1602303 (Refugee)

[2018] AATA 4750

1602303 (Refugee) [2018] AATA 4750 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602303

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Luke Hardy

DATE:3 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2018 at 11:54am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – numerous protection visas and appeals – complementary protection grounds – particular social group – gay Catholic man – homosexuality illegal in Bangladesh – credible relationship evidence – mental health issues – real risk of significant harm – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36,48A, 48B, 65

CASES
Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71
SZGIZ v MIAC (2013) 212 FCR 235
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [name deleted], is a citizen of Bangladesh. He entered Australia on 15 July 2008. He lodged a protection visa application on 11 August 2008, claiming fear of persecution in Bangladesh for reasons of his Catholic religion. A delegate of the Minister refused the application on 24 October 2008. [The applicant] sought merits review by the then-Refugee Review Tribunal but the primary decision was affirmed by that Tribunal on 16 March 2009.

3. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugee Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

4. Relevant to the current application, s.48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

5. In light of SZGIZ, [the applicant] lodged a fresh protection visa application for a protection visa on 2 October 2012. He was nevertheless informed by the then-Immigration Department that his protection visa application was s.48B-barred. He then launched action in what was then the Federal Magistrates Court which accepted his new protection visa application as valid on 6 August 2013. In addition to claims about a risk of significant harm in relation to his religious profile, [the applicant] went on to claim he would also be harmed due to active support of the BNP. Another delegate refused [the applicant]’s second protection visa application on 22 January 2016. He then sought review in the Migration and Refugee Division of the AAT, which subsumed the Refugee Review Tribunal on 1 July 2015.

6. This decision, then, reviews the application that was refused on 22 January 2016. For the record, I have three Departmental files before me, one of then started in 2016 containing material including decisions that was missing from the 2008 and 2012 files. Trying to conduct a chronological survey of relevant papers in this matter has been complicated and arduous. Apparently a lot of material relevant to the previous and present application went missing and was later found.

7. The delegate who decided the second protection visa application purported to determine the application on refugee grounds as well as on complementary protection grounds. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the presently-constituted Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant's claims under the complementary protection provisions in s.36(2)(aa) of the Act.

8. In the present review application, [the applicant] has added an entirely new strand of claims, related to the risk of significant harm in Bangladesh due to homosexual orientation.

9. [The applicant] appeared before the Tribunal on 8 November 2018 to give oral evidence and present legal arguments. He was accompanied by his adviser, a registered migration agent. He presented seven witnesses in person and also the telephone numbers of a further six witnesses who were prepared to give testimony by telephone. An interpreter in the Bengali-English medium was available at the hearing, but practically all of the evidence taken was in English.

10. Taking account of the unlikelihood of being able to hear all of the witnesses with the time allocated to this matter, I selected three witnesses including one who had flown from [Australian city 1] for the day, and focused on one strand of [the applicant]’s claims, flagging a likely need to part-hear the matter and adjourn to another date. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

11. The main issue on this matter is whether [the applicant] is entitled to complementary protection in Australia.

12. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Claims

13. [The applicant]’s new claims relate to fear of persecution in Bangladesh for reasons of being a gay male. He claims he self-repressed growing up in Bangladesh. He claims that to the extent that he had mutually motivated contact as a young teenager with a younger “girlish” male neighbour, he self-justified it at the time as a means of relieving pressure. He said he was nevertheless secretly infatuated with “girlish” boys at school.

14. [The applicant] said his sexuality had been a very private issue for a long time, given his role and activities in the Catholic church. He told me at the Tribunal hearing that he had nevertheless “come out” to his parents during a visit they made to Australia and that they had come around to accepting him. He said that this as when he should have disclosed his sexual orientation to the Department. He and his adviser spoke in more detail to this issue in written submissions and, taken together with all of the evidence in this case, the explanations and arguments in those submissions are reasonable.

15. [The applicant] presented his partner [Mr A], an Australian citizen of Bangladeshi background, and I took oral evidence from both of them in isolation of each other. I found their evidence unforced, plausible and, give or take a few seemingly minor subjective variations, consistent, both internally and when considered alongside each other’s testimony. Their oral evidence, going to the inception of their relationship, was also consistent with printouts of their earliest conversations via the Grindr gay social networking App. [The applicant] and [Mr A] also spoke credibly about the social aspects of their relationship and, in particular, about plans they have discussed conditional on completion of [Mr A]’s study and resolution of [the applicant]’s migration status. They were also assisted by [another named woman], a colleague and long-time confidante of [Mr A]’s. She said that [Mr A] had started telling her about the burgeoning relationship with [the applicant] from around the time of its first glimmer, back in January-February 2018. 

16. To sum up, speaking from experience in the former MRT, [the applicant] and [Mr A] struck me as witnesses reliable enough to meet most of not all criteria for a partner visa, notwithstanding the delay from [the applicant] in disclosing his sexual orientation.

