1606699 (Refugee)

[2019] AATA 5839

1606699 (Refugee) [2019] AATA 5839 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606699

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Ms Christine Long

DATE:9 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2019 at 1:03pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – religion – ‘Christian Humanist’ – Ahmadiyya background – credibility issues – voluntary return to Bangladesh – prevalence of document fraud – delay in applying for protection – knowledge of Christianity – complimentary protection – online blogging activities in Australia – anti-Islamic materials – blasphemy laws in Bangladesh – purpose of operating blog to strengthen claim – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES

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

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

2. The applicant who is a citizen of Bangladesh applied for the visa on 10 January 2014 and the delegate refused to grant the visa on 12 April 2016.

3. The applicant appeared before the Tribunal on 1 February 2019 to give evidence and present arguments. The applicant told the Tribunal that he did not require the assistance of an interpreter as he spoke English and had done so before he left Bangladesh in 2006; he said that he learned English at school in Bangladesh and also he has been in Australia since 2006.

CRITERIA FOR PROTECTION VISA

1. 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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. 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’).

5. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

6. The Tribunal has before it the applicant’s departmental file which includes a copy of the applicant’s passport issued in Bangladesh as extended/renewed in Australia, the applicant’s application for protection visa, various documents given to the delegate in support of the application for the visa and the delegate’s decision record dated 12 April 2016. The Tribunal also has before it the applicants’ application for review to this Tribunal which attaches a copy of the delegate’s decision record.

   Claims in Application for Protection Visa

10.In his application the applicant claims that he was born in Dhaka in [month, year]; he claims he is of the ethnic group “Bangladeshi (Ahmadiyya)” and gives his religion as “Christian Humanist”. He indicates that he has never married. The applicant indicates that he lived in Dhaka at an address which he gives from January 2003 until June 2006 and was a student in Dhaka prior to coming to Australia.

11.The applicant indicates that he left his country through the international airport in Dhaka using his student visa and passport in his name.  He indicates that he first entered Australia as a student in June 2006 using a passport issued in his country in [2006]; the passport has been extended on occasions since that time by the applicant at the Bangladeshi High Commission in Canberra.

12.The applicant states that he returned to Bangladesh in September 2006 for [number of] days to see his family. The applicant indicates that his father (born in [year]) and his mother (born in [year]) and also his sister (born in [year]) reside in Bangladesh.

13.In his application the applicant indicates that his most recent Australian visa was a [temporary] visa. In his application the applicant states that his family was originally from the Ahmadiyya sect of the Muslim community and the family has faced continued discrimination and threats of violence; because of this, and the close minded viewpoint and oppressive activities of the Muslim community, he lost faith in Islam as he grew up. Over his last few years in Bangladesh he had taken positively to the beliefs and values of Christianity. He was vocal about his disbelief in the principles of Islam in his teens which lead to his being bullied, discriminated against and abused physically. He was harassed and physically and verbally abused in his teens in Bangladesh because of his views, his liberal attitude and his beliefs. He was treated as an outcast at school and others were given preferential treatment over him. When he was at school he was stopped in the street many times, harassed and assaulted and warned against speaking to authorities. There were 400 to 500 bombings in Bangladesh against minority groups including Christians by extremist parties in the few months before he left Bangladesh which caused him and his family to live in fear of persecution. To avoid persecution for his views, and in search of a better life, his parents sent him to Australia when he was [age] years old.

14.The applicant states in his application that if he returns to Bangladesh he would be persecuted for his beliefs and for the person he has become in Australia. Also because of his posts on line he would get arrested on blasphemy charges as has been the fate other bloggers. If it is discovered that he is of Ahmadiyya background and now a  Christian, and also because of his anti Islamic views, both on line and in person, this would lead to a fatwa being issued against him by the community which would have dire consequences.

15.The applicant states that he fears his Islamic community and the many radical Muslims in his city as they would be violent against him. He also fears being arrested under the blasphemy laws, being put in prison and suffering physical harm in prison from Muslims there. He claims that he cannot get protection from the harm he fears in Bangladesh as the blasphemy laws are punishable by imprisonment. The applicant states that he fears that his beliefs and lifestyle which contradict Islam, and his openly stated views, would lead authorities to prosecute and imprison him; authorities, most of whom are Muslims would take offence at his activities and “most likely ensure life was hell for me”.

