a named venue] and we both stayed overnight there and we had sex. We continued to have sex once in a month either at my place or at hotel and the relationship continued for seven months.

In April 2012 I met a [Nationality 3] lady boy named [Friend B]. I was greatly attracted towards him and we exchanged our phone numbers. We then met for dinner and during the dinner I told him that I liked him. He also said he liked me. I then took him to my [Suburb 1] flat and had sex with him. At the end of 2012, our relationship came to an end when he got a new boyfriend and said he wanted a committed relationship, which at that I did not feel I could give.
I became lonely and very depressed again. After that I started inviting lady boys from [Website 1] to my home for money and have sex.

My sexual preference is different compared to most other gay males. I am certainly not interested in having sex with females. I like to have sex with males with some female features. I am interested in engaging in sucking while massaging their breasts. That's when I get satisfaction. I cannot have sex with females and I do not get full sexual enjoyment with masculine males.

In 2013 through [Website 1] I invited three gays to my place to have sex. However, I could not get full satisfaction with them. I then realised my sexual orientation involves an exclusive interest in lady boys for my sex.

I met [Friend C], another [Nationality 3] guy in end 2013 at [a named] restaurant. [Friend C] was sitting in a separate table and when I saw him, I realised that he is a lady boy. I went to his table introduced myself and asked his permission whether I can sit there. He said okay and we started talking and exchanged our phone numbers. We became friends and I invited him to my place and had sex. After that we continued to have sex until now.

I met [Friend D], also a transsexual through [Website 1] and paid $400 and took him to my home in January 2014 and we had sex. After that he became my friend and then used to visit my home and engaged in sex without money. After meeting [Friend C] and [Friend D variant], I do not need to go to [Venue 1] much but occasionally I go there to meet new transsexuals. With [Friend C] and [Friend D], we used to take photos including very intimate photos for fun.

I used to go to [Venue 1] and [Venue 2] to look for transsexuals and sometimes I use [Website 1] or [Website 2] to find transsexuals.
Though I  have been engaged with the transsexual community in Sydney since 2010, I did not apply for a protection visa because I had my student Visa and then my matter was with the MRT. I hoped that I would get my student visa back and I would continue with my studies and apply for some skilled Visa. When the MRT called me for the hearing I became stressed because I was worried about my situation.

I saw [Representative A], an accredited Specialist immigration lawyer to seek assistance in my MRT matter in August 2013. During the meeting he asked my details and some background questions. I told him I cannot go back to Bangladesh because I'm gay. That time I thought that a person who is emotionally and sexually attracted towards lady boys was also considered as a gay. I was very shy to say to him that I am having sex with lady boys. Also my view lady boys are effeminate guys with soft physiques and that was another reason from my perspective I have sex with guys. That's why I said I'm gay and homosexual. I showed him the photos on my phone. [Representative A variant] said if I am genuinely interested in males I may be eligible to apply for a protection Visa. I told [Representative A] that I can not go back to Bangladesh because I can not be discreet now about my sexual preference in Bangladesh because I am quite a different person to the one I was when I left Bangladesh. I then instructed [his firm] to lodge my protection visa. This was the reason for the delay in my lodging my application for my protection visa.  
After lodging my application for a protection Visa, the MRT also remitted the matter back to the department and I was then granted to student Visa.

Actually I am really confused about the sexual orientation terminologies. I am a person interested in having sex with effeminate guys and transsexuals. But I realise that the terminology of gay is different because some people say that a gay is a person who is attracted towards another male and not a lady boy. In my case, I have zero interest in females. As far as males are concerned, I like effeminate males with a female body structure as well as male genitals.

I fear due to my sexual interest in effeminate men and transsexuals I will be considered as a Satan by the Islamic extremists. I fear the Islamic extremists may link my atheism religious belief and my sexual preference and will consider me as a person engaged in un-lslamic activities. As far as the Bangladesh Islamic Society is concerned deviant sexual activities to the enshrined Islamic values are prohibited and are seen as un­lslamic and need to be condemned. I fear because of my sexual interests I will be viewed as an un-Islamic person and will be seriously harmed.

