1604065 (Refugee)

1604065 (Refugee) [2019] AATA 6794 (24 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604065
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Ms Christine Long
DATE:24 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 24 September 2019 at 11:44am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Christian convert – conservative Islamic family – fear of societal violence and pressure from Muslims in Bangladesh – young family – arranged marriage – relocation within home country not reasonable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 5LA, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
MZAFZ v MIBP [2016] FCA 1081
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 February 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who are citizens of Bangladesh, applied for the visas on 17 July 2015. On 26 February 2016 the delegate refused to grant the visas on the basis that she was not satisfied that the applicants are persons in respect of whom Australia has protection obligations. On 24 March 2016 the applicants applied to the Tribunal for review of the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CLAIMS AND EVIDENCE
The Tribunal has before it the applicants’ departmental file which includes their applications for the visas and documents and statements/submissions made to the delegate in support of that application; the delegate’s decision record dated 26 February 2016; and copies of the applicants’ passports. The applicants’ departmental file also contains a non disclosure certificate given under s.438 of the Act and dated 1 April 2016. The Tribunal also has before it the applicants’ application for review and the documents, submissions/statements produced to the Tribunal in support of that application.
First named applicant’s claims in application for protection visa
In her application for protection visa the first named applicant (the applicant) states that she was born in Dhaka in [Bangladesh]. She indicates that she is Christian (Presbyterian) and that she converted to Christianity in Australia in 2014. She indicates that she married in Dhaka in 2009. She indicates that she travelled to Australia in 2011 using her passport issued in Bangladesh in [2009]; her passport expired in [2014]. She states that she entered Australia as the spouse of the second named applicant, her husband who had a student visa. She states that she last entered Australia [in] July 2013 after departing her home country legally [earlier in] July 2013. Her passport a copy of which is on the departmental file indicates that she left her country [in] January 2011 and first entered Australia [later in] January 2011 on a [temporary] visa, [granted] 13 January 2011. Her passport indicates that she returned to her country between [May] 2013 and [July] 2013.
The applicant indicates that she completed her education in Dhaka in September 2010 gaining a Bachelor of [Subject 1] at university there. She indicates that she lived at the same address in Dhaka, which she gives, from 1983 until January 2011.
The applicant states that she is seeking protection in Australia because she has become a Christian while she has been in Australia. She comes from a conservative Islamic family and in Islam she will be considered an infidel who should be killed because she left Islam; she fears for her life. The applicant states that if she returns to her country she will be threatened and made to return to Islam; if she does not do that people associated with Islamic groups will try to harm her. She will not be able to seek help from authorities; Bangladesh is an Islamic country. The applicant indicates that she will be unable to relocate in her country as her country is a small one with a “village culture” and when people see a new face in the area they ask questions. They will discover she is a converted Christian wherever she goes.
In the statement dated 31 July 2015 made in support of her application for protection visa the applicant states that she came from an orthodox Muslim family in Bangladesh and her parents are very strict about religion. She describes in some detail her upbringing in the family and the “rules and regulations” of Islam which she was expected to follow growing up. She states that she followed what her parents taught her. She states that she married in 2009 to the second named applicant and came as his spouse to Australia in 2011. She experienced freedom for the first time in her life. In 2014 they paid money[for] her husband to apply for a skilled migration visa but the agent defrauded them and their visa was refused. Her husband appealed to the MRT and her husband was trying to find a sponsor. The MRT refused the appeal in July 2014. She explains in her statement how, after she and her husband moved to [City 1] in June 2014, they met Mr [A] when he came to the house they were sharing with friends and he introduced them to Christianity and the Bible. She explains how she read the Bible and came to decide to follow Christianity. The applicant states that she and her husband could not return to their country because they had to borrow a lot of money from relatives and family to pay the agent who defrauded them. They became Christians and converted from being Muslims. They could not tell anybody about their visa status but they told Mr [A] when the husband was located by immigration authorities working and was told to leave Australia. They overstayed their visa but could not then return to Bangladesh because they became Christians and their life would be at risk. Friends and Mr [A] advised them to apply for protection.
The applicant claims that no one will accept her in her country including her family, relatives and friends. She will be considered an infidel and the punishment will be death. Her parents will disown her and never forgive her; she is a woman and has no rights to make decisions in her country. She cannot imagine what her parents will do to her. Also Islamic groups find non Muslims and kill them in broad daylight. She provides examples of killings by extremist Islamic terror groups. “We will be on the top of their list”. If they return to their country her family won’t accept them and they will have to live by themselves without support or shelter. If they ask the police for help they will question them about leaving Islam. If they return to their country they will be forced to convert back to Islam and if they do not do so they will be harmed.
