1605572 (Refugee)

[2016] AATA 4498

1605572 (Refugee) [2016] AATA 4498 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605572

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Antoinette Younes

DATE:9 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 September 2016 at 4:21pm

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] October 2012. The delegate refused to grant the visa [in] August 2014.  The applicant had previously made an application for protection [in] March 2005 which was refused [in] March 2005. On 26 April 2005 the Refugee Review Tribunal affirmed the Department’s decision.

3. When the applicant lodged the application [in] October 2012, it was deemed invalid due to the bar in s 48A of the Act. Section 48A of the Act imposed 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. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection.

4. On 19 January 2016, a differently constituted Tribunal affirmed the delegate’s decision of [October] 2012. In April 2016, the Court remitted the matter to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal on 5 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The issue in this case is whether there are 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 the applicant will suffer significant harm: s 36(2)(aa) of the Act.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. 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).

10. 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’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

    Application for a protection visa of [October] 2012

12. In the application for a protection visa, the applicant claimed that he was born into a conservative Muslim family and that he is a moderate and liberal thinker. He stated that “Gradually I started distancing me from Islam. I converted to Christianity. I fear I will face significant harm due to my religious conversion. I fear I will be harmed because the Islamic fundamentalists consider me as apostate. Apostasy is considered as sin by the Bangladesh Islamic society. Further, because of my long stay in Australia, I will be considered as a Westerner and will be harmed. I fear I will face real risk of harm including torture, degrading, inhuman and cruel treatment at the hands of the Islamic fundamentalist[s]. I fear I will not get adequate state protection because Islamic fundamentalist[s] have influence among the authorities”. Although the applicant referred to a detailed statement to be provided subsequently, no such statement was provided.

13. In submissions to the Department dated [in] October 2012, the applicant’s former representative, indicated that a statutory declaration of the applicant would be provided, no such statutory declaration was provided. In essence, the representative summarised the law and stated that “…..we submit the application now lodged is expressly made in reliance only on s.36(2)(aa)….”.

14. The applicant provided copies of photographs of himself and others inside and outside [Church A in Location 1], and a certificate of baptism dated [in] August 2010 from the [Church A in Location 1].

    Material provided to the Tribunal

15. In support of the application for review, the applicant provided copies of the following:

    a.Delegate’s decision record, setting out the applicant’s claims, migration history and summary of the responses the applicant provided in the course of a Departmental interview.  In relation to the applicant’s migration history, the decision record indicates that the applicant arrived in Australia [in] January 1996 as the holder of a [temporary] visa and from [date] April 1996 until he lodged the second application for a protection visa, the applicant had lodged a number of visas, reviews, appeals to the Courts including the High Court, requests for ministerial intervention, and periods of unlawfulness. In the course of the Departmental interview, the applicant claimed that he does not want to return to Bangladesh because he had converted to Christianity in 2010 and he would be perceived as a Westerner. He said he would be harmed by representatives of the Jamaat-e-Islami.  When asked why in the application for a protection visa he had stated that his religion was Islam (question 14 on form C), he stated that this was an error. When asked why he did not apply for a protection until 2005, almost 9 years after his arrival in Australia, he stated that he had applied for skilled migration. When it was indicated to him that the RRT, when determining the review in relation to the first application for a protection visa had noted that his understanding of Christianity was “threadbare”, and that he was not baptised until 2010, he stated that he did not realise he had to be baptised for migration purposes. The applicant indicated in the interview that he was raised as a Muslim but he only practised Islam a little. On various occasions, he was asked if he renounced the teachings of the Prophet, he did not answer. He stated that he last had involvement in Islam 4 to 5 years ago and that his conversion to Christianity occurred in 2005. In essence the delegate did not accept that the applicant had genuinely converted to Christianity.

    b.Baptism certificate dated [in] August 2010, health discharge assessment, translations from the Daily Inqilab, newspaper articles relating to incidents in Bangladesh and ill-treatment of Christians and Christian converts, DFAT smart traveller advice, Wikipedia publication in relation to the death of Ahmed Rajib Haider.