16.The applicant was interviewed by the delegate on 2 April 2015; the discussion at the interview is referred to in the delegate’s decision record which was provided to the Tribunal by the applicant with the application for review. The applicant provided to the delegate documents in support of his application and also later provided post interview submissions; a submission dated 4 May 2015 from his migration agent was also forwarded to the delegate after the delegate’s interview.

17.On the departmental file there are a number of documents which have been submitted by the applicant in support of his application for protection visa. There is a copy of a document described as a Baptism Certificate from [Church 1] in Dhaka dated [January] 2014, in the name of [Name 1], noting that the date of the baptism was [February] 2005;  there is a copy of a letter dated [September] 2006 described as a letter from the applicant’s father to the Officer in Charge at a named police station in Dhaka indicating that “yesterday evening” the applicant was beaten up by members of the youth wing of the fundamentalist political party Jamate Islami with whom he had arguments about religious matters when he was at school;  there is a letter headed “ To Whom This May Concern” dated [March] 2014 described as from a doctor who claims he treated the  applicant “around the third quarter of September 2006” for injuries which, as noted in the document, the applicant told the doctor he had received when he was beaten up by his ex class mates who were members of the fundamentalist group Jamat-e Islami; there is a 24 page document described as a fatwa document dated [March] 2014 referring to the applicant’s  “[anti-Islamic views]”  as published in his website “[Website URL]”.

18.Also on the departmental file there are printouts of some social media pages of the applicant, and two pages from the applicant’s blog one of which indicates that as the blog is marked private by the owner of the blog it cannot be viewed without a log in with password, and the other is a notification from the blog dated [April] 2016 essentially stating that the applicant’s blog cannot be accessed. In the post interview submission by the applicant to the delegate, dated 4 May 2015 the applicant addresses concerns raised with him by the delegate during the interview. He states inter alia that he has tried to move past and forget things that happened in his teens and he was not entirely clear in some of his responses at interview about what happened in his teens; he also had a fear of giving the wrong answer so that he blanked out; basic questions about Christianity “which not only I, but most people who’ve spent any amount of time around Christians or in the west would know about” were questions that he froze up on almost  entirely not for lack of knowledge but because he panicked “as even a brief look at Wikipedia would have given anyone an idea”; the basis of his being a “Christian Humanist” are the many virtues of Jesus including his humbleness, his lack of want of material possessions, his faith in forgiveness and his pleas to others to help one another. In response to the delegate’s concerns that he could not give  details of how he had been harmed in Bangladesh, the applicant states that he repressed details about his attacks in Bangladesh because of the trauma involved but he did remember being pushed up against a wall, to the floor, punched, kicked and more but what he remembered at the time he told police and the police report is provided; he saw no need to get a medical certificate from the doctor who treated him at the time as he was about to leave the country and did not foresee having to return given that his studies were at the time a pathway to permanent residency in Australia and he did not intend to apply for protection in Australia; the fatwa document was issued by those authorised to do so in Bangladesh but he is not familiar with the exact circumstances of, and the details of those involved with, the fatwa as he has been away from Bangladesh for many years; his baptism was more of a formality and did not change his beliefs and he could not remember the exact scriptures at the time of the interview. The applicant concludes that in Australia he had decided to forget and forgive and let go of the past and a lot of the past seems like an entirely different lifetime; it was difficult during the interview to bring up and recall the events of a life he had worked so hard to leave behind and forget.

Claims in Application for Review

19.In his application for review the applicant makes no new claims.

Tribunal Hearing

20.The Tribunal spoke with the applicant about his background, including his family in      Bangladesh; why he left his country for the first time in June 2006; his return to Bangladesh in September 2006 for about [number of] days; his departure from his country on the second occasion that he did so; his claims about what happened to him in his country to cause him to leave there; the delay in his application for protection in Australia in January 2014 after arriving in/returning to Australia in 2006; his blog, which he has set up and operated since he  has been in Australia, to which he sent the Tribunal a link after the hearing;  and his fears about returning to Bangladesh.

