1607197 (Refugee)

[2019] AATA 6777

1607197 (Refugee) [2019] AATA 6777 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607197

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Ms Christine Long

DATE:4 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 September 2019 at 6:44pm

CATCHWORDS         

REFUGEE – protection visa – Bangladesh – religion – Christianity – member of Christian performing group – political opinion – participation in Shahbag protests – supporting the punishment of war criminals – opposing Islamic fundamentalism – victim of assault – accusations, intimidation, threats and attacks by Islamic extremists – travel to another country without applying for protection – delay in leaving after visas granted – attack on sibling – religious and political activity in Australia – child’s medical condition and treatment – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 424A

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who are citizens of Bangladesh arrived in Australia [in] July 2015 and applied for the visas on 6 October 2015. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.

3. The applicants attended three hearings before the Tribunal; the first hearing was held on 12 February 2019 and the resumed hearings were held on 12 March 2019 and 19 June 2019; they were represented by their registered migration agent.

   CRITERIA FOR A PROTECTION VISA

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail himself/herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the applicants’ departmental file which includes their applications for protection visas, a copy of the passport of the first named applicant issued in [2013] expiring in [2018], a copy of the passport of the third named applicant issued in [2015] expiring in [2020], and a copy of the passport of the second named applicant issued in [2013] expiring in [2018]. The departmental file also includes various documents, statements, photographs, and submissions given to the department in support of the applicants’ claims.

    Claims of first named applicant (the applicant) in application for protection visas

11. In her application for protection visa the applicant states that she was born in [City 1] in Bangladesh in [year]. She gives her religion as Roman Catholic and gives her occupation as music teacher. She gives her ethnic group as Bengali. She indicates that she was married in [2010]. She indicates that her mother, her father and her brother reside in Bangladesh and her sister resides in [Country 1]. She states that she speaks with her relatives outside Australia twice a week by telephone. The applicant gives four [addresses] where she has lived from [birth year] until July 2015. She provides her education history between 1989 and October 2002 and her employment history as a music teacher in Bangladesh from 2002 until she left there in July 2015; her last employment is noted as “teaching music” from September 2009 until “current” at an institution which she [names] at an address which she provides.

12. The applicant indicates that she has travelled to [Country 2] between [July] 2014 and [August] 2014 as a visitor. She also indicates that she has been refused a visa to travel to [Country 1].

13. The applicant indicates that she left her country legally in July 2015 and arrived in Australia on [date] July 2015. She entered Australia as a visitor using her passport issued in Bangladesh in [2013]. She indicates that her [uncle] (dob [year]) is an Australian national.

14. The applicant states that she left her country because she feared harm from Islamic extremists, Jamaat-e-Islami. She fears that she will face serious harm, possible be killed because of her profile as a person involved in Shahbag activities against the BNP and Jamaat-e-Islami, due to her Catholic Christianity and her beliefs and activities, due to her activities as a singer praising and promoting Christianity, due to her activities as a music teacher teaching Christian songs to Muslim students, due to her opinion against Islamic extremism and extremist parties, including Jamaat-e-Islami. She claims that she cannot get protection from the harm she fears in her country and cannot relocate to avoid harm there, including because Islamic extremists have a presence and influence throughout Bangladesh.

15. The applicant states that [in] April 2013 she participated in a performance with friends which a group, [Group 1], organised and when she returned to her home people came and beat them and accused them of being infidels who were engaging in anti Islamic activities. As a result of the attack she was taken to [Hospital 1] and she had a miscarriage. On 26 June 2015 when she and her husband were returning home they were attacked by three Islamic extremists who accused her of engaging in anti Islamic activities. As a result of the attack her husband sustained injury to his face but they escaped from the attack without major injury. They lodged a general diary complaint and left Bangladesh as soon as possible.

16. The applicant submitted a statement dated [October] 2015 in support of her claims which states that Islamic extremists tried to abduct her in October 2002 and due to their harassment she stopped going to college. She states that she joined [Group 1], a group of artists, in 2001 and the group plays an important role in the movement against religious extremism and to protect democracy. She performed songs on those themes publicly including on TV and produced CD’s. She attended processions with her husband under the [Group 1] banner and sang songs in support of that movement; due to her involvement with the Shahbag movement she became a notable person for Islamic extremists and due to her minority background she became a target of extremists. She recounts details of an attack on her after a [Group 1] performance [in] April 2013. She states that when she returned home after participating in the programme with her friends “suddenly people came and beat us and accusing us as infidels engaging in anti Islamic activities. They left us when other people in the vicinity came to our rescue”. The applicant states that as a result of the attack she was taken to hospital ([Hospital 1]) for treatment and due to the attack she had a miscarriage and suffered “mental depression”.  She continued to be involved with [Group 1] and was teaching music, singing songs praising Jesus encouraging people to follow Jesus in the Church. Because of her Christian activities promoting Jesus she faced harassment and intimidation from Islamic extremists. Muslim students participated in her music classes where she taught Christian songs and Muslim extremists got to know about that and targeted her.  She and her husband were attacked on 26 June 2015 by three extremists and her husband sustained an injury to his face. They lodged a general diary with the police about the incident and came to Australia [in] July 2015. [In] August 2015, after they came to Australia, some people went to their home in the village to look for them and when they could not find them they attacked her brother; the family lodged a general diary about the incident. Both the incidents, in June 2015 and in August 2015 were reported in [media].

17. At the end of the statement the applicant repeats her claims as stated in her forms namely that she will face serious harm in her country due to her profile as a person involved in Shahbag activities against Jamaat-e-Islami and the BNP, due to her Catholic Christianity beliefs and activities, due to her activities as a music teacher teaching Christian songs to Muslim students and due to “my opinion against Islamic extremism and extremist parties including Jamaat-e-Islami”.  She repeats that she cannot get protection and cannot relocate to escape the harm she fears anywhere in Bangladesh. She states that she fears she will face serious harm if she returns to Bangladesh because she was involved in Shahbag activities against both the BNP and Jamaat-e-Islami, because of her Catholic Christianity belief and activities, because she is a singer praising and promoting Christianity, because she is a music teacher teaching Christian songs to Muslim students and because of her opinion against Islamic extremism and extremist parties including Jamaat-e-Islami.

    Claims of second named applicant (applicant 2) in the application for the visa

18. In his application for protection visa applicant 2 states that he was born in [City 1] in [year]; his ethnic group is Bengali and his religion is given as Christianity (Roman Catholic). He states that his occupation is [occupation]. He indicates that he married in [2010].

19. Applicant 2 states that his father is deceased, his mother lives in Bangladesh and his two [siblings] live in [Country 3] and [Country 4]. His uncle lives in Australia.

20. Applicant 2 states that in Bangladesh he has worked as a salesman in a [shop] and from 2005 he has [worked] for a Christian [organisation].

21. Applicant 2 states that he left his country [in] July 2015 and entered Australia [the next day] as a visitor using a passport issued in his country by immigration authorities [in] 2013; that passport is now expired. He indicates that he has been refused a visa to visit [Country 1] stating “not enough finance” as the circumstances of that refusal. He also states that he visited [Country 2] from [July] 2014 until [August] 2014 and has holidayed in [Country 5].