    c.Statement of [Ms A], undated. In summary, she states that she has known the applicant to be a practising Christian. She states that, about seven years previously, the applicant was thrown out of the flat he was sharing with another friend [Mr B]. [Mr B] was angry when he found out that the applicant was attending [Church A] in [Location 2], and no longer wanted to know him. [Ms A] says she was not surprised by this reaction as she and her mother visited Bangladesh many times before they ever met a member of a minority in Bangladesh. She herself married a Buddhist from Bangladesh about five years ago. She says that life in Bangladesh is very difficult for anyone who is not rich, but for minorities it is much more difficult. She has been told that, up until the first Gulf war, Christians in general were not particularly targeted, but after that war their shops were boycotted and their land became the subject of “land grabs”. She says that proselytising in Bangladesh, while not illegal, is extremely dangerous. She also states that the applicant is not well and extremely depressed.  She understands that people with mental illness in Bangladesh are treated badly “to the point of persecution”.  She says that there is no medicare or social security in Bangladesh and that she fears the applicant will be homeless as he has no family that will accept him, and that, given his lack of access to adequate medical care, he will die in the streets.

    d.Statement of [Ms C]. [Ms C] is [Ms A]’s mother. Her statement is in substance a submission. The submission acknowledges that the applicant had previously been assessed under the Refugees Convention, but his claim had been rejected. [Ms C] notes that the applicant would be “covered by the complementary protection legislation” as he has no family or friends who will support him or provide him with food or shelter on return to Bangladesh, particularly as he is now [age] years old and has been away from Bangladesh since 1996. She states that he lacks contacts to help him find a job, unemployment rate is higher than 30%, he would not be able to purchase the medications he needs, he would be tortured at the hands of fanatical extremist Muslims, he would be “easy prey” for the extremists, he would be punished because he is a Christian, and for his religious beliefs. She refers to [Mr B], who was suffering from [medical condition] and the applicant was his official carer. When [Mr B] discovered from a mutual friend that the applicant had become a Christian and was attending church in [Location 2], he wrote to the Department advising them that the applicant was no longer his carer and then evicted the applicant from his home.

    e.Report of [a doctor] dated [in] August 2015 referring to the applicant’s medical history and conditions.

    f.Reference from [Reverend D], of [Church A], [Location 1] Parish, dated [in] March 2015. [Reverend D] states that the applicant was baptised as a member of his congregation [in] August 2010, and has attended worship services on a regular basis since that time. He describes the applicant as a person of faith, whom the Parish is privileged to have as a member.  He says that the applicant has recently spoken to him about his hopes to volunteer in one of the Church’s Ministry projects. He states that as far as he is aware, the situation in Bangladesh is not conducive to the applicant’s safe return, and that being a Christian convert, the applicant is an especially vulnerable person. [Reverend D] states that the Church supports the applicant. 

    g.Letter from [Mr E] dated 25 March, (the year is not known). In summary, this letter states that an arrest warrant had been issued in relation to the applicant, and that his life was not safe in Bangladesh.

    FINDINGS & REASONS

    Country of nationality

16. On the basis of the available information, the Tribunal finds that the applicant is a national of Bangladesh.

17. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against the Bangladesh as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

    Has the applicant converted to Christianity?

18. The applicant gave evidence that he was born in Bangladesh to an Islamic family of the Sunni faith. The Tribunal asked the applicant if he had practised Islam in Bangladesh and he stated he did not; he stated that he did not fast, or pray five times a day, or go to the mosque. The Tribunal asked him why he did not practise his faith to which the applicant replied that he did not like how the Prophet waged war and killing people. He said if one does not like the actions of the Prophet, it is difficult to like or follow. The Tribunal asked the applicant when he last had any involvement with the Islamic faith and he stated since his arrival in Australia, apart from having Muslim friends whom he visits at their homes, he has not been involved in the Islamic faith at all. He stated that he does not attend or get involved in any Islamic religious activities, functions or festivals.