FINDINGS AND REASONS

21.Essentially the applicant claims that he left his country and cannot return there because he fears harm from the community and those who are associated with fundamentalist Islamic groups. He claims that his family was originally from the Ahmadiyya sect of the Muslim community and the family has faced continued discrimination and threats of violence. He claims that when he was at school he was treated as an outcast by his friends and others in authority, discriminated against, harassed and bullied, including being assaulted, by Islamic fundamentalist groups, because of his Ahmadiyya family background and also because he questioned and spoke out against traditional Islamic religious beliefs as he became disenchanted with traditional Islamic beliefs. He also claims that he converted to Christianity in Bangladesh, that he attended a Christian church for few years before he came to Australia and was baptised as a Christian in Dhaka in 2005 and that after that time the mistreatment towards him intensified before he left Bangladesh in June 2006. The applicant claims that he has become a “Christian Humanist” in Australia and he does not attend church in Australia. He claims that when he returned to Bangladesh in September 2006 he was attacked a few days after arriving there and he claimed before the Tribunal that those people who had attacked him in Bangladesh caused trouble for him when he was leaving his country the second time; his father had to bribe people because of these issues when he was leaving however the applicant said that he did not understand what the issues were as he was only [age]. The applicant also claims that he cannot return to his country because while he has been in Australia he has created an on line blog in which he has criticised and spoken out against Islam; a fatwa was issued against him in 2014 as a consequence of the blog. The applicant claims that if he returned to his county his beliefs and lifestyle would contradict Islam; this and his openly stated views would lead authorities to prosecute and imprison him and he would suffer harm while imprisoned. He told the Tribunal that he does not fear harm in his country just because he has been in a western country but the lifestyle he has lived in Australia as well as his being outspoken is not compatible with Islam.

22.Implicit in the applicant’s claims is that he cannot get protection from the harm he fears in Bangladesh and cannot relocate to avoid harm in Bangladesh.

Non Disclosure Certificate – s. 438 of the Act

23.As a preliminary issue the Tribunal considered a certificate purporting to restrict the disclosure of certain information on the applicant’s departmental file pursuant to s. 438 of the Act. The material identified in the certificate is contained in two folios, being a disclosure decision checklist and a further administrative document relating to identification test/s. The certificate refers to the information as being restricted from disclosure on the basis that the disclosure of the information would be contrary to the public interest because the folios contain information relating to an internal working document and business affairs. The Tribunal has considered the materials identified in the certificate and considers the certificate is not valid. In assessing the validity of the certificate the Tribunal has taken into account the decision of the Federal Court in MZAFZvMIBP [2016] FCA 1081 (Beach J, September 2016). Essentially the two folios referred to in the certificate contain administrative material which is not relevant to the applicant’s claims. They are not adverse to the applicant nor do they support the application. The Tribunal has not taken the material into account when determining the application for review.

Country Information

24.In addition to the country information referred to by the delegate in the decision record, a copy of which was provided to the Tribunal by the applicant with the application for review,  the Tribunal consulted additional independent country information about Bangladesh. The Tribunal discussed in general terms with the applicant at the hearing the country information before it about document fraud, the practice of Christianity and conversion from Islam in Bangladesh.

25.The Tribunal consulted independent country information about the prevalence of document fraud in Bangladesh being DFAT Country Information Report Bangladesh, 2 February 2018, and also Immigration and Refugee Board of Canada, Responses to Information Request, BGD105263.E, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015.

26.The Tribunal also consulted DFAT Country Information Report Bangladesh, 2 February 2018, at paragraph 3.17 where it is stated that the Constitution holds that Islam is the state religion but ensures equal rights and status in the practice of other religions including Christianity; at paragraph 3.22 in relation to religious conversions where it is reported that there are no laws in Bangladesh prohibiting conversion although individuals who convert from Islam to Christianity can sometimes face some societal pressure; at paragraphs 3.48 to 3.50 where it is stated that Ahmadiyyas can and do worship in Bangladesh at their own mosques and face a low risk of societal violence; and at paragraphs 3.24 to 3.29 in relation to blasphemy/defamation of religion. The latter paragraphs report that relevant penal code provisions in Bangladesh provide for penalties, including imprisonment, for statements or acts demonstrating a “deliberate or malicious” intent to insult religious sentiments which has been interpreted by the Courts to include insulting the Prophet Mohammed; there is legislation which applies similar restrictions to online publications and which further criminalises defamation of religion. At paragraph 3.25 it is stated, “Islamic organisations have consistently used the pejorative label “atheist” against individuals who have publicly criticised Islamic fundamentalism or have questioned the role of Islam in the state, including those advocating for secular values. The government has periodically used the blasphemy laws against such individuals, often following complaints from Islamic organisations”. Examples of relatively recent arrests and periods of imprisonment imposed for bloggers deemed to have insulted Islam and the Prophet Mohammed are included. Paragraph 3.26 also states that in addition to official sanctions individuals who have publicly criticised Islamic fundamentalism or have criticised the role of Islam have faced significant societal pressure in the form of threats and violence from Islamic organisations. It is noted in paragraph 3.27 that in April 2013 Islamic groups published a “hit list” of 84 bloggers whose writings were deemed to be anti Islamic and that some bloggers on that list have been killed, including some who have been hacked to death, and others have had to go into hiding or exile due to the lack of state protection against these threats of violence. Paragraph 3.29 indicates that DFAT assesses those accused of blasphemy or defamation of religion by Islamic organisations are likely to face legal sanctions, including imprisonment, and anti Islamist high profile bloggers face a high risk of societal discrimination in the form of threats and physical violence, with limited access to state protection.