22. The details in applicant 2’s forms at question 92 about the applicant’s harm in his country appears to be written  from his wife’s perspective, referring to “my husband and I “ and referring to an attack on both applicants on 26 June 2015 when “my husband and I were returning to home , we were both attacked by 3 Islamic extremists”. It is claimed that applicant 2 (“my husband”) sustained injuries to his face but they did not suffer major injury. It is claimed that a general diary was lodged with the police on 29 June 2015 and the incident was reported in [media] and then the applicants left their country and came to Australia [in] July 2015. It is claimed that [in] August 2015 after the applicants had left Bangladesh people went to their home in their village to look for them; they attacked “my brother” and a general diary was lodged by the family with the police and the incident was also [reported].

23. Applicant 2 claims in his application, and also in the statement dated [October] 2015 which he made in support of his application, that if he returns to Bangladesh he will be particularly targeted and killed by Islamic extremists because he belongs to a Catholic minority Christian group, his wife is a known singer involved in the Shahbag movement and also his wife has a profile as a music teacher and singer who promotes Christianity through her songs. He claims that he cannot get protection from the harm he fears in Bangladesh because Islamic extremists have influence within the authorities. They cannot relocate to avoid harm because Islamic extremists have influence and a presence throughout Bangladesh.

    Third named applicant

24. The third named applicant (applicant 3) was [born] in [year] and is the daughter of the applicant and applicant 2; her birth certificate was produced to the Tribunal by the applicant.

    Submission dated 2 March 2016

25. In this submission the applicants’ representative submits that the applicants fear that they will be seriously harmed in Bangladesh if they return there because of the cumulative reasons of their Christian religion; because they are “Christians actively promoting Christianity; because they hold political opinions against the parties promoting Islam as the State religion including the BNP and Jamaat-e-Islami; because they supported the Shahbag movement in Bangladesh and hold a political opinion supporting the punishment of war criminals as promoted by the movement; the applicant is a singer expressing a strong opinion against Islamic fundamentalism. Further it is submitted that the applicants cannot relocate to avoid harm in Bangladesh or obtain protection there given the ongoing human rights problems and the underlying systematic legal, religious and social hostility to Christians and the sectarian violence there. It is submitted that the applicants should be assessed under the complementary protection provisions of the Act as they would be facing harm and torture in Bangladesh if they were to return there. Extensive references to independent country information and reports in relation to the growth of Islamic fundamentalism and terrorism in Bangladesh is included as are references to statements and reports of attacks on members and supporters of the Shahbag movement; it is submitted that Muslim extremists consider the Shahbag movement anti Islamic and supporters of the movement are considered anti Islamic. There are also references to reports and articles in relation to attacks on religious minorities, in particular Christians, in Bangladesh.

    Documents produced to the Department in support of the applications

26. [In] March 2016 the following documents were produced to the Department in support of the applicants’ application for protection visa - an affidavit of marriage in relation to the applicants indicating they married in [2010]; document dated [in] August 2015 described as an application for general diary to the police by the applicant’s mother in relation to an incident [in] August 2015 at her house stating that about three months ago 3 unknown scoundrels beat her daughter and son in law and stating that “scoundrels “ came to her house searching for her daughter and son in law; another document dated [in] August 2015 described as an application for general diary to the police from applicant 2’s mother in the same terms as the last mention document stating that about three months ago 3 unknown scoundrels beat her son and daughter in law and that [in] August 2015 they came to the mother’s house searching for her son and daughter in law;  a document headed “certificate” from a person described as the chairman of [Union Parisad 1] stating that four men went to  applicant 2’s house looking for him and his wife and threatening them, on [a date in] August 2015 and that applicant 2’s mother filed a general diary at the police station about the matter; an undated statement stamped as authenticated [in] July 2015 from [Mr A] in relation to the incident involving the applicants on 26 June 2015; another undated statement stamped as authenticated [in] July 2015  by a person called [Mr B] in relation to the incident involving the applicants on 26 June 2015; a document dated 29 June 2005 but also dated 29/6/2015 described as a general diary entry by applicant 2 in relation to the incident on 26 June 2015; statements from [Ms C], [Ms D] and [Mr E] all undated and stamped as authenticated [in] July 2015 about the incident involving the applicant claimed to have happened [in] April 2013; a document from [Church Organisation 1] dated [in] July 2015 stating that the applicant is  a member of [Church Organisation 1]and that she has taken part in events of the Association as an artist and a singer; an undated document, stamped as authenticated [in] July 2015, described as from [Mr F], the  general secretary of the [Group 1] Committee stating that the applicant is a member of [Group 1] and giving the background of [Group 1],  and also stating that as the applicant has performed against violence and fighting for freedom of opinion she is in danger from fundamentalists and her life is unsafe; a document dated [in] July 2017 from  the executive officer of [Cultural Organisation 1] stating that the applicant was a student of the institute for music and performing arts; a letter from [Church Organisation 2] dated [in] July 2015 stating that the applicant is an active member of the organisation and is a music teacher who voluntarily served poor children twice a week; two letters from Bishop [G] dated [in] July 2015 stating that the applicant is a member of [Church 1], is from a good catholic family and she leads the singers at the church in prayer and that she is involved in the activities of the church and that applicant 2 is an active member of the church, of “deep catholic faith” and that he is from  a good respectable catholic family; a letter dated 19 August 2015 from a person described as the parish priest of [Church 2], [City 1], stating that the applicant lead the choir at a named church in [City 1] and attended mass there regularly;  a similar letter from a person called Father [H] described as the director at [Church Organisation 3], [City 1], dated [in] July 2015; a letter dated 19 August 2015 from the parish priest, [Church 2], [City 1], in relation to applicant 2, stating that he used to attend mass at [Church 2] regularly;  a letter dated [in] July 2015 from a person described as Father [I] stating that the applicant comes from a good catholic Christian family and that she belongs to the catholic community of [Church 1]; two photographs of a person, applicant 2, with what appears to be bruises on his back and marks to his face; a number of photographs, one described as “brother of [Applicant 1]” who is pictured with a bandage on his arm, and others described as from the [Group 1] programs; a copy of a page of a newspaper referring to artists of the [Group 1] programme performing at [named] University, dated [in] 2010.

    Interviews with delegate

1. The applicants were interviewed about their claims by the delegate on 7 March 2016.

   Application for Review

2. In the application for review the applicants make no new claims.

   Further materials and submissions produced to the Tribunal in support of the application for Review

3. On 5 February 2019 the applicants’ representative sent the Tribunal further information in support of the applicants’ application for review being a submission referring to country information in relation to the persecution of religious minorities in Bangladesh, including Christians, material relating to Islamic fundamentalism, and rising fundamentalism, in Bangladesh. It is submitted that minorities, including Christians, face persecution in Bangladesh and religious minorities have been targeted in Bangladesh with the active or passive support of government authorities. It is submitted that the applicants fear being targeted and harmed in their country for the reasons outlined in their statements and in submissions; their religion and membership of a particular social group are included as the reasons for their feared persecution.