I fear as long as I live in Australia I can avoid the pressure to getting married from my family and not following Islam. But if I return to Bangladesh, my family and my relatives will either force me to marry or force me to send to a psychiatric medical clinic on the belief that I have some kind of psychological problem. I fear if my sexual preference is exposed to the Islamic extremists in Bangladesh they will target and kill me on the belief that by killing me that they can go to heaven.

In Bangladesh transsexuals are called hijras and they are very marginalised and persecuted as are people who are sexually attracted to them.

I fear if I go back to Bangladesh I will face serious harm to the following reasons:  
I am an atheist from a Muslim Conservative family

I have zero interest in females and have an interest in sex with lady boys (transsexuals) and effeminate guys

my family will force me to marry a girl and I cannot marry a girl because I have no interest in females and could not live with a woman as a husband and wife now even if I return to Bangladesh, I will continue to find out transsexuals for sex

if my sexual preference is exposed I will be considered as a mentally ill person and excluded from our society or otherwise harmed.

4.The Department found that the applicant:

delayed lodging his protection visa application more than 11 years after his first entry to Australia and after three return visits to Bangladesh,
sought to prolong his stay in Australia following the awarding of his [further qualification] on a series of student visa associated with lower value courses whilst self-employed in the [business] registered in his name, [named specified]

had demonstrated capacity to live independently

had demonstrated capacity to live away from the influence of his family

had not submitted any genuine evidence of past or present support from the LGBT community with which he claimed to have been associated since 2010.

5.   The Department did not find that the applicant had submitted compelling credible evidence that would support his claim that he would be forced into marriage by his family should he return to Bangladesh or that he would not be able to have sexual partners, particular to his orientation in Bangladesh.

6.   The applicant applied to the Tribunal for review and subsequently provided further statutory declarations from himself dated 28 June 2021 as well as from other persons.

7.   As part of the investigation process, the Tribunal listened to the then Migration Review Tribunal (MRT) hearing with the applicant dated 15 February 2013 (MRT file 1108554 dated 26 November 2013). At that hearing, where the applicant was unrepresented, the applicant told the then MRT as an adjunct to the actual issue in that student visa case that in 2010/2011 and when he felt down, he started going to gay clubs where the guys impressed him more than the ladies, that he needed a sexual life, was involved with guys and preferred males for sexual intercourse.

8.   The applicant appeared before the Tribunal on 29 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend E], [Friend F] and [Friend G].

9.   The applicant was represented in relation to the review by his registered migration agent.

10.     The applicant stated that the application form and his two statements were correct, that he currently lived in [Suburb 2] with [Friend E] and her friend [Friend H] and they had been there since January 2022. He stated [Friend E] had moved her things in one week before him. Before [Suburb 2] he was in [Suburb 3] since the end of 2017 until the end of 2021. He had also lived in [Suburb 4] in November/December.

11.     The applicant stated he was not interested in females sexually and liked males with female features and first became aware of this in 2011 when he met a lady boy (also known as hijra). He met [Friend E] in 2016 in [Suburb 5] and their relationship became serious after 2019.   He stated they last saw [Friend F] together when they had eaten [near Suburb 5] 5 or 6 months ago. He also stated they had eaten at [Venue 3] just before Christmas.

12.     The applicant stated he become aware he was interested in males with female parts in 2011 and returned once to Bangladesh after that in 2012 for [number] days because his father was sick.