27.Clearly the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his or her race, religion, nationality, membership of a particular social group or political opinion, if he returns to his own country, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that the applicant will suffer significant harm.

Identity and Country of Reference

28.The Tribunal accepts that the applicant is who he claims to be; his Bangladeshi passport which has been extended a few times by the Bangladesh High Commission in Canberra while he has been in Australia was produced to the Tribunal at the hearing. Most recently the Bangladesh High Commission has issued the applicant a passport valid from [2015] until [2020]. The Tribunal finds that the country of reference for this application is Bangladesh.

Applicant’s departure from his country

29.The Tribunal does not accept as true the applicant’s claims that he left his country in 2006, on either of the occasions that he did so, for the reasons that he claims including because he feared harm, or was harmed there because he spoke out about/against Islam, and/or because he became Christian, and/or because of his/his family’s Ahmadiyya background. The Tribunal does not accept as true that the applicant was harmed or threatened in Bangladesh by those he claims for the reasons that he claims.

Claimed Incidents in Bangladesh

30.In the Tribunal’s view if it were true that the applicant had left his country towards the end of June 2006 for these reasons, or any one of the reasons that he claims, and/or if he had suffered the assaults and harassment there that he claims he did, he would not have returned to his country in September 2006, and remained there for about [number of] days staying with his family at the same house he was living in with his family before he left Bangladesh as he told the Tribunal he was doing. He claims that before he left his country in June 2006 he was harassed and physically and verbally abused in Bangladesh because of his views, his liberal attitude and his beliefs and that when he was at school he was stopped in the street many times, harassed and assaulted. He told the Tribunal that he was beaten up seriously when he was at school, that there were multiple incidents and on one occasion he was pushed against a wall, kicked and punched and had to get medical treatment.  Further he claims there were bombings in Bangladesh against minority groups including Christians by extremist parties in the few months before he left Bangladesh and to avoid persecution for his views and in search of a better life his parents sent him to Australia when he was [age] years old. While the Tribunal accepts that the applicant’s parents sent him to Australia so that he might have a better life the Tribunal does not accept as true that the applicant left his country because he was targeted for harm there, or faced harm there, for the reasons that he claims. In the Tribunal’s view his return to Bangladesh less than three months after he left there is not consistent with these claims. When the Tribunal asked him why he returned to Bangladesh in September 2006 the Tribunal does not consider that he gave a reasonable explanation given the seriousness of what he claims happened to him before he left there in June 2006. He said variously that he missed his family, he tried to reach out to people, it was a brief trip, he did not think anything would happen and he was not entirely aware of the degree of harm he faced at that time. He said that he made the decision not to return to Bangladesh after he left there the second time, in September 2006, and that he had an incident there just after he arrived in September 2006. He said that when he came to Australia the first time, in June 2006, he came to “get away from it” but after leaving in September in 2006 he knew he could not return to Bangladesh again. When the Tribunal reminded the applicant that he came to Australia in June 2006 as a student, to study, according to his application for visa, and that he did in fact study, he agreed and said that he came to Australia to study and to get residency and that he did study, but when he came the first time he thought that maybe he could go back to Bangladesh at a later time. After his return to Bangladesh from Australia in September 2006 he made the decision not to return to his country. There was an incident just after he arrived back home in September 2006 and he was assaulted. The applicant also said that on the second occasion that he left Bangladesh the people who had attacked him when he was there caused trouble for him when he left Bangladesh in September 2006 and his father had to bribe them. When the Tribunal asked him more about this trouble when he was leaving Bangladesh in September 2006 he said that he was [age] and not really aware of what happened but his father told him there were some issues when he was leaving that he would try to work out. His father said that the people who accosted him could do it again and that they could prevent him leaving. He had a conversation with his father about changing his departure date. When the Tribunal queried why he had not previously raised this claim about the trouble he had exiting his country in September 2006, and the payment of the bribe by his father, the applicant said that he could not remember if he did so and then he said that he was not asked about it and that lots of equally serious things happened. The applicant said that when this trouble happened he thought there was a possibility that he could be prevented from leaving Bangladesh if he returned there again. Given the seriousness of the trouble that the applicant claims he had when exiting his country in September 2006, to the extent that his father had to pay a bribe to someone so that he could leave the country, and also given the applicant’s claim that this incident caused him to think he could be prevented from leaving his country in the future which contributed to his decision never to return there again after September 2006, the Tribunal considers that if these claims were true he would have mentioned them previously in connection with his application; on the materials before this Tribunal the Tribunal finds that he did not do so. The Tribunal does not accept as true that the applicant had trouble leaving his country in September 2006 and /or that his father had to pay a bribe as he claims. The Tribunal finds that this is an embellishment of his evidence to give him a better chance to obtain a visa to stay in Australia.