19. The Tribunal asked the applicant if he has renounced Islam and he stated that he had when he formally converted to Christianity in 2010.  The Tribunal asked him what happened in 2010 for him to want to convert to Christianity and he stated that nothing specific had happened in 2010 but it was a “matter of heart and mind”. The applicant stated that he converted to Christianity [in] August 2010 when he was baptised. The Tribunal asked him when he had made a decision to become a Christian and he stated that when he was in Bangladesh, he had the inclination but he did not convert to Christianity. The Tribunal asked him what kind of Christian related activities he was involved in prior to his conversion to Christianity and prior to the baptism. He stated that he talked to friends about Christianity and he studied any books he could lay his hands on. The Tribunal asked him which specific books he had studied to which the applicant stated that he had studied the “Bible… small books” given to him by his friends. The Tribunal asked him about the small books and he stated he could not remember but the small books involved “plenty of subjects” which now he does not recall, especially in the last couple of years because he suffers from [medical conditions]. The Tribunal indicated to the applicant that his evidence about his Christian involvement appears to be vague.

20. The Tribunal asked the applicant if he had read the Old or the New Testament and the applicant did not answer; he stated that he was given the Bible.  Subsequently he stated that he had read the “old Testament, I think so” in the detention centre.

21. The Tribunal indicated to the applicant that in the delegate’s decision record that he provided to the Tribunal, it is noted that in the course of the Departmental interview, he had claimed that he was last involved in the Islamic faith about 4 to 5 years ago and that he had converted to Christianity in 2005 which appear to be inconsistent with his oral evidence. The applicant responded by stating that in 2005 he was interested in Christianity but he was baptised in 2010. The Tribunal further noted that in the course of the interview, he had stated that he read the New Testament which is inconsistent with his oral evidence that he read the Old Testament. The applicant now stated that he read both the Old and the New Testaments. He stated that in detention, he read a lot although not every page; he read pages relating to his areas of interest.

22. The Tribunal asked the applicant if he knew the difference between the Old and the New Testaments and he stated that [Reverend D] who was giving evidence in the course of the hearing would be able to explain those matters to the Tribunal. The Tribunal asked him if he understood the difference to which the applicant replied that he cannot remember anything and he cannot explain anything to the Tribunal. He stated that he is forgetful.

23. The Tribunal asked the applicant to which denomination of Christianity he belongs. He replied “I like Jesus and that’s it”. Upon further questioning by the Tribunal, the applicant stated that he is Catholic and he is faithful to Jesus. He stated that “Jesus is Catholic” so he is Catholic. The applicant knew that the head of the Catholic Church is the Pope but when asked about the current Pope he stated that he could not recall. He stated that he has recently seen the name of the Pope on Facebook but now he cannot recall.  The Tribunal asked the applicant if he has any favourite stories in the Bible and he stated that he could not recall.

24. The Tribunal expressed concerns that the applicant’s Christian knowledge does not appear to be consistent with that of someone claiming to have been involved in Christianity for many years. He stated that he attends [Church A]. The Tribunal asked him why he attends [Church A] in particular and he stated because he was baptised at [Church A]. He then asked the Tribunal if [Church A] is the same as the Catholic Church. In further explaining his limited knowledge in Christianity, the applicant stated that all faiths commenced with Jesus and any difference in denominations is created by man.

25. In post hearing submissions, the applicant indicated that:

    a.When the Tribunal asked about when he converted to Christianity, he was interested in Christianity in Bangladesh and had met Christians there. He read books about Christianity and secretly attended Christian activities but because his family and the neighbourhood were Muslims, it was impossible to discuss Christianity publicly or to convert to Christianity overnight.

    b.After his arrival to Australia, he became more interested in Christianity but as most members of the Bangladeshi community in Australia are Muslims, they never discussed religion. One of his Muslim friends was married to a Christian woman and he discussed Christianity with her. She is a practising Catholic but the applicant did not go to church with her and at that time he thought all Christians were Catholics. About 4 to 5 years ago, he decided that he was a Christian and then converted formally in 2010 when he was baptised.

    c.He found a Christian church near where he lives, [Church A] in [Location 3] and he decided to go to that church. His idea about Christianity is that one is a Christian if one loves Jesus. He regularly attends the Church and have found the whole congregation to be very welcoming. He is learning a lot about Christianity through his attendance but it takes time especially as his language is Bangla. Whilst he can read and write English, his conversational English is not very good.

    d.When the Tribunal asked him about the different denominations of Christianity, at first “I only knew about Catholics (the Christians I knew in Bangladesh were Catholics)”.  When he came to Australia he met his friend’s wife who is a Catholic then he found the [Church A] in [Location 3]. He knows there are different denominations within Christianity; there are Catholics, Anglicans, Orthodox, and others. The different churches have different principles but those principles are made by man.

