1516718 (Refugee)

This matter concerned an application for a protection visa by an individual from Bangladesh. The applicant claimed a well-founded fear of persecution based on his identity as an atheist and a gay male, his sexual practices, his relationship with a transwoman, and a fear of forced marriage and killing by Islamic extremists. The applicant also expressed concern about the lack of protection from state authorities in Bangladesh. The decision was made by Angela Cranston, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for one or more of the five Refugee Convention reasons in Bangladesh. This required the Tribunal to assess whether there was a real chance of persecution, defined as a possibility that is not remote, insubstantial, or far-fetched, and to consider this risk in the reasonably foreseeable future. A secondary issue was whether, if no refugee convention claim was established, there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of removal to Bangladesh, under complementary protection grounds.

The Tribunal accepted that homosexuals constitute a particular social group in Bangladesh, identifiable by their sexual orientation and distinguished by societal prejudice. It further accepted, based on country information, that the applicant, as a gay male, faced a real chance of serious harm, including physical violence and societal discrimination, regardless of his location within Bangladesh. The Tribunal found that this risk was not remote and that the applicant's membership in this particular social group was the essential and significant reason for the persecution, which was systematic and discriminatory. The Tribunal also accepted that state protection was unavailable and that the applicant should not be expected to alter or conceal his sexual orientation.

Consequently, the Tribunal found that the applicant had a well-founded fear of persecution for reasons of his membership in the particular social group of homosexuals in Bangladesh. The Tribunal was satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention and therefore satisfied the criterion for a protection visa under s 36(2)(a) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicant satisfies this criterion.