31.Given the concerns that the applicant has about the applicant’s credibility as referred to above, the Tribunal does not accept as true that the applicant was attacked in September 2006 when he returned to Bangladesh as he claims. He told the Tribunal that a very serious incident happened to him about the second or third day that he arrived back in his country in September 2006 and he stayed home for the rest of the duration of his stay. When the Tribunal asked him more about the incident and what happened he said that he tried to reach out to friends but they gave him the cold shoulder and did not want to talk to him; things had “heated up” after he left but he did not know why that would be the case. He was told to meet a few people and then he was assaulted as he was walking back home. The Tribunal has considered the two documents provided to the Tribunal in support of this claim by the applicant, namely the copy of a letter dated [September] 2006 described as a letter from the applicant’s father to the Officer in Charge at a named police station in Dhaka indicating that “yesterday evening” the applicant was beaten up by members of the youth wing of the fundamentalist political party Jamate Islami with whom he had arguments about religious matters when he was at school and also the letter headed “To Whom This May Concern” dated [March] 2014 described as from a doctor in Dhaka who claims he treated the  applicant “around the third quarter of September 2006” for injuries which, as noted in the document, the applicant told the doctor he had received when he was beaten up by his ex class mates who were members of the fundamentalist group Jamat-e Islami. Given the credibility concerns that the Tribunal has about this applicant and given the country information consulted by the Tribunal about the prevalence of document fraud in Bangladesh, which information the Tribunal discussed generally with the applicant at the hearing, the Tribunal finds that the two documents  are not reliable evidence of the facts in them.

Christianity

32.Further the Tribunal does not accept that the applicant became a Christian/converted to Christianity in Bangladesh, or practised as a Christian in Bangladesh. It follows that it does not accept as true that he left his country because he was harmed or feared harm there for that reason, or that he cannot return to his country for that reason. In the Tribunal’s view if it were true that the applicant converted to Christianity in Bangladesh, or practised as a Christian in Bangladesh he would have been able to tell the delegate more about his conversion and about Christian principles than he was able to do at the delegate’s interview, the details of which are referred to in the delegate’s decision record, a copy of which the applicant gave to the Tribunal for the purposes of the review.