17. At the hearing, I acknowledged independent country information to the effect that acts commonly associated with male homosexuals are prohibited by law in Bangladesh and potentially punishable by long prison sentences. I acknowledge here that the existence of such laws reportedly have the potential to justify discrimination and intimidation of gay men in the minds of state and non-state parties in countries like Bangladesh. In 2016, the Islamic State movement claimed responsibility for the violent murder and maiming of a number of LGBT-linked bloggers and academics in Dhaka, the authorities reportedly having failed to address this trend of attacks in spite of the government being nominally secular.[1]  The NGO Human Rights Campaign recently reported as follows:

    Bangladesh is one of several South Asian countries that continue to criminalize LGBTQ people using an archaic British colonial-era law known as Section 377. Despite the presence of several LGBTQ rights organizations in the country, sexual and gender minorities in the country face severe social and economic challenges and these murders are likely to add to the challenges.[2]

    [1] “Bangladesh LGBT editor hacked to death,” BBC News, 25 April 2016,

    [2] “Extremists Brutally Murder LGBT Magazine Editor and Employee in Bangladesh,” HRC, 12 October 2016,

18. Mindful of guidance in Australian courts[3], I asked [the applicant] what altering his behaviour in Bangladesh to avoid detection as a gay man would have on him. I response, [the applicant] spoke of the social isolation that comes with avoiding even social contact with other people of similar sexual orientation. He argued that for fear of being assaulted or worse, gay men can only gather in secret and then in fear unless, say, they adopt the outward appearance of women, to become hejira, cross-dressing shaman, or prostitutes. He said that gays in Bangladesh can only subsist by exposing themselves to sexual exploitation and assault. He saisd that the prevalence of more conservative and radical Islam in Bangladesh means that gays risk being harassed, tortured and killed.

    [3] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >

    [The applicant] presented another witness at the hearing, a psychotherapist who had travelled from [Australian city 1], and who gave at length his opinions as to [the applicant]’s psychological and emotional state, in light of his fear of being persecuted. This oral evidence struck me as being compelling, though for the most part it duplicated what the witness had already said in a written opinion already submitted to the Tribunal.

19. I did not take evidence from any of the witnesses who had been invited by [the applicant] to discuss his “religion” and “political opinion” claims. I adjourned the hearing to keep open the possibility of hearing evidence going to these factors if needed. However, in light of findings below, I consider it unnecessary to resume the hearing of this matter.

    Findings in relation to s.36(2)(aa)

20. A person may be entitled to 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.

21. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

22. "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.

23. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

24. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

25. 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.

26. I accept that [the applicant] is a citizen of Bangladesh. As [the applicant] is a national of Bangladesh, that is the receiving country in the present case.

27. I accept that [the applicant] is a Catholic. I make no findings in this decision as to whether or not he faces a real chance of persecution in Bangladesh for reasons related to his religion. Furthermore, I make no findings in this decision about [the applicant]’s recently-disclosed “political opinion” claims.

28. More significantly, I accept that [the applicant] is a gay male. I would find that gay males in Bangladesh constitute a “particular social group” for the purposes of the Convention. Here, in the context of s.36(20(aa), a reason for harm is part of the factual matrix, but it is not necessary for it to fall within any specified criteria as in refugee cases.

29. I find that [the applicant] is in a genuine consensual, evidently exclusive, sexual relationship with [Mr A]. Whereas I have some understandable concerns as to the delay in [the applicant]’s sexual orientation claims being brought to light, I accept that his subjective religious disposition prevented him for many years from dealing with his sexuality without fear and self-denial. He is helped in this matter by the evidence of [Mr A] and [Ms B].

30. I accept that gay males face a real risk of significant harm in Bangladesh in the form of cruel or inhuman treatment or punishment, degrading treatment or punishment, torture and even arbitrary deprivation of life, all intentionally inflicted.

31. Accordingly I accept that [the applicant] faces a real risk of significant harm in Bangladesh owing to his being a gay male.

32. As s.377 of Bangladesh’s Penal Code and the stigma it reportedly helps to feed is in force at least in principle throughout Bangladesh, and since a conservative and reactionary teaching of Islam is reportedly inspiring violent action against secularism and persons with profiles (including sexual profiles) considered haram, I find that relocation within Bangladesh is not a viable option for [the applicant], such as would catch him under s.36(2B)(a). On the evidence before me, I also find that state protection of a kind acknowledged in s.36(2B)(b) is not available. I find that [the applicant]’s sexual orientation distinguishes him from the Bangladeshi population generally, and the harm being perpetrated by Islamic extremists is targeted at LGBT-identifying persons, such that [the applicant] is not caught by s.36(2B)(c).

33. Accordingly, I am satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that [the applicant] will suffer significant harm. He meets the criteria of s.36(2)(aa).

34. Furthermore, I am satisfied on the evidence before me that there is no other country where [the applicant] has a right to enter and reside, even temporarily. I am satisfied that there are no possible steps he could take, or have taken, to avail himself of the protection of a third country. He is not caught by s.36(3) of the Act.

    DECISION

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

    Luke Hardy
    Member