1. The Tribunal has carefully considered the applicant’s explanations relating to his lack of knowledge about aspects of Christianity. The Tribunal is not convinced or persuaded that the applicant’s ill health accounts for his inability to tell the Tribunal about basic concepts and principles of Christianity. In the course of the hearing, he demonstrated little or no understanding of the concept of denomination, or the difference between Catholicism and the [Church A].  In subsequent submissions, he states that he understands the difference but that was not his evidence in the course of the hearing raising doubts for the Tribunal about those subsequent submissions. The Tribunal prefers the applicant’s oral evidence rather than his version as described in the subsequent written submissions. In the course of the hearing, the Tribunal is satisfied that the applicant was given ample opportunity to explain his understanding of the various denominations. The applicant claimed to have read the Bible but he was inconsistent about whether he read the Old or the New Testament. He was unable to tell the Tribunal about any story in the Bible despite claiming to have read parts which are of interest to him.  When asked if he knew the difference between the Old and the New Testaments, he referred the Tribunal to [Reverend D] for an explanation. In a number of aspects, the applicant’s evidence in the course of the hearing was inconsistent with his responses in the Departmental interview as summarised in the delegate’s decision record. The Tribunal acknowledges that one’s faith is personal and there are no prescribed rules or guidelines. The Tribunal further acknowledges that the applicant comes from Bangladesh and that his first language is not English which undoubtedly would have impacted on his development of religious understanding. However, the Tribunal is satisfied that the applicant’s knowledge of Christianity is incommensurate with his claims of having converted, whether it was in 2010, or at any other time.

2. In the course of the hearing, the Tribunal discussed with the applicant the delay in lodging the first application for a protection visa. The applicant gave evidence that he came to Australia in 1996 as the holder of a [temporary] visa, the validity of which he could not remember. He stated that he has had [number] years of education and that when he was in Bangladesh, he had a small business. The Tribunal discussed with the applicant his migration history as summarised in the delegate’s decision record. The Tribunal indicated that he lodged the first application for a protection visa in March 2005 subsequent to him being detained for being unlawful. He stated that he did not apply for a protection visa earlier because he thought he would be granted an independent migration visa. The Tribunal noted that the subclass 126 (Independent) visa was refused in November 1999 which still does not account for the over five year delay in lodging the first application for a protection visa. The applicant stated that he consulted his former representative who wanted a lot of money – he asked for $4000 to assist with the application for a protection visa. The Tribunal is not convinced or persuaded by the applicant’s explanations. The Tribunal is satisfied that the delay in lodging the application for a protection visa supports the Tribunal’s findings that the applicant does not fear harm on the basis of his claimed conversion to Christianity.

3. The Tribunal discussed with the applicant the letter from [Mr E] dated [in] March, stating that an arrest warrant had been issued in relation to the applicant. The Tribunal asked the applicant why an arrest warrant had been issued and he had substantial difficulties explaining to the Tribunal details of the warrant; he stated that terrorists groups had to be pacified. He said his father was shot in October 2005 but he does not know the identity of the offenders but they initiated the arrest warrant. The Tribunal indicated to the applicant that it would further consider the weight that it would place on the document but noted that document fraud is prevalent in Bangladesh, with which the applicant agreed. The Tribunal is of the view that the applicant was unable to articulate in a coherent manner significant details about the document. Given the credibility concerns the Tribunal has about the applicant and his evidence in the course of the hearing relating to the document, the Tribunal has decided not to give the document weight. On the basis of the available information, the Tribunal finds that there is no arrest warrant in relation to the applicant, his life is not in danger in Bangladesh on this basis, and his father was not shot as claimed.

   The evidence of [Reverend D], [Ms C] and [Ms A]

4. [Reverend D] gave evidence that the applicant has been consistently engaged with the [Church A] and that he helps at morning tea time and donations. The Tribunal indicated to [Reverend D] that in his role, it would be unreasonable to question one’s aims in involvement in the Church. [Reverend D] agreed that it is not his role to question the purpose and that he essentially accepts that participants in the Church do so in good faith. The Tribunal asked [Reverend D] if he would expect a person in the applicant’s position to understand the difference between Christian faiths such as Christianity and the [Church A]. [Reverend D] confirmed that he would expect such an understanding. 