33.In the decision record of the delegate, a copy of which was provided to the Tribunal by the applicant for the purposes of the review, it is recorded that the applicant could tell the delegate very little about his baptism, why he converted to Christianity and his knowledge of Christianity. In his written post interview submission to the delegate the applicant agrees he could tell the delegate little about Christianity. Given that the applicant told the Tribunal that he attended a Baptist church and went to services many/multiple times when he was in Bangladesh and that he was baptised in 2005 the Tribunal does not accept as reasonable or plausible the explanation that he gave the delegate in his post hearing written submission for why he could tell the delegate very little about his baptism, why he converted to Christianity and his knowledge of Christianity. He said that he has tried to move past and forget things, that he had a fear of giving the wrong answer so that he blanked out and that he could not answer basic questions about Christianity “which not only I, but most people who’ve spent any amount of time around Christians or in the west would know about” because he froze up and panicked noting that “even a brief look at Wikipedia would have given anyone an idea”. The applicant told the Tribunal that in Bangladesh he was disenchanted with Islam/the Ahmadiyya faith and he found what Christians believed to be better and they were more accepting. He said that he attended a Baptist church and went to services many/multiple times when he was in Bangladesh. When the Tribunal asked the applicant why then he could tell the delegate little about basic Christian principles he said that it was a long time ago, that his relationship with the church and the people in the church was more personal and that he has now moved to being more of a humanist who identifies with Christian beliefs and morals and the culture of Christianity. He does not attend church in Australia. He said that he was baptised at a point when he identified more as a Christian. He then mentioned the stories about Jesus being crucified, the parting of the waters and Adam and Eve but said that he views them as metaphors.

34.The Tribunal has considered the document described as a copy of a Baptism Certificate from [Church 1] in Dhaka in the name of [Name 1] noting that the date of the baptism was [February] 2005.  Given the credibility concerns that the Tribunal has about the applicant and given the country information consulted by the Tribunal about the prevalence of document fraud in Bangladesh,  the Tribunal finds that this document is not reliable evidence of the facts in it.

35.Not without some doubt about the matter the Tribunal accepts that the applicant may now identify with the culture and morals/values of Christianity; when the Tribunal asked him what he does to practise his religion he said that he identifies with the core values of Christianity of “not doing the wrong thing” and he celebrates the Christian culture at Easter and Christmas with friends. The Tribunal does not accept however that the applicant left his country and cannot return there because was/ he will be harmed there or fears harm there, as he claims because he converted to Christianity/became a Christian in Bangladesh, and/or that he was, or is, or will be, identified as Christian in his country if he returns there. To the extent that the applicant claims that he will follow what he refers to as “Christian humanist” principles on return to Bangladesh, given the country information available to the Tribunal which indicates the Constitution holds that Islam is the state religion but ensures equal rights and status in the practice of other religions, the Tribunal finds that that there is not a real chance or real risk that he will suffer harm in his country for his “Christian humanist” principles on return to Bangladesh.

Ahmadiyya faith

36.The applicant told the Tribunal that he is not an Ahmadiyya, that he does not practise as such in Australia but when he was young he practised as an Ahmadiyya, as part of his family. He said that his family went to mosque when he was young but he is not aware of them going to mosque now. He claimed in his application for the visa that his family was originally from the Ahmadiyya sect of the Muslim community and the family has faced continued discrimination and threats of violence. In the delegate’s decision record however it is stated that the applicant claimed before the delegate that he grew up in a non religious household and that he indicated that his family were not religious and do not practise the Ahmadiyya religion. The applicant told the Tribunal that when he was at school he spoke out against Islam although he was Ahmadiyya, and that led to the threats, bullying, harassment and violence against him when he was at school. When the Tribunal raised with the applicant the independent country information about the practice of the Ahmadiyya faith that is referred to in the delegate’s decision record, and also in DFAT Country Information Report Bangladesh, 2 February 2018, that there is freedom to practise the Ahmadiyya faith under the Constitution and law in Bangladesh, although there are some instances of societal violence sometimes, the applicant said that it depends on the community and he was different as he spoke out about the beliefs. He told the Tribunal that he was beaten up when he was at school and was treated as an outcast by the school, his friends and other authorities because he spoke out. The Tribunal does not accept as true that the applicant spoke out against Islam when he was in Bangladesh and was threatened/harassed/assaulted in Bangladesh for this reason as he claims. Given the country information referred to by the delegate and the Tribunal, the Tribunal accepts that the applicant’s family may have experienced some discrimination because of their Ahrmadiyya faith but the Tribunal does not accept as true that the family has faced continued discrimination to the extent that the applicant claims, and threats of violence because of their Ahmadiyya background. In the Tribunal’s view the applicant’s evidence to the Tribunal about his/his family’s situation in Dhaka, and also about his own academic success while he was at school, are not consistent with the applicant and/or his family being threatened, outcast, harassed or discriminated against to the extent that the applicant claims because of their Ahmadiyya background in Bangladesh. The applicant told the Tribunal that he was living in the family home with his parents and studying before he came to Australia in 2006. He said that he finished high school, that he performed well at school, focussed on his studies and achieved A’s in everything. When the Tribunal queried how he managed to achieve the results he did if he were being treated as he claims he was at school, including being treated as an outcast, he said that his exams and tests were separate noting that he attended a private school which his parents paid for as they were “comfortable” financially, although they are now not so “comfortable”. The applicant also told the Tribunal that his father was an [Occupation 1] in Bangladesh, that they used to own property although some of it has been sold now for finances, that his father works as a [Occupation 2] now and that his sister who is [age] lives with his parents and she is studying in Bangladesh. The applicant also said that his trips to and from Bangladesh have been financed by his family. He said that his family still live in Dhaka but have moved addresses as they rent. He said however that when he returned to Bangladesh in September 2006 he returned to the same house the family was living in before he left Bangladesh. The applicant then said that the family moved around to different addresses because of what happened to him. He then said however that he was “100% speculating” when he said that the family might move around to different addresses because of him and because of the family background and these moves might also be because of lack of finances. To the extent that the applicant makes the claim the Tribunal does not accept as true that the family were moving around in Bangladesh to avoid harm including because of the applicant.