4. On 5 February 2019 the applicants’ representative sent the Tribunal further information in support of the applicants’ application for review being -  a statutory declaration declared at [Sydney Suburb 1]  [in] February (the year is not included) from a person called [Mr J]  declaring that he has known the applicant and applicant 2 from childhood and he has seen them at mass and at religious events and has seen the applicant singing at Christmas and Easter time celebrations; a statutory declaration declared at [Suburb 2] [in] February 2019 from a person called [Mr K] who also states that he has known the applicant and applicant 2 from childhood, that he has seen them actively involved with [Church Organisation 1] and its activities, that the applicant is his son’s music teacher in the Bangla school, that the applicant has formed a Christian group where the message of God is preached through music to the community, that the applicant and applicant 2 attend weekly mass in the same parish; an undated document described as from Father [L] from [Church Organisation 4] in [City 1] stating that that he has known  the applicant and applicant 2 from childhood and has visited them in Australia and has observed them in Australia participating in Christian social and cultural events and actively participating in church activities; a certificate document, with a date noted as [January] 2019 on the translated copy, described as from [Mr M], ex General Secretary of Bangladesh [Group 1], stating that the applicant was involved with the cultural activities of [Group 1] for a long time, and giving the background and history of [Group 1] in Bangladesh from its inception in [year], and its involvement in the Shahbag movement in 2013 and noting that artists from [Group 1] were assaulted due to their involvement with the activities and that the applicant and her friends were assaulted [in] April 2013 after which he went to meet her and advised her to get help from law enforcing agencies; two documents both dated 31 January 2019 described as from [Name 1] and Associate stating that the general diary entries of the applicant’s mother and applicant 2’s mother dated [in] August 2015 were verified; print outs of on line news items  and various other publications in relation to Bengali cultural events and groups, including [Group 2], and their performances in [Australia] in 2017 and in 2018; a document dated 24 July 2018 on letterhead of [Group 2] stating that the applicant has been a member and performer with the cultural group which is based in Sydney since she joined in May 2016; medical records in relation to applicant 3 from [a] Hospital at [Suburb 3]; a psychologist’s report dated 4 February 2019 for the applicant and applicant 2; a letter dated 11 July 2018 from the president of [a social organisation] in [Suburb 2] stating that the applicant volunteers at the Bangla School and teaches music and singing there; a document dated 5 July 2018 on letterhead of [Church Organisation 1], Australia, stating that the applicant organises cultural events,  prayer and mass for the [organisation].

5. On  6 February 2019 the applicants’ representative sent the Tribunal further information in support of the applicants’ application for review being- a copy of a letter dated 30 January 2019, described as from Father [N] from [Church 3] in [City 1],  stating that the applicant was from the Catholic Parish of [Church 2], was involved in social and religious activities there and was a devout Catholic well known to the Catholic community in Bangladesh much involved in cultural activities including the parish singing group in [City 1] and a member of [Group 1];  a letter dated 5 February 2019 from the Parish Priest at [Church 4] in [Suburb 4], NSW, stating that the applicants have attended the parish church for the last twelve months and have been attending mass on a regular basis; a copy of photographs in relation to the recording of [Group 1] in 2013.

6. On 6 February 2019 the applicants’ representative sent the Tribunal further information in support of the applicants’ application for review being print outs of photographs of the applicant performing in Australia in [Group 2], a singing cultural group, in April 2017 and in March, April, June 2018 and in another cultural group, [Group 3] in [Suburb 5] in 2016, and in other performances in Australia in 2017 and in 2018. There are other copies of photographs described as photographs of the applicant performing in a performance organised by [Church Organisation 1] in [Bangladesh] in December 2014.

7. On 3 April 2019 the applicant’s adviser sent the Tribunal a submission dated 2 April 2019 in support of the applicants’ request that the Tribunal contact their seventeen witnesses in Bangladesh and a statement of the applicant dated 2 April 2019. In the statement the applicant requests the Tribunal to contact her witnesses in Bangladesh as they can provide “corroborative and convincing evidence” in relation to her profile and activities as a Christian. The applicant repeated her claims that she will be persecuted in her country because - she is a Christian who engages in promoting Christianity and she will be perceived as a person who encourages others to follow Christianity; she was a well known singer in the Shahbag movement; she has engaged in activities as a music teacher teaching Christian songs to Muslim students; and she has an opinion against Islamic extremism and extremist parties including Jamaat-e-Islami. The applicant states that she has continued to engage in her religious activities in Australia promoting Christianity and will continue those activities on return to her country. She will be considered an infidel by Islamic extremists who have the support of the authorities; her activities will be considered as activities against Islam and she may be considered as a person who engages in blasphemy due to her commitment to promoting Christianity. The applicant states that she cannot relocate in her country to avoid harm because of “our mental health issues”, they are a small family and her child suffers from health issues. She concludes that she would be targeted and face harm in Bangladesh.

8. On 19 June 2019 the applicants produced to the Tribunal a copy of the birth certificate of applicant 3 who was born in [City 1] on [date]. Also produced was a copy of a document stamped as dated, and authenticated [in] July 2015, described as a statement from a person called [Mr O]; the statement describes an attack on the applicants on 26 June 2015 pulled from a rickshaw by “3 bearded young people who were dressed in Islamic activists”. Also produced is a copy of a document dated 11 July 2018 noted as from the President of [Cultural Organisation 2] in Australia stating that the applicant commenced volunteer work teaching music and singing to children and adults at the Bangla school operated by the society [in] December 2017 and that she performs that work diligently.

   Tribunal Hearings on12 February 2019, 12 March 2019 and 19 June 2019

9. At the opening of the first hearing the Tribunal raised with the applicants’ advisor/the applicants that, although the delegate’s decision makes reference to an anonymous allegation received by the Department about the applicants, there was nothing before the Tribunal in writing about that allegation and that the Tribunal gave no weight to that comment.