5. In accordance with s.424AA, the Tribunal discussed with the applicant the evidence of [Reverend D] and his confirmation that he would expect a person in the applicant’s circumstances to understand the distinction between Christian faiths.  The Tribunal pointed out to the applicant his earlier evidence indicating that he did not understand the difference between Catholicism and the [Church A] faiths, contrary to [Reverend D]’s evidence. The applicant essentially stated that it takes some time to fully appreciate Christianity and he is still in the process of gaining knowledge. He stated that he needs more time to gain a deeper understanding of Christianity. The Tribunal is not persuaded by the applicant’s explanations.

6. In a post hearing letter to the Tribunal dated [August] 2016, [Reverend D] stating “…It has perhaps been remiss of me not to have spoken at greater length with [the applicant] about denominational differences within the universal Church. One reason for this oversight, however, is the strong ecumenical commitment of the congregation whose worship draws from all Christian traditions (as well as various wisdom traditions including Sufi, Hindu and Buddhist).  We are neither Protestant nor Roman Catholic, but identify as “post-mortem Catholic”, or sacramental….. Ultimately, the more thoroughly Christian I become the less it matters my being Christian. These can be difficult and paradoxical concepts to express in a short space of time….”. The applicant’s love for God and for Jesus is seen in the way the applicant talks about his faith, as well is the way he offers himself in pre-and service. The Church council has been impressed with the applicant’s humility, patience and long-term commitment. The Tribunal has genuine respect for the views expressed by [Reverend D] and the Tribunal has carefully considered his post hearing comments. The Tribunal acknowledges that denominational differences are difficult concepts but the Tribunal is of the view that it is reasonable to expect a person claiming to have converted to Christianity to have a better understanding of denomination than what the applicant was able to communicate to the Tribunal in the course of the hearing.

7. The oral evidence of [Reverend D] is significant and the fact that the applicant and on his own evidence needs more time to gain a deeper understanding, indicates to the Tribunal that the applicant’s understanding of Christianity is limited, contrary to his claims that he has been a practitioner for many years and that he has converted to Christianity.

8. In summary, [Ms C] gave evidence that she has been to Bangladesh a number of times and has observed the ill-treatment by fundamentalist Muslims of converts.

9. [Ms A] gave evidence that the applicant’s conversion to Christianity is real and that if he were to return to Bangladesh he would be harmed. She referred to [Mr B] who asked the applicant to leave when he discovered that he had converted to Christianity.  [Ms A] stated that she went to Bangladesh last year and observed the ill-treatment of converts and that it is difficult to be of a minority faith in Bangladesh.

10. The Tribunal has given regard to the oral evidence of the witnesses as well as their written statements.  The Tribunal recognises that the witnesses hold a belief that the applicant is a Christian convert. [Ms C] and [Ms A] recounted their own personal experience in Bangladesh and the Tribunal does not doubt their personal experience, however the determination as to whether the applicant has converted to Christianity is a matter for the Tribunal.

11. The applicant has provided a baptism certificate and the Tribunal accepts that the applicant has been baptised [in] August 2010. However in consideration of the evidence as a whole, and given the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that the applicant is a Christian of any faith, or that he has converted to Christianity, or that the baptism certificate is conclusive evidence of his Christianity, or that his Christian-related activities such as attending church and assisting mean that he is a genuine Christian, or that as a result of those activities, he would be perceived as being a Christian. The Tribunal accepts as plausible that the applicant was the carer of a person called [Mr B] and that [Mr B] had evicted the applicant, however on the basis of the available information and given the Tribunal’s concerns about the applicant, the Tribunal does not accept that the eviction by [Mr B] is evidence that the applicant had converted to Christianity or that he is a genuine Christian; there could be many reasons for the eviction and the Tribunal can only speculate.