37.The Tribunal finds that there is not a real chance or real risk that the applicant will suffer serious or significant harm in his country because of his/his family’s Ahmadiyya background.

Delay in making application for protection

38.In the Tribunal’s view if it were true that the applicant left his country and feared to return there for the reasons that he claims he would have applied for protection in Australia sooner than he did so; he applied for protection in Australia nearly eight years after his arrival in Australia and at a time when he had no other options to remain in Australia. When the Tribunal raised with the applicant its concern about the long delay in the lodging of the application for protection visa the applicant said that he was trying to get a sponsor when his prior employer “went under”, that he applied for protection only when he could not get a sponsor as he had “no other options” to remain in Australia, that he wanted a guaranteed and certain pathway to stay in Australia and an application for a protection visa had an uncertain outcome. Also he said that if the protection visa was refused other pathways to stay in Australia would close for him. He said that he knew he might have to return to Bangladesh a few months before he applied for the protection visa but he continued to try to find a sponsor and did not apply for protection until he found he could not get a sponsor.  When the Tribunal queried why he had not earlier told Australian immigration authorities that he could not return to his country for the reasons he is now claiming, given that he has been in contact with those authorities over the years he has been in Australia, the applicant said that he wanted to forget and isolate what had happened to him and he wanted certainty; he pursued trying to get a sponsor so that he could stay in Australia rather than pursue his protection claims. Given the seriousness of what the applicant claims happened to him in his country before he left there and his claimed fear of returning there the Tribunal does not accept that the applicant gave it a reasonable or plausible explanation for why he delayed for many years, after arriving in Australia, before making an application for protection visa in Australia.

Conduct in Australia –applicant’s blog

39.The Tribunal accepts that the applicant has set up a blog since he has been in Australia. He said the blog was just an outlet as he was frustrated about things that should not be happening in the world. The applicant told the Tribunal that his blog was open/available to be viewed publicly until his interview with the delegate but he closed it after the interview because he thought he might get a negative outcome from the delegate and he was scared of the blog being public. He said that is why the delegate could not open the blog after the interview as he/she refers to in the decision. The applicant then said that he opened the blog again after he received a negative outcome from the delegate because the blog is his outlet and he had hope because of the application for review to the Tribunal. The applicant sent the Tribunal a link to his wordpress blog after the hearing and as at the date of this decision the Tribunal has been able to access the applicant’s blog on a number of occasions since the hearing. The reference to the link provided by the applicant is placed on the Tribunal file.