10. At the Tribunal hearings the Tribunal spoke with the applicant about her background and her claims including the medical condition and treatment of her daughter; the obtaining of her passport without difficulty in 2013 so that she could visit her husband’s uncle in [Country 2]; her stay in [Country 2] for around [number] days in July/August 2014 although her visa as shown in her passport allowed her to stay longer there (for 180 days); her application to go to [Country 1] to visit her [sibling] which was refused; her failure to claim protection in [Country 2] when she was there; the incident which she claims occurred  in Bangladesh in 2001 when she was enrolled in college; the attack upon her and others with her which she claims occurred in 2013 because she is in a Christian minority in Bangladesh and because of her involvement singing with the [Group 1] group supporting a protest demanding justice in relation to war criminals in April 2013 (the Shahbag movement); her failure to report to police/authorities the incident that occurred in 2013 because she was part of a minority community and she was afraid of repercussions; her application to visit Australia in 2015 on the invitation of her uncle who is a permanent resident of Australia; the facts and circumstances in relation to the incident which she claims occurred on 26 June 2015 two days before her visa to visit Australia was granted, on 28 June 2015; her application for a visa to visit Australia which was made before the claimed incident on 26 June 2015; the delay in leaving Bangladesh for about one month prior to coming to Australia even though she and the other applicants had passports and visas to leave and travel to Australia after the grant of the visas on 28 June 2015; her place of residence and employment in Bangladesh before and until she travelled to Australia in 2015; why she made the decision to remain in Australia and claim protection in  October 2015 after arriving in July 2015; her intention to return to Bangladesh at the time she left there at the end of July 2015; the delay in applying for protection in Australia; the importance of the safety of her child in her decision not to return to Bangladesh and that she does not want her daughter to feel afraid for her life in Bangladesh; her family in Bangladesh, [Country 1] and in Australia; the problem for her/her family in Bangladesh being that they are not safe because they are part of a religious minority; her family’s  Roman Catholic religion and her background being raised as a Roman Catholic; an attack on her parents’ place and on applicant 2’s parents’ place by those looking for them in Bangladesh in August 2015 after she and the other applicants had left Bangladesh; verbal taunts suffered by those in the Christian community in Bangladesh which escalated and became more vicious for the last few years before she left Bangladesh; that she was at the forefront of the church singing community in Bangladesh and attached to [Group 1], a prominent group which is a social group rather than a Christian group which is involved with protests about  the position of people through vocal/singing programmes and which seeks justice for the oppressed, including seeking justice and punishment for war criminals; her involvement with [Group 1] from her late childhood, from [year]; that she has been involved with that group as a performer and singer, about 30 performance events per year, right up until she came to [Australia]; her break from performances for a time  after the incidents that occurred; the witnesses and their relationship/connection to the applicants and witness/other statements submitted in support of the applicants’ applications; the photographs submitted of her husband (applicant 2) and brother, and when, where and why the photographs were taken.

11. At the Tribunal hearings the Tribunal spoke with applicant 2 about his background and his claims including his travel with the applicant to [Country 2] in July/August 2014 and his failure to claim protection there; the incident that the applicants claim occurred in April 2013 involving the applicant, his wife; why he claims that he fears to return to Bangladesh; his involvement in the Shahbag protest movement and the program in June 2015; the claimed attack upon him and his wife on 26 June 2015 after he had applied for a visa to come to Australia and two days before the visa was granted; his injuries from the attack, his treatment and the photograph submitted in support of the applications showing his injuries; why he and his wife remained for about one month in Bangladesh after he and his family had passports and visas to enable them to leave Bangladesh earlier; when and why the applicants made the decision to remain in Australia; applicant 2’s employment in [City 1] as a real estate agent until he travelled to Australia in 2015 and his intention when he left Bangladesh to return to Bangladesh and to that job/business; how he managed to live at his usual address and work in his usual employment right up until he travelled to Australia in July 2015 if he was afraid of harm in Bangladesh; his claim that he and his wife did not come to Australia to seek protection but later decided to do so; why documents submitted in support of the application/s for visa/review are stamped as authenticated [in] July 2015, that is at the very time he and his wife were leaving Bangladesh, and why those documents were obtained and prepared; why he attended at a police station to file a general diary in relation to the incident that he claims occurred in June 2015  but did not do so when his wife was attacked in 2013; the incidents claimed to have occurred at his and his wife’s parents’ houses in August 2015 after they (the applicants) left Bangladesh.

12. At the Tribunal hearings the Tribunal discussed with the applicants and the applicants’ advisor, the applicants’ request that it contact seventeen witnesses by telephone, being twelve witnesses in Bangladesh, and a further five witnesses in Australia, whom the applicants submitted could give the Tribunal evidence to support and corroborate their claims.  In the list of witnesses provided on 19 June 2019, and previously, three witnesses from Bangladesh were identified as relevant because they knew about the incident claimed to have occurred [in] April 2013, a further three witnesses were said to be relevant as they knew about the incident claimed to have occurred on 26 June 2015, two further witnesses were said to be relevant as they knew about the applicant’s activities and affiliation with [Group 1], a singing/social group in Bangladesh. In addition there were two witnesses from the applicant’s family being the applicant’s mother and applicant 2’s mother and two witnesses being priests/fathers who knew about the applicant’s religious activities.  The five witnesses in Australia were described as relevant as they could provide evidence about the applicant’s religious/singing activities in Australia. The applicants’ advisor provided to the Tribunal statements/other documents including documents described as general diary applications, from the witnesses whom the applicants requested the Tribunal to contact. A copy of the applicants’ list of witnesses is on the tribunal file.

13. Given that the Tribunal did not have concerns that the applicants were Christian/Roman Catholic and that it did not have concerns about the religious/cultural activities of either of the applicants in Bangladesh and/or in Australia, including the singing/performance activities of the applicant with the group [Group 1]  in Bangladesh at a program of the Shahbag movement, the Tribunal did not contact by telephone those witnesses in either Bangladesh or in Australia for oral evidence about these matters in addition to the evidence contained in relevant witness statements provided.

14. Given that the Tribunal had concerns that the applicants left their country and did not return to their country from Australia for the reasons that they claimed (these concerns were discussed with the applicants at the hearings), including because they were seriously attacked and threatened on two separate occasions, in April 2013 and in June 2015, the Tribunal tried a number of times to contact  by telephone the six witnesses in Bangladesh  whom it was claimed could give the Tribunal corroborating evidence about these incidents of [April] 2013 and [June] 2015. The Tribunal tried to telephone each of these six witnesses at the Tribunal hearing at least two or three times without success. After a short adjournment for the applicants’ adviser to seek further instructions from his clients, the Tribunal tried again to contact two of the witnesses as the applicants told the Tribunal that it had been able to contact them during the adjournment break. One witness’s number did not answer again, but the call by the Tribunal to the witness [Ms C] was successful.

15. The Tribunal spoke by telephone with the witness, [Ms C], about the statement that she made in support of the applicants’ applications, namely her statement stamped as authenticated and attested [in] July 2015; the statement is in relation to the  incident which the applicant claims occurred [in] April 2013. In response to questions from the Tribunal about when she made the statement the witness said that she was an eye witness and after the incident she went to a lawyer and wrote the statement but she does not remember the exact date that she made the statement. When the Tribunal asked her if she could remember when the incident happened she said that they were returning from a program with [Group 1], she was with them and there was an attack on them and then they went to a lawyer. She said that she cannot remember when this happened but she thinks it was in 2015 or 2016. When the Tribunal asked the witness more about what happened in the incident she said that she was in the vehicle behind, their vehicle was blocked and they were injured. When the Tribunal asked who was injured she said that plenty of people were injured in the feet and head and she then said that there were about 6 or 7 people in the vehicle and they were trying to save each other. The Tribunal clarified with her that she was saying there were 6 to 7 people injured in the attack on the applicant. She said that was the case and they were returning form the ([Group 1]) program and it happened after sundown. When the Tribunal asked her what happened after the incident she repeated that “we were behind them” and took them to a dispensary nearby for medical help although she could not remember the name of the dispensary. The witness said that “they were given first aid” at the dispensary and that “Mr [P (the applicant’s surname)] was taken for treatment to the hospital the next day” adding after that that both applicants were taken to the local hospital the next day. When the Tribunal asked the witness if she could tell the Tribunal more about the attackers or if she observed anything about them or heard them say anything she said that they were from the “majority community of Bangladesh” and they beat them up and robbed them adding that they all had their faces covered and when they went near their cart (rickshaw) they fled. She also told the Tribunal that the attackers were riding motorcycles.