13.     The applicant stated he could not return to Bangladesh because he was atheist and did not believe in religion or God and expressed those feelings in public. He said he had made a [social media site] and did not like the Koran which would be problematic because he came from a Muslim family.  He said when he was young he would not pray at the mosque and asked if God existed at class 7, 8 or 9 because he had doubts. He stated his feelings became stronger when he did online searches, read more books and talked to people in Australia. He also stated he had been ostracised by his muslim friends because he was atheist. He then proceeded to talk about Islamic beliefs that he stated he did not agree with including the number of marriages a male could have. When asked if he had expressed atheist views to Muslims in Bangladesh he said in 2011 he had talked about his views after he had drunk alcohol and had stated the Koran consisted of fairy tales. When asked if there were any other reasons he had been ostracised or pushed away in the past, he stated no. The Tribunal put to him that the then MRT spoke to him in 2013 and he had said his Muslim friends had pushed him away for another reason. He stated he could not recall and when the Tribunal said he had said he had been pushed away by friends because he gambled, he agreed.

14.      The Tribunal asked why he protested about Islam when he wouldn’t even go to the mosque when young and he said it was hard to explain. He stated previously he had been against Islam but his views were not strong. He said after coming to Australia he had seen double standards and said, for example he had been criticised for eating pork by Muslims who drank. He stated he hated Islam.

15.     The applicant also stated he liked men with females features, he was with [Friend E] and because he had no one else he would be lonely if he returned to Bangladesh. He stated he had some friends who knew his true self but mentally and physically it would be hard.

16.     The Tribunal then spoke to [Friend E] with the help of a [Nationality 2] interpreter. [Friend E] stated she lived in [Suburb 2] with the applicant and had been there since 1 January 2022 when they moved in together however [Friend E] moved in first. She stated she also lived there with [Friend I] and [another friend] who were not known by any other names. The Tribunal said the applicant had said they were living with [Friend H]. She stated [Friend H] was [Friend I’s] girlfriend and sometimes came but not regularly. She also stated she and the applicant had last seen [Friend F variant] before Christmas at a [named] restaurant [near Suburb 5]. When the Tribunal put to her that the applicant had said something else, she stated they had been at a [different nationality] restaurant together. When asked about any other [similar] restaurants, she stated they had all been in [Venue 3] before Christmas.    

17.     The Tribunal then spoke to [Friend F variant] who stated he had last had dinner together with the applicant and [Friend E] at a restaurant in [Venue 3] before Christmas. He had only had dinner with them once.

18.      The Tribunal talked about the MRT hearing on 26 November 2013 where the applicant was unrepresented and said as an adjunct to the actual issues in that student visa case that in 2010/2011 and when he felt down, he started going to gay clubs where the guys impressed him more than the ladies, that he needed a sexual life, was involved with guys and preferred males for sexual intercourse.

19.     The applicant stated [Friend E] was male and would have to produce identification revealing the same and homosexuality was against the law. He also stated if extremists knew he was with a male with feminine features it would be dangerous. The applicant stated without [Friend E] he would be mentally down and would have no emotional or physical support. He also stated it would be hard to find support in Bangladesh and he would be isolated and frustrated.

20.     The applicant stated he was an atheist. The Tribunal put to him that it accepted his sexual preference but was wondering why he would go to the extra effort of criticising Islam even though he had shown no interest in Islam in his youth. He stated he was a strong atheist.  

COUNTRY INFORMATION

21.     According to DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019:

Sexual Orientation and Gender Identity

Article 377 of the Penal Code ('Of Unnatural Offences') criminalises homosexual acts, defined as 'carnal intercourse against the order of nature', and provides for a maximum penalty of life imprisonment. Male homosexuality remains a strong societal taboo, while there is a general lack of societal awareness of lesbianism. Human rights observers report that the overwhelming majority of gay or lesbian Bangladeshis prefer to keep their sexual orientation or gender identity a private matter. There is considerable familial and societal pressure on both gay men and lesbians to enter into heterosexual marriages and have children. The male partner in Bangladeshi marriages generally exercises considerable social control and 'protection' over the female partner, which restricts the ability of lesbians in such relationships to make contact with other women. This is particularly the case given women in Bangladesh tend to marry at a young age, and their husbands tend to be older than they are. DFAT assesses that it would be extremely difficult in practice to live in a publicly acknowledged homosexual relationship for members of either sex.