12. The Tribunal has carefully considered the evidence individually and cumulatively. For the stated reasons and in essence, the Tribunal does not accept that the applicant is a genuine Christian convert. The Tribunal accepts as plausible that the applicant does not practise Islam, however the Tribunal does not accept that this means that he has converted from Islam to any other faith, including but not limited to Christianity, or that he is a practitioner of any religious faith.

    Other claims

13. The Tribunal asked the applicant about his claims of harm on the basis of his medical condition and being perceived to be a westerner. The applicant reiterated his claims of fearing harm on the basis of his conversion to Christianity. He also stated that he would be attacked and would not be able to get his medication. In relation to his claim of being perceived as a westerner, he said that those who shot his father would harm him. He said his neighbours would not be able to help and he would not be able to get social support.

14. In the post hearing submissions, the applicant stated that because he has lived in Australia for 20 years if returned, he would be regarded as a westerner by the locals who will assume wealth. He does not have a lot of money and he would be known as a Christian convert. Converts are treated badly in Bangladesh.

15. The Tribunal has not accepted that the applicant has converted to Christianity. Therefore, the Tribunal does not accept that the applicant would suffer any harm on the basis of conversion to Christianity. The applicant has lived in Australia for a significant period of time – over 20 years. In relation to the claim of being perceived a westerner, in consideration of the evidence as a whole, the Tribunal is satisfied that having lived in Australia for such a period of time, without more, has not given an applicant a profile that would be of adverse interest to any individual, group, or institution in Bangladesh. In its 5 July 2016, the Department of Foreign Affairs and Trade (DFAT), Country Information Report, Bangladesh, DFAT noted that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily – “… Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia”[1]. The Tribunal is satisfied that the claim that he would be perceived as being wealthy as a result of having lived in Australia for 20 years is speculative but in any event even if the Tribunal were to accept that the applicant would be so perceived, as the Tribunal has not found that he has any adverse profile, the Tribunal is not satisfied that there is a real risk of significant harm on this basis. The applicant is not suggesting and there is no evidence that the applicant has engaged in political activities that would have given him any profile of adverse interest.

    [1] In its 5 July 2016, the Department of Foreign Affairs and Trade DFAT, Country Information Report, Bangladesh, at para 5.22.

16. The Tribunal acknowledges that the fact that the applicant has lived in Australia for many years could mean that in the case of his return to Bangladesh, it is plausible that he could face difficulties in finding accommodation and employment. However, the Tribunal is of the view that those difficulties could be faced by any person moving to another area where they have not lived for some time and on the basis of the available information, the Tribunal is satisfied that any such difficulties that could be faced by the applicant do not amount to significant harm as contemplated by the Act. In relation to health standards and provision of services, DFAT reported that “the standard of health care in Bangladesh is low by international standards, and the quality of care in both public and private institutions is poor. Healthcare services are predominantly financed by households’ out-of-pocket payments…. There have been some significant improvements in health outcomes in Bangladesh over the past decade”, including an increase in life expectancy, declined in infant mortality, although malnutrition continues to be a problem[2]. The Tribunal understands that the report indicates substandard health services in Bangladesh but similarly, the report refers to significant improvements in health outcomes. The Tribunal is mindful that the applicant suffers from [medical condition] and other clinical conditions, and that it is possible that the clinical and medical services he would receive in Bangladesh are not the same as those available to him in Australia, however on the basis of the available information, the Tribunal is not satisfied that he would be denied access to adequate clinical services or that there is a real risk that he would face significant harm on this basis as contemplated by the Act.

    [2] Ibid, at 2.13 and 2.14.

    Is there a real risk of significant harm occurring to the applicant on his return to Bangladesh?

17. The Tribunal has considered whether the applicant’s Christian-related activities in Australia could or would give him an adverse profile for which there is a real risk of significant harm.  In its 5 July 2016, DFAT noted that:

    3.18 Bangladesh’s Constitution enshrines the principle of secularism while also proclaiming Islam as the State religion. The High Court upheld Islam as the state religion in late March 2016. The penal code makes it an offence to make statements or commit acts that demonstrate a ‘deliberate and malicious’ intent to insult religious sentiments.