16. The Tribunal asked the witness how she came to know the applicants in Bangladesh. She said that she and the applicant were members of [Group 1] and the Christian community. She also said that her elder sister and the applicant were teachers at the same school and that they all know each other through this.

    Post hearings 

1. On 8 July 2019 the Tribunal wrote to the applicants pursuant to section 424A of the Act inviting the applicants to comment on, or respond to, information which the Tribunal considered would be the reason or part of the reason for affirming the decisions under review. Particulars of the information, and the relevance of the information to the review,  were set out in the section 424A letter as follows-

2. "The first named applicant's evidence before the Tribunal about the incident claimed to have occurred [in] April 2013, is that at about 5.45 pm, as she was returning home from a [Group 1] performance together with her friends/fellow performers, five people wearing Islamic garments with beards like Islamic people, attacked her rickshaw in which she was travelling with her friend [Ms D]. She told the Tribunal at the hearing that at the time of the incident she was with three of her friends; she and [Ms D] were in one rickshaw and [Ms D]'s siblings, [Mr E] and [Ms C] were in another rickshaw.  She said that the attackers pulled her/her friend down from the rickshaw and they fell on the ground and were kicked and abused and threatened with further harm if they continued to sing against Islam. As a result of the attack her friend had a cut on her head and she herself "became senseless".  The attack happened in the afternoon when it was not dark. She was taken to [Hospital 1] as it was the closest hospital and they received first aid there. She remained unconscious for three hours and was released the next day about midday. She said that her husband did not attend the [Group 1] program/performance that day as he was at work and that he came to the hospital about seven in the evening.

3. The second named applicant's evidence about the incident that is claimed to have occurred [in] April 2013 is that at the time of the incident he was at work and went straight to the hospital when friends, who were with his wife, rang him and told him about the incident. She had been in hospital a few hours and went home in the morning (the next day). The friends told him that they/the applicant had been attacked by people with beards and wearing Islamic dress and that he should come to the hospital. He was told later that the attackers made threats and had said that if they sing any more "you will be hung by the neck". He said that he did not see the attackers but information about them was given to him by his wife and wife's friends.

4. The applicants produced to the Tribunal a statement from a witness, [Ms C], whom the applicants requested the Tribunal to contact by telephone in Bangladesh because she could corroborate the applicant's/applicants' evidence and claims before the Tribunal  about the incident of [April] 2013.  In the statement the witness states that - [in] April 2013 she was travelling with her brother [Mr E] in a rickshaw 100 yards in front of the rickshaw carrying her sister and the first named applicant returning from a performance of [Group 1].  She states that on the way home her sister and the first named applicant were attacked, threatened and injured by 5 to 6 people who seemed to be Islamic activists as they were dressed in Islamic dress and had long beards on their faces; that the first named applicant was wounded seriously and lying senseless on the street; that they took the witness's sister and the first named applicant to [Hospital 1] where they were treated; that she then telephoned the second named applicant and told him about the incident involving his wife and that he came to the hospital about one hour later. 

5. This witness however gave materially different details about the incident to the Tribunal at the hearing on 19 June 2019. At the hearing she said that she was an eye witness to the incident, that she did not remember the exact date of the incident but it happened in 2015 or maybe in 2016. She also gave different evidence to the Tribunal about where she herself was when she saw what happened during the incident saying that she was travelling behind the applicant, rather than 100 yards in front of the applicant as she stated in her statement. She also told the Tribunal that the applicant's vehicle was blocked and 6 or 7 people were injured in the attack, although no other persons injured were mentioned in her statement or by the applicants. She also told the Tribunal  that after the attack she/they took both Mr and Mrs [P] (the first named applicant and the second named applicant) to a dispensary which was the nearest medical help available where both Mr and Mrs [P] were given first aid treatment, and both Mr and Mrs [P] were taken to the local hospital the next day; in her statement however, and also in the evidence given by the applicants, Mr [P], the second named applicant, was not at the scene of the incident that occurred in April 2013 ( the evidence is that he was at work and contacted by the first named applicant's friends) and was not injured or taken for medical treatment after that incident and that neither Mr [P] or Mrs [P]  was taken to the local hospital the next day.  The witness also told the Tribunal that the attackers had all of their faces covered although she states in her statement that they had long beard/s on their faces and the applicants also make this claim.

6. This information is relevant to the review because at the Tribunal hearing the applicants' witness, [Ms C], gave the Tribunal materially different evidence about the incident of [April] 2013 from that in her statement produced by the applicants to the Tribunal in support of their claims, and also her oral evidence was different in material respects, from the evidence given by the applicants to the Tribunal about the incident they claim occurred [in] April 2013. This may cause the Tribunal to conclude that the evidence of [Ms C] is not true, that the evidence of the applicants' other witnesses about incidents that occurred in Bangladesh is not reliable and that neither of the applicants has given truthful evidence about what happened to them in their country to cause them to leave Bangladesh and/or not return there.

7. Further particulars of other information that the Tribunal considers would be the reason or part of the reason, for affirming the decisions under review are as follows-

8. The first named applicant told the Tribunal that the photographs of her husband, submitted in support of the applicants' claims that he was injured in an attack on them both on 26 June 2015, were taken the next day, at their home, for the purpose of the filing a police report/general dairy in respect of the incident, so that police could see his injuries. She said that they did not think to take the photographs earlier at the hospital.  After they were advised to go to the police the photographs were taken the next day when the wound was being dressed again at home by them as the wound had to be bandaged each day. The doctors told them not to go back to the hospital each day so that the dressing of the wound was done at home. 

9. The second named applicant told the Tribunal however that after the attack he went straight to hospital and was given first aid there but did not stay there; his wound was dressed but there was no stitching and something was put on it so that he has no scar. He was advised to dress the wound daily. He told the Tribunal that the photographs of him submitted in support of the application for the visa were taken at the hospital before he had any treatment and the photographs were taken so that he could see his injuries as people these days use their phones and not mirrors. He is not sure who took the photographs as there were three or four people at the hospital who could have taken them. He does not remember if the photographs were given to the police for the police report but said that he was actually present in person when they made the report so the police saw his injuries.

10. This information is relevant to the review because as the applicants have given different evidence about why, when and where these photographs of the second named applicant's claimed injuries  were taken, the Tribunal may conclude that the second named applicant was not injured in an attack on him and his wife in June 2015, that such an attack did not occur, that this evidence was fabricated to enable the applicants to be granted a visa to remain in Australia and that the applicants have not given truthful evidence about what happened to them in their country to cause them to leave Bangladesh and/or not return there.”