Second named applicant’s claims in application for protection visa
In the application the second named applicant (applicant 2) states that he was born in [Dhaka]. He states that he was married to the applicant in Dhaka in 2009. He gives his religion as Christian/Presbyterian and his occupation as [Occupation 1]. He indicates that he first arrived in Australia as a student (2008), departed in December 2009 and returned to Australia in January 2010, departed Australia again in May 2013 and returned to Bangladesh and last arrived in Australia from Dhaka in July 2013. He entered Australia as a student using his passport issued in Dhaka in September 2007 expiring September 2017. He indicates that after arriving in Australia he lived in [State 1] until June 2014 when he moved to [State 2] and he provides residential addresses in [State 2] in [Suburb 1] and [Suburb 2].
In a statement dated 31 July 2015 applicant 2 states that he was born in [year] and grew up as a Muslim; he describes his religious upbringing. He states that he was beaten up when he was young because he questioned his religion. He states that according to Islam if a person does not believe Allah is the only God that person is an infidel and an infidel has no place on earth. Applicant 2 states that he decided to travel overseas from Bangladesh in 2008 for a better education and better degree. He gained admission to, and studied at, [named] College in [City 2]. He returned to Bangladesh in 2009 to get married and he brought his wife (the applicant) to Australia in 2011. He finished his studies [in] 2013. He decided to apply for skilled migration,through a [temporary] visa but the agent he paid money to upfront defrauded him and he had to move to [City 1] in June 2014 to try to find a sponsor for the visa; he had to borrow [a large sum of money] from family and relatives and then had to stay in Australia without a visa to work as he had a big loan to repay. The applicant describes how he met Mr [A] at the place he was staying at with housemates in [City 1] as Mr [A] used to come to share the gospel with them. Mr [A] and his wife then invited the applicants to dinner and invited them to join in Bible studies with others. Applicant 2 states that in the beginning he was not very interested in Christianity “but my wife was totally into it. I was only following her to churches and Bible studies”. He explains that he then started to think more about Christianity. He read the Bible and asked himself what he believed and it was not easy for him to convert as he would then lose everything. He could not stop himself following Jesus. He states that the reason he and his wife seek protection in Australia is that they converted to Christianity from Islam. If they return to Bangladesh they will be put to death. If his family learns that he is a practising Christian they will disown him and arrange for him and his wife to be killed. Christians are second class citizens and in minority in an Islamic country. His family members will do anything to save their reputation. Also Islamic group/s will find them and harm them and they will not be safe anywhere. In Bangladesh law enforcement is based on Islamic law so they cannot seek help even from the government. If they move to a new place people will want to know about them and they will find out their background. Many people are getting killed because they do not follow Islam. Applicant 2 claims that he wants to stay in Australia and keep himself and his wife safe and follow the word of God.
The applicants provide extensive materials, including media articles and reports relating to ill treatment and deaths of Christians/Christian converts in Bangladesh and other countries due to the actions of society, family members and terror groups.
Interview with delegate
The applicants were interviewed by the delegate about their claims on 1 February 2016 and that interview is referred to in the delegate’s decision record.
Application for Review
The applicants provided a copy of the delegate’s decision record with the application for review.
In a submission received by the Tribunal on 7 April 2016 the applicant gave examples of her parents’ religious practice to illustrate that they are conservative Muslims. She submitted that the delegate was wrong in concluding that her parents were not conservative Muslims. She also states that materials she had submitted shows that she and her husband will suffer serious harm from her family and/or the general public/society/community because they converted from Islam to Christianity.
The applicant submits that she mentions for the first time that her parents organised her marriage without her knowledge in 2003 but the day before she was to live with that man she discovered he had a mental illness and she remained living with her parents. For two years she hid from relatives and society because she was ashamed of the broken marriage. Her brother in law persuaded her parents to let her go to university which she did from 2005 till 2010 and she graduated with a bachelor of [Subject 1]. She married her present husband, whom she met through friends and [social media], in December 2009 without the families’ knowledge. The parents were angry but her family then came to accept the marriage and her father paid for her ticket to travel to Australia to be with her husband. Her parents were glad she was moving away as she had been divorced and this brought shame on the family. Her parents will not accept that she has converted to Christianity and will force her back to Islam. Muslims will put pressure on her father as [Position 1] of the Mosque Committee to convert her back to Islam and if she refuses the matter will go to the Muslim society. She will not be allowed to live as a Christian. The applicant states that her father will kill her and she cannot go to other family members because that will put them at risk. Her husband’s family will not help as his father has died and his mother is not happy with her because of the secret marriage. They will not be accepted by her as Christians.