There are no laws specifically protecting lesbian, gay, bisexual, transgender, or intersex (LGBTI) people from discrimination, violence, or harassment, and DFAT is not aware of any moves to introduce such laws. The government first acknowledged the existence of homosexuality in Bangladesh in its April 2013 Universal Periodic Review (UPR) at the UN Human Rights Council, having stated in its 2009 UPR that there are no gay or lesbian individuals in the country.

The ability of LGBTI individuals and organisations to exist and operate freely and openly has tightened considerably in recent years. Although a 'Rainbow Rally' LGBTI rights parade held during the Bengali New Year in April 2015 was both high profile and well attended, organisers planning a follow-up event in April 2016 received a number of death threats, and cancelled the event after police refused to guarantee protection and instead arrested four of their number. In the same month, lslamist militants murdered activist Xulhaz Munnan, the founder of Bangladesh's only LGBTI magazine, in his apartment, along with a friend (see also Media). Officials commenting on the murders of the two men blamed the crime on Munnan's activism: the Minister for Home Affairs, for example, declared that Munnan was 'writing in favour of unnatural sex, which is tantamount to a criminal offence'. Mannan's murder remains unsolved.

Following the Munnan case, several gay men - both activists and non-activists - reported receiving threats of violence. LGBTI activists subsequently cancelled a number of advocacy events and constrained their work. Some in the LGBTI community removed Facebook pictures hinting at same-sex relationships or deactivated their profiles altogether, and many went into hiding. DFAT understands that many formerly prominent activists have left the country, depriving the community of leadership. This has resulted in severely weakened visibility, advocacy, and support networks for LGBTI persons. DFAT is unaware of any further high-profile attacks committed against LGBTI individuals. This is more likely, however, to reflect the fact that the community continues to keep a very low profile, rather than being the result of greater social support towards them.

Official attitudes towards the LGBTI community remain negative. Although the murders of Munnan and his friend were two of the most high-profile murder cases in Bangladesh, the case received almost no press coverage on the first anniversary of their deaths. An editor of a leading English language newspaper reportedly told activists that they had received official instruction not to publish articles on homosexuality. In May 2017, the Rapid Action Battalion (RAB, see Police) arrested 27 LGBTI youths at a party in Keranganj on the outskirts of Dhaka Bangladesh's largest coordinated arrest of LGBTI individuals in recent history. While a RAB representative confirmed that those arrested included 'homosexuals from 20 districts' and images of DFAT Country Information Report bangladesh 37 the arrestees appeared on television and in newspapers identifying them as gay men, those arrested were charged with narcotics offences rather than under Article 377. Activists have suggested that arresting and charging the group on the grounds of drug possession rather than homosexuality - and using the RAB rather than regular police to do so - was an attempt by authorities to send a message to the LGBTI community that their activities were being monitored, while avoiding international pressure.

While actual prosecutions are rare under Article 377, human rights groups report that police have used its existence as a means to harass men considered effeminate, regardless of their actual sexual orientation. This harassment includes using the threat of arrest as leverage to extort bribes from individuals, and as a means to limit registration of lesbian, gay, bisexual, transgender, or intersex (LGBTI) organisations.

The level and frequency of harassment depends largely on an individual's socio-economic status and geographic location. In-country sources report that police have increasingly targeted 'gay beats' (places where men meet for anonymous sex), which has reduced the prevalence of that practice. Gay men in general report that they are unable to seek police assistance when they are victims of crime given the likelihood that police will target them for violence or extortion.

DFAT is not aware of any cases in which criminal prosecutions have been brought against lesbians in relation to their sexual identity, nor any cases in which lesbians have been physically attacked or discriminated against on this basis. The general lack of societal awareness about lesbianism leads to social invisibility, and information about lesbians in Bangladesh is difficult to obtain. Lesbians are unlikely to be open about their sexual identity, as doing so would make them highly vulnerable to societal violence, including physical attack. DFAT is not aware of any pattern of official discrimination and violence against LGBTI women, but considers that the risk of such treatment should not be discounted. In­ country sources report that although there are no public social gatherings to allow lesbians to meet each other, a telephone helpline does exist. In addition, some lesbians may communicate with each other using encrypted messaging services or social media.