11. On 29 July 2019 the applicants’ advisor responded to the section 424A letter by providing a further statement from the applicant dated 29 July 2019, and a  copy of a further statement dated 15 July 2019 described as from/signed by [Ms C] attaching copies of four documents described as [Specialised Medical Report 1], a hospital discharge certificate (admission date [November] 2018 and discharge date [the next day]), a [specified] routine examination report and [Specialised Medical Report 2] from [a hospital] in relation to a patient called Mr [Q]. In the statement the writer says that her husband is paralysed and has been bedridden since January 2017, that he needs full time care, that she herself has mental health problems and problems with her physical health and “due to my physical, mental and personal illness” her oral evidence was “not exactly the same as the original incident” but “what I have presented in a written statement is the truth and correct”.

12. The statement dated 29 July 2019 from the applicant states that as regards the Tribunal’s concerns about the evidence from [Ms C] the latter told her after the hearing that she was undergoing stress and depression due to her husband’s health condition and she was confused due to her mental health issues. The applicant states that they have provided sufficient corroborative documents including many witness statements to confirm the incident and that the Tribunal should not disregard their claims simply because of the confusion of the witness who had stress related issues. In relation to the Tribunal’s concerns that the applicants gave different evidence about why, when and where the photographs of the second named applicant's claimed injuries (from the attack claimed to have occurred on 26 June 2015) were taken the applicant stated that her husband was confused as photos were taken by friends at the hospital before her husband’s treatment as well as by her after his treatment after they returned home to give to the police. The applicant also states that photos taken for their visa applications on 15/16 June 2015 and also cctv footage at the place which processes the Australian visas confirm there were no marks on her husband’s face at that time of application, and no marks on her face due to an attack. The mark on her husband’s face was the result of the incident on 26 June 2015. It is submitted that “there was an incident which occurred between 17 June 2015 and until we came to Australia which on the balance of probabilities corroborate(s) that there is a reasonable possibility that incident had occurred after 16 June 2015 and we submit that it occurred on 26 June 2015….. there was an incident on 26 June 2015 and as a result of that my husband sustained injury on his face”.

    COUNTRY INFORMATION

13. In addition to extensive country information references provided by the applicants’ advisor in submissions, and also the country information referred to by the delegate in the decision record, the Tribunal also consulted independent country information about document fraud in Bangladesh; in addition to the DFAT Country Information Report Bangladesh, 2 February 2018, the Tribunal consulted Immigration and Refugee Board of Canada, Responses to Information Request, BGD105263.E, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015.

14. The Tribunal also consulted the DFAT Country Information Report Bangladesh, 2 February 2018 at paragraphs 3.42 to 3.47 in relation to the position of Christians in Bangladesh. It is reported that no legal or other restrictions prevent Christians from freely practising their faith and Christians are entitled to equal treatment under the law. It is reported that Christians face a low risk of societal violence in the form of occasional localised violence which is likely to take place in the context of other events. It is reported that “Like other minorities, Christians may face a risk of sporadic attacks from Islamic militants”.

15. This country information was discussed generally with the applicants/applicants’ advisor at the hearing/s.

    FINDINGS AND REASONS

16. Essentially the applicants claim that they cannot return to their country, Bangladesh, because they fear they will suffer harm there from - members of the majority Islamic community; members of political parties who support and promote Islam including parties who promote Islam as the State religion including the BNP and Jamaat-e-Islami; and also Islamic extremists/fundamentalists. They fear harm because they are Christians (Roman Catholics), which is a minority group in Bangladesh, and also because they actively promote Christianity. The applicant claims that she is/will be considered an infidel by Islamic extremists who have the support of the authorities and she may be considered as a person who engages in blasphemy. In particular the applicant claims she has/will be targeted for harm because she has taught music, sometimes teaching Christian songs to Muslim children and has sung in/been a member  of [Group 1], a prominent community/social group in Bangladesh which is involved in protests and seeks justice for the oppressed through performances and singing. Further the applicants claim that they fear harm because the applicant and applicant 2 participated in programs of a movement (the Shahbag movement/protests) which involved protests including a protest against the sentencing/punishment of those convicted of war crimes by the International War Crimes Tribunal; the applicant participated in the movement/ protest in programs including at a program in 2013 as a member/performer of the singing group [Group 1] and applicant 2 also told the Tribunal that he participated in a protest march/ memorial program where he helped with “back room activities” giving food and water to performers/singers and protestors. The applicant and applicant 2 claim they are/will be considered to have a political opinion opposed to those who support Islam. Applicant 2 told the Tribunal that he fears harm in his country because he participated in a memorial march in June 2015 and also being the applicant’s husband is a second reason that he fears harm. He said however that the prime reason he fears harm in Bangladesh is because he was and will be targeted because he is in a minority group as a Christian/Roman Catholic.

17. The applicants claim that they were harassed, taunted and threatened in their country because they are Christians/Roman Catholics and that the harassment, taunting, threats and abuse became more vicious in the few years prior to their leaving Bangladesh. The applicant claims that she was threatened in an incident which happened in 2001/2. The applicants also claim that the applicant was attacked and injured in April 2013 by Islamic extremists because she is Christian, was a member of [Group 1] singing against Islam and participating through her singing with the group in the program at a Shahbag protest. They claim further that in June 2015 both applicants were attacked and injured by Islamic extremists because they are Christian and in the minority and because the applicant was accused of engaging in anti Islamic activities because of her singing/performances promoting Christianity. They further claim Islamic extremists came to their parents’ houses looking for them in August 2015 after they had left Bangladesh and those who came attacked and injured the applicant’s brother.

18. The applicants also claim that their daughter, the third named applicant, will not be safe in Bangladesh as the viciousness, derogatory remarks and constant threats and attacks on their minority group increased over the past few years before they left Bangladesh and they do not want to put their daughter at risk of harm and for her to suffer what they have suffered.

19. The applicants claim that they cannot get protection from the harm they fear in Bangladesh and cannot relocate to avoid harm there.

    Identity and Country of Reference

20. The Tribunal accepts and finds that the applicants are who they claim to be and that applicant 3 born in Bangladesh in [year] is the child of the applicant and applicant 2. As noted above their passports issued in [Bangladesh], were before the Tribunal and applicant 3’s birth certificate was produced to the Tribunal by the applicants. The country of reference for this application is Bangladesh.

    Applicants’ Travel History

21. The Tribunal finds that the applicant and applicant 2 travelled to [Country 2] from Bangladesh between [July] 2014 and [August] 2014 and that they each had multiple entry visas to visit [Country 2] valid between [May] 2014 and [November] 2014; the duration of their permissible stay in [Country 2] under the visa is shown as 180 days. Entries in the passports of the applicant and applicant 2 indicate that they travelled to [Country 2] between [July] 2014 and [August] 2014 and then returned to Bangladesh. Their [Country 2] visas in their passports show that they each had multiple entry visas to visit [Country 2] valid between [May] 2014 and [November] 2014 and the duration of their permissible stay under the visa is shown as 180 days.  