On 7 April 2016 the Tribunal also received from the applicants a copy of a document dated 9 March 2016 described as from [Mr B], [Senior Official 1], [Organisation 1] stating that, “Mr. [C] is acted as a [Position 1] at [Organisation 1] from 2003”.
The applicant sent another submission to the Tribunal received on 14 January 2019 referring to her prior marriage arranged by her mother/parents and to the fact that her father once previously tried to attack her with a knife because she would not continue with the marriage her parents had arranged. She states that he said to her on that occasion, “I will kill you before the society look down on me”. She states that she secretly married her present husband without telling the families but when her parents started to look for a husband for her she told her [sibling] who told her father. She states that he then asked her to move out of the house and later she came to Australia to live with her husband. Before their daughter was born in Australia in [year] her parents sent them Islamic names but when they named her the parents started asking them too many questions so they have stopped talking to the parents They are worried about the safety of their daughter as a daughter of ex Muslims in Bangladesh.
On 14 January 2019 the applicants also sent the Tribunal a book entitled “Hiding in the Light”, by author Rifqa Bary, published in the UK in 2015.
The applicant attaches a [State 2] birth certificate for their daughter who was born in [City 1] in [year].
Tribunal hearings on 28 February 2019 and on 29 May 2019
The applicants produced their Bangladeshi passports to the Tribunal at the hearings; copies are on the Tribunal file. Also produced was a statement of their witness, Mr [A], dated May 2019; a copy of that statement is on the Tribunal file.
The statement of Mr [A] indicates, amongst other things that he is the senior pastor of [Church 1] in [Suburb 1/Suburb 3] where the applicants have attended Christian services and bible studies. He states that for the last 15 years he has been involved with Christian ministry in Bangladesh and he has been to the country 35 times. He states that “Islamic law is very clear that (if) a member of the family leaves Islam he/she should be put to death… The person if not killed would be completely expelled from the family and community. This makes it very difficult to find employment/and or to start a business and housing. Westerners find it difficult to understand the networking in such an Islamic society. …..To return to Bangladesh is very difficult. (The applicants) cannot return to their families and former communities for fear of reprisals and it would be difficult to survive on their own.”
At the hearings the Tribunal spoke with the applicants about their background, their “secret” marriage in Dhaka in 2009, the applicant’s prior marriage/relationship in Bangladesh which was arranged by her parents, the applicants’ families in Bangladesh, the applicants’ visa history, the practice of their Islamic religion in Bangladesh and Australia, the period when they remained in Australia without a visa and the delay in applying for protection in Australia until they were without any other avenue to remain in Australia legally, their claims about their conversion to Christianity from Islam and what they fear will happen to them if they return to their country. The Tribunal also spoke with the applicants’ witness, Mr [A].
Non Disclosure Certificate under s.438 of the Act

The Tribunal has considered the certificate on the applicants’ file issued by the delegate under s. 438 of the Act. The certificate refers to information in two folios on the applicants’ departmental file as being restricted because the disclosure of the information would be “contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs”. The Tribunal has had regard to the High Court decision in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 and the Federal Court decision in MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) and the Tribunal considers and finds that the s.438 certificate on the applicants’ file is not a valid certificate. The Tribunal considered the material referred to in the certificate and considers that the folios relate to administrative matters/checklists of the department; the material is not relevant to the claims made by the applicants and the Tribunal has not taken it into account in determining the application for review.
Country Information
The Tribunal considered the country information referred to in the delegate’s decision record relating to Christianity and discrimination and the incidence of some violence in Bangladesh against those who have converted from Islam to Christianity. The Tribunal also considered the articles and reports provided by the applicants in relation to incidents of violence against some Christian converts in Bangladesh, both by family members, community members, Islamic extremists and those who support those extremist groups.
The Tribunal considered DFAT Country Information Report Bangladesh, 2 February 2018 especially paras 2.29 in relation to the security situation which makes reference to a wave of small scale attacks by Islamic militants, including on religious minorities, between 2013 and mid 2016; paras 3.17, and 3.22 in relation to religious conversions which mentions societal pressure for individuals converting from Islam to Christianity and incidents of localised violence against Christian individuals and institutions including the murder of Christian converts by Islamist militants in 2016; paras 3.42 to 3.47 in relation to the situation of the Christian minority in Bangladesh; paras 5.1 and 5.4 to 5.6 in relation to police protection in Bangladesh.