    3.19 Islamic law can play a role in civil matters pertaining to the Muslim community but may not be imposed on non-Muslims. Family law has separate provisions for Muslims, Hindus and Christians. There are no legal restrictions on marriage between members of different religious groups, although DFAT understands that interfaith marriage is uncommon and is generally poorly regarded

    Christians

    3.30 There are approximately 600,000 Christians representing 32 Christian denominations in Bangladesh. Most live in the CHT and the northern border region, although a small number live in Dhaka. Christians in the CHT are predominantly indigenous and are physically and linguistically distinct from the majority Bengali population (see ‘Indigenous People’, above). Those living in and around Dhaka are not easily distinguishable from ethnic Bengalis.

    3.31 No legal or other restrictions prevent Christians from freely practising their faith. Christians are entitled to equal treatment under the law. Many Christian groups have established educational, health care, and welfare institutions with international support. They have made a significant contribution to public life, particularly in relation to social welfare – a legacy of historical and ongoing missionary efforts. Christians are able to access state schools, hospitals and other services.

    3.32 Opposition party activists committed acts of violence and incited protests against Christians during the 2014 election period because of their perceived political affiliation with the AL. Credible sources have told DFAT that Christians have periodically been subjected to sectarian violence because of perceptions that Christian churches are seeking to convert Bangladeshis. DFAT also understands that most religious conversion in Bangladesh involves conversion to Christianity.

    3.33 In recent months, Christians have been subjected to heightened levels of sectarian violence in line with the rise in Islamist militancy (see ‘Security Situation’, above). Militants shot and seriously injured an Italian priest in Dinajpur, northern Bangladesh, on 18 November 2015; sent death threats to two dozen Christian priests in November and December 2015; and killed Christian converts in Jhenaidah, west of Dhaka, and Kurigram, northern Bangladesh, on 6 January and 22 March 2016 respectively. ISIL has claimed responsibility for the first two attacks, and also claimed responsibility for the murder of a Christian shopkeeper in Bonpara, northwest Bangladesh, on 5 June 2016. Police were dispatched to protect churches and clergy in response to the militant death threats.

    3.34 DFAT assesses that Christians in rural areas, particularly in northwest Bangladesh, are subjected to a low level of sectarian violence. Despite the increase in attacks since late 2015, the number of casualties remains relatively low in proportion to the size of Bangladesh’s Christian population.

43.  In post hearing submissions, the applicant noted DFAT’s report that there were 600,000 Christians and who were treated equally at law. He however commented that whilst theoretically that may be correct, Bangladesh is an Islamic country and in reality people who are not Muslims are discriminated against in many ways. As noted above, the Tribunal has not accepted that the applicant is a Christian or that he has converted to Christianity.

44.  In consideration of the evidence as a whole, the Tribunal is satisfied that if the applicant were to return to the Bangladesh, he would not practise Christianity not out of fear but because he is not genuinely interested in the Christian faith. His Christian related activities in Australia are limited and the Tribunal is satisfied that those activities including his baptism in 2010 have not given the applicant an adverse Christian or religious profile of significance. The Tribunal accepts as plausible that the applicant in Bangladesh and in Australia has not been a strict practitioner or adherent of Islam but this does not mean that he is a Christian. The applicant is not specifically claiming that he has suffered harm on the basis of his limited practice of Islam in Bangladesh. The Tribunal understands that past harm is not determinative of future harm but past harm is nevertheless a reasonable indicator. If he were to return to Bangladesh and chooses to maintain his lack of practice of Islam, the Tribunal is not satisfied that he would be considered apostate, or that he would suffer significant harm on the basis of his limited Islamic religious practice or Christian-related activities in Australia.

45.  On the basis of the available information and in consideration of the evidence as a whole, the Tribunal finds that there is not a real risk of significant harm occurring to the applicant on his return to Bangladesh on the basis of his Christian related activities in Australia, or on any other basis.  For the same reasons, the Tribunal does not accept that the applicant as a result of his Christian related activities in Australia (if discovered), would be imputed with anti-Islamic views, or anti-authorities views, which would mean that he would face significant harm as contemplated by the Act. 

46. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient, what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal is not satisfied on the evidence before it that any difficulties the applicant could encounter would be ‘intentionally inflicted’ as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that any such problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’

47.  For the stated reasons, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Bangladesh, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa)

48.  There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Antoinette Younes
   Senior Member