22. Having regard to the details in the applicants’ passports and in their applications for the visas the Tribunal finds that the applicants left their country [in] July 2015 and arrived in [Australia]; they entered the country as visitors having been granted their visitor visas for Australia on 28 June 2015. The applicants’ evidence before the Tribunal is that they were granted their Australian visitor visas on 28 June 2015, two days after they were attacked on 26 June 2015. The applicants both confirmed at the hearings that they applied for their Australian visas before the incident that they claim took place in Bangladesh on 26 June 2015.

    Applicants’ religion and religious/cultural activities

23. The Tribunal accepts and finds that the applicants are Christian/Roman Catholic as they claim and that as such they are/were members of a religious minority group in Bangladesh. The Tribunal also accepts that the applicant joined [Group 1] a singing group in 2001 as a singer/performer as she claims in her statement and that she has sung/performed with, [Group 1], in Bangladesh for many years at various cultural events and at various venues including at processions and at a gathering/program of the Shahbag protest movement in Bangladesh in 2013. She explained to the Tribunal that [Group 1] is not a Christian group or a political group affiliated with a party but it is a social group which sings and organises programs. She told the Tribunal that she was involved in that group as a singer and performer only but the group itself supported justice/punishment for war criminals as part of the Shahbag program. She told the Tribunal that although there was a political overlay to [Group 1] because it sought justice for the oppressed through its programs, it was not affiliated with a political party but was rather a social/cultural group. She said that she was a singer and performer and not politically inclined; the Tribunal accepts and finds this is the case. The Tribunal also accepts that applicant 2 attended a memorial gathering/protest march with many others in 2015 and he helped with back room activities giving food and drinks to protestors and performers at programs. The Tribunal also accepts that the applicant taught music/singing including at Christian schools in Bangladesh, and accepts that during her music teaching at times taught Christian songs to her students, including her Muslim students. The Tribunal also accepts that in Australia the applicants are involved with the religious/cultural activities of the Bangladesh Christian/Catholic community and that the applicant sings and also teaches music in the community, and church community, and is part of religious/cultural groups in Sydney, including the groups [Group 2] and [Group 3], with which she sings and performs.

1. The Tribunal accepts that in both Australia and in Bangladesh the applicant has sung and performed publicly at various cultural and Christian/Catholic church community venues and public forums and that there are recordings/video recordings/cd’s of her performances. The Tribunal accepts that through her singing, her music teaching and her performing at Christian/cultural events and programs she has celebrated Christianity and encouraged people to follow Christianity.

2. The Tribunal does not accept as true however that due to the applicant’s involvement  as a singer/performer including with [Group 1] and the Shahbag movement, or through her music teaching, the applicant became a notable person for Islamic extremists and a target of Islamic extremists and those who support them, including political parties who promote Islam as the state religion in Bangladesh; and/or that she or applicant 2 is/will be considered to have a political opinion opposed to those who support Islam; and/or that the applicant will be considered to be an infidel by Islamic extremists who have the support of the authorities; and/or that the applicant may be considered as a person who engages in blasphemy.

3. The Tribunal finds that it is not consistent with these claims and the applicants’ claims generally, namely that they left their country and cannot return there, because they were, and will be, harmed/threatened with harm and targeted for harm there, by Islamic extremists and those who support them including the BNP, because they were in a religious/Christian minority, because of their religious activities, including the applicant’s singing, public performances and music teaching, which promoted Christianity and was against Islam, and also their involvement in the Shahbag movement, that they managed to remain living in and around  their usual area, [City 1]  and remained working in their employment right up until they left Bangladesh to come to Australia; this was their evidence to the Tribunal. Further the Tribunal finds that it is also not consistent with their claims that they delayed leaving their country for one month after having passports and visas to leave there and travel to Australia after being granted their Australian visas on 28 June 2015; that they were undecided about returning to their country when they left there and came to Australia; and that after arrival in Australia [in] July 2015 they delayed applying for protection in Australia until 6 October 2015.

   Applicants’ employment and places of residence prior to leaving Bangladesh; the decision to remain in Australia; delay in leaving Bangladesh and delay in claiming protection in Australia.

4. The evidence of both the applicant and applicant 2 is that right up until the time they came to Australia they were living in and around [City 1] where they have always lived; the applicant said that before she came to Australia she had lived in [City 1] “proper” for eight years; they lived in the same suburb but changed addresses in that suburb because they had problems with rent and because her mother in law wanted to stay with them. As regards applicant 2, he told the Tribunal that he lived and worked in [City 1] after he was out of school, that just before he came to Australia he was living and working in [City 1] although he went back to his village sometimes as his mother and family was living in the village which was situated around [number] kilometres from [City 1]. The evidence of both applicants is that they were employed in [City 1] when they left Bangladesh and only resigned/ended their employment after coming to Australia and then deciding to stay in Australia.  As regards the applicant, in her application for the visa she gives her occupation in her country as music teacher and names the organisations she was working for in [City 1] indicating that she was employed in a school which she names from September 2009 until “current” and she also names another Christian organisation where she worked from March 2012 until July 2015. She confirmed with the Tribunal at the hearing that she was working at the school right up until she came to Australia, that she did not resign her job before she left Bangladesh and that it was not definite when she came to Australia that she would not return to Bangladesh as her whole life and her family members were in Bangladesh. As regards applicant 2, in his application for protection visa he gives his employment details from July 2001, indicating that from May 2008 until “current” he was employed in the [office] of [a Christian organisation] in [City 1]. Applicant 2, told the Tribunal that he was a [worker] employed in a business in [City 1] before he came to Australia, that he was employed in that job right up until he came to Australia, that he intended to return to that job when he left Bangladesh to travel to Australia and that he resigned from his job after making the application for protection visa or maybe just a little earlier.

5. Further both the applicant and applicant 2 both said that when they left Bangladesh and came to Australia in July 2015 they were undecided for some time about whether they would apply to stay in Australia or return to Bangladesh from Australia. They said that they came to Australia to visit at the invitation of the applicant’s uncle who is an Australian permanent resident and they did not apply to come to Australia to seek protection. They both said that they were undecided about whether to stay in Australia because they had good jobs in Bangladesh, they had family there and it was hard for them to leave their country; they made the decision to stay in Australia and seek protection after they arrived here and talked to relatives in Australia and lawyers and it was to secure the future and safety of their child, applicant 3, that they decided to seek protection and stay in Australia. 