The Tribunal also considered DFAT Country Information Report Bangladesh, 22 August 2019, where at para 3.35 it is stated that “DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections. Indigenous people who convert often do so in the context of community conversions, which carries a lower risk because Christian organisations are likely to integrate themselves into the communities providing schools, healthcare or other facilities. A lone convert in a smaller community would be likely to face a greater risk”. At paragraph 3.60 it is stated that “DFAT assesses that Christians face a low risk of societal violence in the form of occasional localised incidents. The risk is higher for Christians who convert from Islam in the context of a lone conversion without the support of their community or family, but the extent of that risk would then depend on individual circumstances. Like other minorities, Christians may face a risk of sporadic attacks from Islamic militants.”
The Tribunal also consulted independent country information about document fraud in Bangladesh. In addition to the DFAT Country Information Report Bangladesh, 2 February 2018 and DFAT Country Information Report Bangladesh, 22 August 2019 where it is stated at para 5.39 that “the use of fraudulent documents and fraudulently obtained genuine documents remains widespread”, the Tribunal also consulted Immigration and Refugee Board of Canada, Responses to Information Request, BGD105263.E, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015.
The Tribunal also consulted DFAT Country Information Report Bangladesh, 2 February 2018 and DFAT Country Information Report Bangladesh, 22 August 2019 in relation to state protection in Bangladesh.
FINDINGS AND REASONS
Essentially the applicants claim that they fear to return to Bangladesh and cannot return there because in Australia they have converted from Islam to Christianity. They claim that they have attended Christian (Presbyterian) churches and Bible classes and instruction in Australia since about mid 2014. They fear that they, and also their young child, will be harmed physically/killed by their family members who are strict, conservative Muslims, and/or by members of the Islamic community/society because they have converted from Islam and will be seen as infidels and punished. They fear that they will be forced to convert back to Islam and will be killed if they do not do so. They also fear harm from Islamic extremists because they are Christian converts. The applicants also claim that they fear harm because they will be without family/communal support in Bangladesh; they claim they will be ostracized from their family and the society/community in which they have lived in Bangladesh, they will have nowhere to live and will not be able to survive in Bangladesh. They claim that they cannot get protection from the harm they fear and cannot relocate elsewhere in their country because it will be, or become, known that they are Christian converts.
Identity and Country of Reference
The Tribunal accepts and finds that the applicants are who they claim to be and that they were married in Dhaka as they claim in December 2009. The applicants produced their passports issued in Bangladesh to the Tribunal at the hearings and copies are placed on the Tribunal file.
The country of reference for this application is Bangladesh.
Travel and Visa History
According to the details in the delegate’s decision record which the applicants produced to the Tribunal at the hearings, and the details in the applicants’ passports issued in Dhaka which were produced to the Tribunal at the hearings, the applicant was granted a [temporary] visa on 13 January 2011 and she first arrived in Australia [in] January 2011. She was granted further student/study visas in February 2012 and in April 2013. She left Australia [in] May 2013 and returned to Bangladesh returning again to Australia [in] July 2013. Applicant 2 first came to Australia in April 2008; his student visa on which he entered Australia was granted in March 2008. He was granted further student/study visas. He returned to Bangladesh between [December] 2009 and [January] 2010 and [in] May 2013 he returned again to Bangladesh returning to Australia [in] July 2013. With applicant 2 as the main applicant the applicants applied for a skilled temporary work visa (subclass [specified]) on 10 April 2014 which was refused on 30 May 2014. A subsequent application for review to the MRT was unsuccessful and the applicant and applicant 2 thereupon became unlawfully in Australia from the date of the MRT decision, 29 July 2014. The Tribunal finds that the applicants remained illegally in Australia from 29 July 2014 before they made their application for protection visas in July 2015; the applicants did not dispute this at the hearings.
The Tribunal accepts that the applicants stayed in Australia when they did not have a valid visa to remain here because applicant 2 wanted to work to repay a debt he/they owed to the applicant’s father/family, his parents in law; this was essentially the evidence of the applicants at the hearings. When the Tribunal spoke with the applicants about why they remained unlawfully in Australia both of the applicants said that they had borrowed money to apply for their visa, including from the applicant’s father. They said that their agent had defrauded them and did not find applicant 2 a sponsor which he needed to be granted his visa. They needed to work to pay back the loan because they had promised to repay it. Applicant 2 said that he did repay the debt during 2014/2015 using money he had and also money he earned working.
Claims that the applicants have converted to Christianity in Australia
The Tribunal finds that when the applicants came to Australia they were practising as Muslims having been raised in Muslim families in Bangladesh. The Tribunal finds that they practised their Muslim religion in Australia until around the time, or just after, they were without a valid visa to remain in Australia legally. These findings are supported by the applicants’ evidence before the Tribunal.