40.The Tribunal accepts that the applicant’s blog has been publicly available on line but that it has been closed/restricted from general viewing from time to time. The Tribunal also accepts that the applicant’s blog contains material that is critical of, and at times ridicules, Islamic beliefs. The Tribunal finds however that the dates of the postings on the applicant’s blog, including the date of April 2011 when he claims he commenced blogging, are not reliable evidence that the blog posting was made at that time in the month indicated. The link sent to the Tribunal contains the applicant’s postings and the months of those postings and also general information about wordpress blogs. Given this information the Tribunal finds that the dates of the postings on the blog are dates inserted by the applicant; any date can be inserted as the date or month of the posting and dates can be changed or backdated. Further, the delegate’s decision record indicates that the delegate viewed the applicant’s blog prior to the interview on 2 April 2015 and that he/she questioned the applicant about the blog at interview on 2 April 2015; the delegate records in the decision that at that time of interview the last blog posting was in April 2014, that is that there were no postings from April 2014 until the date of the interview on 2 April 2015. The link that the applicant provided to the Tribunal however showed postings between April 2014 and April 2015, namely in September 2014, December 2014 and February 2015 and then in April 2015 and thereafter. The Tribunal finds that these postings were inserted later to provide an appearance of continuity in the postings. Further, in the Tribunals’ view, the blog posting dates also do not accord with the applicant’s own evidence to the Tribunal about his blogging. He told the Tribunal that he started the blog in 2011 and it was “on and off” until 2014 and that as he was afraid of a negative outcome with the delegate he stopped the blog, started it again in 2015 and then stopped it in 2018. When the Tribunal viewed the blog it showed eight postings in 2018, between January and December 2018, and postings in March 2019 and April 2019. Also the postings in the blog were not “on and off” between April 2011 when the blog started and 2014, rather there were postings every month from April 2011 until April 2014.

41.Having regard to the above, and also to the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that the applicant commenced his blog in Australia when he claims that he did so, in April 2011 so that he had an outlet for his views as he told the Tribunal. The Tribunal also does not accept as true that a fatwa was issued against the applicant because of his blog, or for any reason. Given the concerns that the Tribunal has about the applicant’s credibility and also the country information before the Tribunal which refers to the prevalence of document fraud in Bangladesh, the Tribunal finds that the fatwa document dated March 2014 which was given to the delegate by the applicant at the applicant’s interview with the delegate in April 2015, and which in any event incorrectly identifies the applicant’s website address, is not reliable evidence of the facts in it.

42.The Tribunal finds that the applicant commenced his blog in Australia around the time he applied for protection in Australia, at a time when he had no other option to remain legally in Australia, to give him a better chance of remaining permanently in Australia. Subsection 91R(3) of the Act, which was discussed with the applicant at the hearing, provides that in determining whether a person has a well founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. Where conduct in Australia is an issue, the applicant has the practical burden of satisfying the Minister (or Tribunal) that it was otherwise than for the purpose of strengthening his or her claims to be a refugee. The Tribunal is not satisfied that the applicant commenced, and posted on, his blog in Australia, which displayed material critical of Islam, otherwise than to strengthen his claim to be a refugee and the Tribunal disregards that conduct under subsection 91R(3) of the Act.

CONCLUSION – REFUGEE CRITERION

43.For the purposes of the ‘refugee criterion’ the Tribunal finds that the applicant does not have a genuine fear founded upon a real chance of persecution for one or more of the Convention reasons being his race, his religion, his nationality, his membership of a particular social group or his political opinion, either now, or in the reasonably foreseeable future, if he returns to his country, Bangladesh.

44.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

CONCLUSION – COMPLEMENTARY PROTECTION CRITERION

45.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa).

46.The Tribunal has found above that the applicant started and operated a blog in Australia from around the time of his application for protection visa, that is from January 2014, and that the applicant’s blog contains material that is critical of, and at times ridicules, Islamic beliefs. The Tribunal accepts that the applicant’s blog has been publicly available on line from around January 2014, although it is clear that the applicant has closed/restricted the blog from general viewing from time to time. The Tribunal must consider this conduct for the purposes of deciding whether the applicant satisfies the complementary protection criterion; it is clear that subsection 91R(3) of the Act does not apply to a consideration of the complementary protection criterion so that the conduct can be disregarded. This is the case even though the Tribunal is satisfied that the applicant’s purpose in commencing and operating his blog was to strengthen his claim to be a refugee. 

47.Given the country information available to the Tribunal, which is referred to above in this decision, in relation to the existence, interpretation and application of the blasphemy laws, including to on line bloggers, in Bangladesh, and the information about the threats of violence and attacks on bloggers by Islamic fundamentalist groups, the Tribunal finds that for the purposes of s. 36(2)(aa) of the Act there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that the applicant will suffer significant harm because of his on line blogging in Australia.

48.The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

DECISION

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

Ms Christine Long

Member