NGOs report that LGBTI individuals (gay men in particular) occasionally use a complex system of slang known as ulti to avoid cultural taboos prohibiting open discussion of LGBTI issues. This slang includes various euphemisms that may be used as LGBTI issues are poorly understood and English words to describe LGBTI issues may not have equivalents in Bengali. Highly educated and wealthy LGBTI people are most likely to understand these words and concepts.

The position of LGBTI individuals in Bangladesh contrasts and should not be confused with that of the hijra (male to female transgender individuals), who have a long recorded history in the Indian subcontinent. Many hijras live in well-defined and organised communities, which have sustained themselves over generations by 'adopting' young boys who have been rejected by, or have fled, their family of origin.

While they have an accepted role in Bangladeshi society, hijras remain marginalised. Few mainstream employment options are open to hijras, and many obtain income through informal means, including extortion, performing at ceremonies, begging, or prostitution.

Acceptance of hijra family members among relatives is generally low, and they lack inheritance rights under sharia provisions governing personal status matters. Hijras are vulnerable to violence from both the community and law enforcement.

In January 2014, the government announced the recognition of a third gender category for hijra, which ostensibly offered them improved access to education, health and housing services. However, the announcement did not provide a definition as to who qualified as a hijra, or outline the measures individuals must take to legally change the gender marker on their official documents from 'male' to 'hijra'. The lack of these guidelines have hindered government attempts to integrate hijra into formal employment. For example, in December 2014 a number of hijra selected for appointment to positions in the public service in December 2014 were subjected to invasive medical tests as part of the recruitment process. Shortly after the medical examinations, the hijra names were exposed in a newspaper article that declared them imposters, DFAT Country Information Report Bangladesh 38

as they were 'really men' who were committing fraud to obtain government jobs. Many of the hijra reported increased harassment by their neighbours and the public and increased economic hardship as a result. In country sources report that further difficulties were caused by the government's decision to categorise hijra as a disability category, which further stigmatised them.

There is little information available about non-hijra transgender individuals. The word 'transgender' does not have a direct Bengali equivalent, and the term hijra may be used to describe non-hijra transgender people. An October 2017 Human Rights Watch (HRW) report based on interviews with six transgender men (born female) found that the group had all experienced bullying, barriers to employment, difficulty accessing health care, and harassment and verbal abuse in both public and private spaces.

DFAT assesses that self-identified LGBTI individuals (including non-hijra transgender individuals), or those perceived to be so, face a high risk of societal discrimination that may include physical violence, regardless of their geographic locations and socio-economic circumstances. Most LGBTI individuals would therefore be very unlikely to be open about their sexuality or gender identity, in order to reduce this risk.

LGBTI individuals face a moderate risk of official discrimination in that they are unlikely to be able to access state protection in the event of discrimination, threats, or attacks against them. DFAT assesses that although hijra have a more accepted place in Bangladeshi society than other LGBTI individuals do, they face a moderate risk of official discrimination in the form of bureaucratic uncertainty and a moderate risk of societal discrimination in that traditional values and gender roles continue to restrict their full participation in the workplace and community.

RELEVANT LAW

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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

2. 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).

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. 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’).

13. ‘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.

14. 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.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

    37.     The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    38.     The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee convention reasons in Bangladesh and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

    39.     The applicant has claimed that he fears harm because he is an atheist and a gay male from Bangladesh which criminalises homosexuality. He has further stated that he engages in sex with transsexuals, likes to have sex with males with some female features and is in a long term relationship with a transwoman. The applicant is  concerned about the Bangladesh community and claims he will not be protected by the state authorities.