The applicant told the Tribunal that she practised as a Muslim until the time the agent defrauded them about their visa in Australia and their skilled visa application was refused; she thought that her God would do something to help them and that did not happen. She said that in Australia she practised Islam by praying at home; she did not go to the mosque in Australia and she had not done so in Bangladesh. She said that in Australia she prayed three to four times a day but did not pray the five times and she used to fast during Ramadan. She stopped doing that around the time they were refused the skilled visa, around June/July 2014. She said that she and applicant 2 came to [City 1] about June 2014 to try to find a sponsor for her husband’s work and they met Mr [A] (their witness) at a house where he used to preach Christianity. She said that they did not come to [City 1] to meet Mr [A] but he heard they were from Bangladesh; he has been to Bangladesh quite a few times and has worked with Christians who have converted from Islam and he knows that they suffer in Bangladesh. She said that she was still practising as a Muslim when she met Mr [A] in mid 2014 but she was “upset with God” then because of the visa refusal. She said that Mr [A] did not advise them that if they converted to Christianity they could claim protection but later told them, after they were caught without a visa by Immigration authorities in July 2015, that their families would not accept them in Bangladesh because they had converted to Christianity. The applicant said that she had converted to Christianity by around July/August 2014 when she started to read the New Testament. She explained that when they met Mr [A] in June 2014 he gave them a Bible as he always told Muslims and Hindus about the Bible; she started reading the Bible out of curiosity. The applicant agreed that she knew when she converted to Christianity in July/August 2014 that she would have difficulties if she returned to Bangladesh but she did not think to speak with Mr [A] about those difficulties at that time. The applicant said that it was only when she told Mr [A] about her fears of having to return to Bangladesh, which was a few days after Immigration told them they had to leave Australia in July 2015, that Mr [A] told them about protection visas and then they made the application. The applicant agreed that it was only after all other avenues were exhausted for her to stay in Australia legally that she got advice about protection visas and applied for protection. She agreed that she applied for protection in Australia because it was a last resort to enable her to remain in Australia but she said that she did not convert to Christianity as a last resort. When the Tribunal queried with the applicant why she had made the change from Islam to Christianity noting that the change only happened when she was without a visa to remain legally in Australia she said that she had done everything right (as a Muslim) and nothing right had happened for her. She said that Islam did not help her, so she looked for God in another way.
Applicant 2 told the Tribunal that he was brought up as a Muslim in his country and his family members are practising Muslims. He prayed five times a day, read the Koran and went to mosque in Bangladesh. He thought being a Muslim was a thing to be proud of and he knew/had no Christians friends. He believed in Islam and it was “a big thing” for him. He did however question some things about Islam without getting answers and some questions he could not ask. When he came to Australia he continued practising his Muslim religion for about 6 years; he prayed mostly at home as the mosque was a long way away but sometimes went to a mosque with some friends in [Suburb 4] ([City 2]). He never went to mosque after he came to [City 1] because he knew no one to go with. When the Tribunal asked him why he then changed his religion he said that at that time there was a lot going on for him; he had moved to [City 1] to try to find himself sponsor as he could not find anything in [City 2] and his agent had been trying to do “dodgy stuff”. When he was looking for a sponsor his application for the visa was refused by the MRT. He agreed that he was without a visa for about a year before he applied for the protection visa. He told the Tribunal that it was during this period that he converted to Christianity. When the Tribunal asked him if his conversion was to give him a better chance to stay in Australia he said “not really” and if that had been his intention he would have applied for the protection visa when he finished his studies. His intention was to get a skilled visa and to get a job to have a better life. He disagreed that he converted to Christianity so that he could stay in Australia. He said that Christianity helped him during a hard time. When he met Mr [A], and got to know him, Mr [A] explained Christianity and the gospel to him and that is how he converted. Applicant 2 said that he did not convert to Christianity “overnight” but he had converted by the end of 2014. He went through all his problems and shared things with Mr [A]; he read the Bible and went to Bible studies and met people whom he found were different. His wife was interested in Christianity earlier, from shortly after they developed a friendship with Mr [A], but then he (applicant 2) developed an interest in Christianity as well. He told the Tribunal that he partly became Christian because his wife became Christian but there are aspects of the religion that help him and also Christian people help each other and teach love. Applicant 2 said that he knew others in the church who had converted to Christianity and made protection visa applications. He said that there were a couple of others at the church and they probably converted because of Mr [A].
The Tribunal accepts and finds that the applicants have been regularly attending a Christian/Presbyterian Church and Christian Bible readings and studies in [City 1] for about five years, from about the time their skilled visa application was refused around mid 2014 until the present. Both applicants explained to the Tribunal that they practise their Christianity by going to church each Sunday most of the time; they explained that at the church service there is Bible reading, an explanation by the pastor about the meaning of the Bible chapter/reading and hymns and prayers. They attend [Church 1 in Suburb 3] and have done so regularly since 2014 and they have also attended at [Suburb 1] church to see Mr [A]. They also attend Bible study at Mr [A]’s place and sometimes Mr and Mrs [A] come to their place. Applicant 2 told the Tribunal that people at the church are Bangladeshi, Fijians and others from the local community. The applicants’ witness, Mr [A] notes in his statement, dated May 2019, in relation to the applicants, that, “The genuineness of the Christian gospel can only be observed over time. They attend [Church 1] and even when moving to [a different area] they still attend. They have been involved in bible studies on a regular basis.”
Not without some doubt about the matter, given the applicants’ conversion from Islam to Christianity only took place after the applicants were without a valid visa to remain in Australia, and also given that the Tribunal has some concerns about the credibility of some parts of the applicant’s evidence, the Tribunal accepts and finds that the applicants converted to Christianity during the second half of 2014 and that they are genuine Christians who will seek to practise their Christianity on return to their country. This finding is made having regard to the evidence of the applicants and their witness who is a senior pastor from [Church 1] at [Suburb 1/Suburb 3]]. While the Tribunal considers that the applicants’ conversion to Christianity in Australia was, initially, at least partly motivated by the applicants’ intention to at some stage make a claim for protection so that they could obtain a visa to remain in Australia, the Tribunal finds that their conversion to Christianity and their regular attendances at Christian church services and Bible study groups in Australia, over time, was not solely for the purpose of strengthening or making a claim for refugee status. While the applicants may have initially engaged in Christian religious practice in Australia to support protection visa claims the Tribunal finds that they have become, over the four to five years that they have been regularly attending Christian church and Bible studies in Australia, genuine practising Christians. In making these findings the Tribunal takes account of the fact that for about five years now the applicants have been engaged in regular Christian religious practice and the pastor of the church they have attended during that time has been prepared to give evidence on oath to the Tribunal indicating his support for them as Christian converts.
Support from family and community in Bangladesh
The country information consulted by the Tribunal indicates that there are no laws against religious conversion in Bangladesh and that there are no legal or other restrictions to prevent Christians from freely practising their faith and that Christians are entitled to equal treatment under the Constitution. The country information also indicates however that there have been sporadic attacks on Christians/Christian converts, and some localised violence against Christian converts, and that those who convert from Islam to Christianity can face societal pressure and violence and the risk of that societal violence will be greater where the convert is without the support of their community or family.
Given the country information available to the Tribunal, the Tribunal considered whether the applicants would be without the support of their family and community as they claim if they were to return to Bangladesh.
The applicant told the Tribunal that after she refused the person chosen by her parents for her to marry in 2003 her father was upset with her and asked her to leave the house. She also told the Tribunal however that her parents later agreed to her divorcing the person with whom they had arranged her first marriage after she refused to live with him because he had a “mental condition”. Further she told the Tribunal that she remained living in the family home for many years until she left Bangladesh to come to Australia in 2011, she attended university in Dhaka between 2005 and 2010 and did an internship in Dhaka with a company as part of her studies before she came to Australia. She said that her father/parents paid for her to go to university and paid for her travel to Australia in 2011. She also told the Tribunal that her father loaned her and her husband money, after she had come to Australia, to help pay money in connection with a visa application in Australia. The applicant also told the Tribunal that at the time she married applicant 2 in Dhaka in 2009 her parents did not know about the marriage but later learned about the marriage after the applicant told her [sibling] about it. Her parents then accepted her “secret” marriage to applicant 2 and arranged a celebration of that marriage for her relatives and her husband’s relatives in 2013 when the applicants returned to Bangladesh. She claimed before the Tribunal that her father tried to kill her with a knife in 2003/2004 but the Tribunal does not accept this is true. She agreed with the Tribunal that she had not made this very serious claim previously saying that she was ashamed and that when the delegate refused her application for protection she felt she had to tell about it but the Tribunal considers that this claim is recent invention by the applicant to assist her claims for a protection visa. In the Tribunal’s view the applicant’s evidence about her family and background in Bangladesh, before her conversion to Christianity in Australia, indicates that her family including her father has been a support to her, including a financial support, both when she was living in Bangladesh and after she travelled to Australia.