    40.     The critical issue in this case is whether the applicant's fear is well-founded for the purposes of the Refugee Convention. Relevantly, the question is whether there is a real chance the applicant will be persecuted for one or more of the reasons enumerated in the refugee criterion if he returns to Bangladesh and, if so, whether this relates to all areas of Bangladesh. As already noted, a 'real chance' is one that is not remote or insubstantial or a far-fetched possibility and must be assessed into the reasonably foreseeable future, not simply at the time of the decision.

    41.     For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    42.     The Tribunal accepts that the applicant is a gay male who engages in sex with transsexuals, likes to have sex with males with some female features and is in a long term relationship with a transwoman (or hijra). The Tribunal accepts this largely because the applicant indicated as much at a 2013 MRT hearing where his sexuality was not in issue. Neither was this evidence presented by the applicant in support of his protection visa application.

    43.     The Tribunal accepts that because the applicant’s comments at his MRT hearing are the earliest evidence about his sexuality that was freely given and without apparent motive, that it is reliable.

    44.     While DFAT has noted that hijras have an accepted role in Bangladeshi society but remain ostracized, the applicant is not transgender and identifies as a gay male who likes to have sex with males with some female features. The Tribunal also accepts that the applicant has a long-term relationship and that it would be extremely difficult for the applicant to live in a publicly acknowledged relationship with a transwoman. The Tribunal also accepts that his need to be discreet is because he is unable to live openly as a gay male who engages in sex with transsexuals and as a person who likes to have sex with males with some female features.  

    45.     While DFAT notes that the law criminalising homosexual acts is rarely enforced, the Tribunal accepts, as DFAT has said, that human rights groups report that police have used its existence as a means to harass men considered effeminate and official attitudes towards the LGBTI community remain negative and that they are unlikely to be able to access state protection in the event of discrimination, threats or attacks against them. The Tribunal also accepts DFAT’s assessment that self identified LGBTI individuals or those perceived to be so face a high risk of societal discrimination that may include physical violence, regardless of their geographic locations and socio economic circumstances.  

    46.     Clearly homosexuals in Bangladesh are identifiable by a characteristic or attribute common to all members of the group, namely their sexual orientation. Equally clearly, this characteristic or attribute distinguishes the group from society at large in Bangladesh as evidenced by the societal prejudice against homosexuality. The Tribunal therefore accepts that homosexuals form a particular social group in Bangladesh for the purposes of the Refugee Convention.

    47.     Based on the DFAT report, the Tribunal also accepts that the applicant as a member of a particular social group known (at its most inclusive group as a gay male) has a real chance of serious harm as opposed to a remote or far-fetched possibility of serious harm if he lives openly as a homosexual in Bangladesh. He will be vulnerable to attack and if the threat of harm were to prevent him from living openly as a homosexual this would in itself amount to serious harm as that term is understood by s91R(2)(such as threat to life or significant physical ill-treatment) and that real chance relates to all of Bangladesh and that there is no part of Bangladesh to which the applicant could relocate where he would be safe from the persecution which he fears.  Accordingly, the Tribunal is satisfied the applicant will face a real chance of serious harm, and therefore persecution, in all areas of Bangladesh. The Tribunal is also satisfied that the applicant’s membership of a particular social group known (at its most inclusive group as a gay male) is the essential and significant reason for the persecution. The Tribunal also accepts that the persecution also involves systematic and discriminatory conduct in the sense that it is non-random and targets gay males. The Tribunal also accepts that the serious harm may be perpetuated by society as a whole and that state protection is not available for homosexuals who experience discrimination or violence from members of society. Neither should the applicant be expected to alter his sexual orientation or conceal it.

    CONCLUSION

    48.     The Tribunal finds that the applicant is outside his country of nationality, Bangladesh.  For the reasons given above, the Tribunal find that he has a well-founded fear of being persecuted for reasons of his membership of the 'particular social group' of homosexuals in Bangladesh if he returns to that country now or in the reasonably foreseeable future. There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than his country of nationality, Bangladesh.  The Tribunal therefore finds that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act.

    49. It follows that the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Consequently the applicant satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act for a protection visa.

    50.     For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

    DECISION

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

    Angela Cranston
    Member