The Tribunal accepts and finds however that there has been increasingly less contact between the applicants and their families in Bangladesh since they have converted to Christianity in Australia; this was the evidence of both applicants before the Tribunal. Applicant 2 told the Tribunal that the last financial support he had from his family was a loan they gave him in 2014/2015. The applicant said that she had been talking to her parents up until the beginning of 2019 but in February 2019 she questioned her mother’s intention to go to Mecca given that she is sick and it is physical and anything can happen. The conversation with her mother became heated and her mother asked her not to call; the family now feels she has said something against Islam and she does not now talk to her [sibling] (from the beginning of this year) or her [other sibling]. The applicant said that she had been in contact with her parents when the baby was born in [year] and her parents sent her Islamic names for the child which became “a big drama” and they thought it best not to talk to her parents so frequently; she sent her parents photos of the child around her first birthday but contact lessened after that.
The applicant also told the Tribunal towards the end of the first Tribunal hearing that in February 2019 her mother said she was an infidel as she told her mother in the conversation in February 2019 about things Mr [A] had said to her; she told her mother about meeting Mr [A] and reading the Bible. The Tribunal does not accept that this evidence is truthful. The applicant did not mention speaking to her mother about meeting Mr [A] and the Bible when the Tribunal initially asked the applicant about her family and about the conversation she had with her mother in February 2019. The Tribunal does not accept as reasonable or plausible her explanation about why she did not mention it earlier to the Tribunal; she said that she did not think that the Tribunal wanted to speak about it in detail. At the second Tribunal hearing the applicant said further that her mother was screaming after she told her Mr [A] gave her a Bible and told her she could not read the bible and told her to wash herself and she has not heard from her mother since. The Tribunal considers that this is an embellishment of the applicant’s claims about her fear of harm from her family whom she claims will kill her as an infidel.
At the first Tribunal hearing the Tribunal spoke with the applicant about her husband’s family. She said that they live in the newer part of Dhaka. His father passed away but her husband had contact with his mother and his brother who is a [Occupation 2]. She told the Tribunal that her husband has sent photos of their daughter to them. The applicant said that it is hard to contact his mother and she is “not happy” with them. If they return to Bangladesh his family will not take responsibility for them and they will not be able to live with them. When the Tribunal asked the applicant at the first Tribunal hearing if her husband’s family know he has converted to Christianity she said “not the whole thing” but said that her mother/[sibling] called her husband’s brother and told him about the incident when she (the applicant) had told her mother she should not travel to Mecca. At the second Tribunal hearing the applicant said that her family told applicant 2’s elder brother about his conversion after she had spoken to her mother in February 2019. She said that although applicant 2 was in contact with his brother and sister they then asked him not to call and this was around the same week in February 2019 in which she spoke with her mother; applicant 2 gave her this information. When the Tribunal spoke with applicant 2 about his family he said that his mother, his brother and his sister are practising Muslims. He said that he did not tell his family that he married in 2009 as the family usually finds someone. His family still do not know that the applicant was married before. When his mother met his wife she said that she could have got a better girl for him and they spoke about this in front of other relatives. Applicant 2 said that he has not spoken to his wife’s family members since they returned to Australia from Bangladesh in 2013. Applicant 2 told the Tribunal that the last financial support he received from his family was the loan he received from them in Australia in 2014/2015. When the Tribunal asked applicant 2 what would happen to him if he returned to Bangladesh he said that he will suffer social discrimination because he has converted and also his family do not want to see him. He also said that there are groups of people in the country who do not want infidels living around them in the community, and there are Islamic groups who look for infidels to kill them.
The Tribunal spoke with the applicant about the document dated 9 March 2016 described as from [Mr B], [Senior Official 1], [Organisation 1] stating that, “Mr. [D] is acted as a [Position 1] at [Organisation 1] from 2003” . The applicant said that she submitted this document to the Tribunal to show that her father is [Position 2] and [Position 1] of an Islamic institution/mosque in Bangladesh. She said that he has been associated with this institution/mosque for many years and that he was involved before 2003 also. When the Tribunal asked the applicant about the document and where the document came from she said that when she came she brought it with her from Bangladesh to show what her father does. She said that she gave the paper to the delegate but it was after the decision was made. She said that she did not provide the paper earlier as she did not know the delegate would not believe her family was very religious; she said that the delegate did not raise any questions with her about this. The Tribunal does not accept as true that the applicant brought this document with her from Bangladesh as it is dated in March 2016 and the applicant came from Bangladesh, in 2011 and in 2013, before the date of the document. Having regard to the date of the document and the country information consulted by the Tribunal about the prevalence of document fraud in Bangladesh, which information was discussed in a general way with the applicants at the hearing, the Tribunal finds that the document dated 9 March 2016 was obtained by the applicant after the delegate’s decision, dated 26 February 2016, to counter the delegate’s concerns in that decision about the applicants’ claims that their parents were strict and conservative Muslims. The Tribunal finds that the document is not reliable evidence of the facts in it. The Tribunal does not accept as true that the applicant’s father held any positions at an Islamic institution/mosque in Bangladesh.
The Tribunal accepts however, and finds that the applicants both came from Muslim families in Bangladesh, that their families are reasonably well off financially and that their family members are practising Muslims who are conservative. This was their evidence before the Tribunal. Applicant 2 told the Tribunal that his father was a [Occupation 3] before he passed away, his brother in Bangladesh is a [Occupation 2] and his sister in Bangladesh is a housewife. He said that his father left them rented units; the family own a [building] in Dhaka and the family lives in [a part of the building]. They are practising Muslims. The applicant told the Tribunal that her father was in [government service] and was a store manager before he retired in 2000/2001 but he now owns property and shops and gets rental income from them; she said that the family is reasonably well off financially from the rental income and that her family members are strict conservative practising Muslims.
The Tribunal accepts that there has been a degree of estrangement from, and less contact with, family members in Bangladesh since the applicants have become interested in, and converted to, Christianity in Australia.
Harm in Bangladesh
While the Tribunal does not accept that the applicants, or either one of them, fears being harmed physically by any of their family members, having regard to all of the information before it, including the evidence of the applicants’ witness, the Tribunal finds that if the applicants were to return as Christian converts to Dhaka, which was where they lived for many years before they came to Australia, the applicants and their child may not be accepted by their family members and the Islamic community there, because of their conversion from Islam to Christianity, and they then would be isolated and without support in Dhaka, from family and community members. The Tribunal accepts that this could make it very difficult for the applicants to find work and housing in Dhaka. Further, having regard to the country information consulted by it, the Tribunal finds that, in this situation of lack of support and isolation from family and community, the applicants would face a higher risk of societal violence and pressure because of their conversion from Islam. As noted above DFAT Country Information Report Bangladesh, 22 August 2019, at para 3.35 states that “… the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections. Indigenous people who convert often do so in the context of community conversions, which carries a lower risk because Christian organisations are likely to integrate themselves into the communities providing schools, healthcare or other facilities. A lone convert in a smaller community would be likely to face a greater risk”. At paragraph 3.60 it is stated that “……Christians face a low risk of societal violence in the form of occasional localised incidents. The risk is higher for Christians who convert from Islam in the context of a lone conversion without the support of their community or family, but the extent of that risk would then depend on individual circumstances.” As part of the individual circumstances of the applicants, the Tribunal took into account the financial and other support that the applicants’ families have afforded to the applicants over the years, including the applicant’s family’s acceptance and celebration in 2013 of her secret marriage to applicant 2, but the Tribunal notes that this assistance and support was given to the applicants before the applicants’ families became aware of the applicants’ interest in/conversion from Islam to Christianity.
CONCLUSION
Having regard to all of the evidence and independent country information before it the Tribunal finds that the applicants fear harm in their country from members of the Islamic community/society there because they have converted from Islam to Christianity. The Tribunal further finds that there is a real chance that the applicants will face harm in the form of societal/community violence and pressure if they return to their country as Christian converts. The Tribunal finds that this harm which the applicants fear involves 'serious harm' as required by paragraph 5J(4)(b) of the Migration Act in that it involves a threat to life or significant physical harassment or ill-treatment. The Tribunal considers that religion is the essential and significant reason for the persecution which the applicants fear, as required by paragraph 5J(4)(a) and that the persecution which the applicants fear involves systematic and discriminatory conduct, as required by paragraph 5J(4)(c). The Tribunal is not satisfied that the applicants can relocate to avoid the harm they fear as in the Tribunal’s view the risk of this harm exists throughout Bangladesh; paragraph 5J(1)(c). Nor given the country information consulted by the Tribunal is the Tribunal satisfied that there are effective protection measures available to the applicants in Bangladesh for the purposes of section 5LA; the Tribunal had particular regard to paras 5.1 and 5.4 to 5.6 of DFAT Country Information Report Bangladesh, 22 August 2019 in relation to state protection in Bangladesh.
For the reasons given above, the Tribunal finds that each of the applicants has a well-founded fear of persecution for reasons of his/her religion if he/she returns to Bangladesh now or in the reasonably foreseeable future. There is nothing in the evidence before the Tribunal to suggest that the applicants, or either one of them, has a right to enter and reside in any country other than his/her country of nationality, Bangladesh.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Ms Christine Long
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)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 Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but 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 Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6794

24 September 2019

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