6. In the Tribunal’s view it is not consistent with the applicants’ claims that they were, and fear they will be, targeted for harm and or suffer harm in their country, by those they claim to fear for the reasons that they claim, that both the applicant and applicant 2 were able to continue to live at their usual addresses and work in Bangladesh in their usual jobs during the time they were in Bangladesh right up until they left that country to come to Australia. Further, in the Tribunal’s view, if the very serious claims that the applicants make about what happened to them in Bangladesh, including in incidents in April 2013 and in June 2015, were true neither the applicant or applicant 2 would have been undecided about whether they would return to Bangladesh after arriving in Australia [in] July 2015 as they claim they were and they would not have delayed applying for protection in Australia until 6 October 2015. Given the seriousness of the harm they claim to fear in their country if they return there, including the concerns they claim to have about the safety/security of their child, the Tribunal does not consider that either the applicant or applicant 2  gave a reasonable or plausible explanation for being undecided about whether or not they would return to Bangladesh after coming to Australia, and why they delayed applying for protection in Australia; the explanations were variously that they had good jobs in Bangladesh, their life was there, their families were there, it was difficult and painful for them to decide not to return to their country, they talked to family and lawyers, there was a language barrier, it took time to arrange. While the Tribunal understands that these matters are valid concerns for a person deciding whether to leave their country in ordinary circumstances, in  the context of the applicants’ claims  that they have been, and will be, very seriously harmed if they return to Bangladesh and cannot return there for that reason, these matters are not a reasonable explanation, in the Tribunal’s view, for delay in, and indecision about, applying for protection from the harm feared when given the opportunity to do so.

7. Further, in the Tribunal’s view, given the seriousness of the claims that the applicants make about what happened to them in Bangladesh, including their claims about what happened to them on 26 June 2015 two days before they were granted their Australian visas, and their claims that they were receiving ongoing abuse and threats of harm including because they were in a religious minority,  neither the applicant or applicant 2 gave the Tribunal a reasonable or plausible explanation for why they delayed leaving Bangladesh for about one month, until [a date in] July 2015, given they had current passports and were granted their Australian visas on 28 June 2015. The applicant said that she would have lost her job had she left, they had to make arrangements, they could not decide what they had to do, they had to wind up their life. Applicant 2 said that although they were in “scared mode” they had jobs, they wanted their lives there in Bangladesh. Applicant 2 said that he moved around stealthily and he tried to keep a low profile and referred to going a different way to work to avoid harm but the Tribunal does not accept this is true. It is not consistent with applicant 2’s claims that he feared harm to the extent that he had to keep a low profile getting to work and had to move around stealthily that he did not leave Bangladesh earlier that he did so given that he had the travel documents to do so.  The Tribunal does not consider either the applicant or applicant 2 gave a reasonable explanation for their delay in leaving Bangladesh with applicant 3 given the very serious situation that they claim they were in in their country, a situation so serious that they claim they cannot return to Bangladesh because they will be harmed there.

   Failure to apply for protection in [Country 2]

8. The Tribunal finds that neither the applicant nor applicant 2 claimed protection when they were in [Country 2]; this was the evidence of each of them before the Tribunal. The Tribunal finds that their failure to apply for protection in [Country 2] when they visited there in July/August 2014  is not consistent with their claims about what happened to them in their country to cause them to leave there and why they cannot return to their country but require protection in Australia.

9. When the Tribunal asked the applicant why it was that she did not claim protection in [Country 2] and why she did not at least stay in [Country 2] for the time the visa allowed her to stay, given the very serious claim she makes about the attack on her in April 2013, she said variously that she thought she had to take it in her stride, that she had a permanent job in Bangladesh, she wanted to live in her country, she thought it would not be repeated and was an isolated incident.  She also said however that as a person in a minority religious group she they were getting ongoing taunts and threats that were escalating and becoming more vicious in Bangladesh and that she/they were under a constant threat in the last few years before they left their country to come to Australia and could not get any help from law enforcement in Bangladesh because she was a minority group. Although she said that her husband’s uncle was in [Country 2] but did not give them advice about seeking protection and that she did not know about claiming protection in [Country 2] she agreed that she did not make any enquiries in [Country 2] to stay there or tell anyone what had happened to her in her country; she then said that they did not apply for protection in [Country 2] because they thought they had to take these matters in their stride.  In the Tribunal’s view it is not consistent with her claims that she was harmed and feared harm in Bangladesh for the reasons that she claims, including because she was in a Christian/Roman Catholic minority that received ongoing and increasingly vicious threats and abuse in Bangladesh, and also because she promoted Christianity through her singing and performances and her teaching and was involved in the Shahbag movement through her singing, that she did not claim protection or seek to claim protection in [Country 2]. When the Tribunal asked applicant 2 why he did not apply for protection in [Country 2] in 2014, and did not stay even for the duration of the visa grant, in the Tribunal’s view he did not give a reasonable explanation given the very serious incident involving his wife that he claims took place in April 2013 and given also his evidence that he told the Tribunal that his main fear of harm in his country is his fear of harm because he is part of a Christian minority group in Bangladesh which is threatened and abused. He told the Tribunal that they went to [Country 2] for visit only, he did not want to leave his country and live in another country for a “stray incident”, he had a good job to go back to in Bangladesh and thought he/they would “be ok” in Bangladesh. In the Tribunal’s view the explanation that he thought the incident in April 2013 was a “stray incident” is not consistent with his evidence to the Tribunal that his main fear of harm in Bangladesh is because he is part of a Christian minority in Bangladesh and that minorities are and will always be targeted for harm there.

   Incident claimed to have occurred in 2002

10. The applicant claims in her statement dated [October] 2015 that in October 2002 Islamic extremists tried to abduct her but she escaped. She told the Tribunal that she disregarded this incident at the time and that it had no importance; it was a separate incident. She explained to the Tribunal that the incident happened at a freshers’ program when she was admitted to college; after she had been on stage singing a Muslim boy proposed to her and she refused and he later blocked her path where she was with some friends. He threatened to abduct her and as a result of this she stopped going to college and started teaching music from home. She told the Tribunal that she studied until year 10 only and never saw the person again after that incident.

11. While the Tribunal accepts that this incident occurred many years ago, around the time the applicant was of college age, it finds that the incident was not an important incident for the applicant and that she went on to live in Bangladesh and have an occupation as a music teacher and performer and singer in the community in her country for many years after that incident occurred; that was her evidence before the Tribunal. The Tribunal finds that the applicant did not and does not fear harm in her country because of this incident which she described as separate or isolated and of no importance to her in 2002 when it occurred. When the Tribunal raised the incident with her at the hearing she initially had difficulty recalling it without prompting from the Tribunal referring to her statement.

    Incidents that are claimed to have occurred [in] April 2013 and on 28 June 2015

12. Given the Tribunal’s findings and reasoning above, in particular the Tribunal’s findings that it is not consistent with the applicants’ claims that they were targeted and threatened in Bangladesh and attacked by Islamic extremists in Bangladesh in April 2013 and in June 2015, that they delayed leaving their country for one month after having passports and visas to leave there and travel to Australia after being granted their Australian visas on 28 June 2015; that they were undecided for some time about returning to their country when they left there and came to Australia; and that after arrival in Australia [in] July 2015 they delayed applying for protection in Australia until 7 October 2015; and also that they did not apply for protection in [Country 2] in 2014 after the very serious incident that they claim occurred in Bangladesh in April 2013, the Tribunal finds that the applicants  have not given truthful evidence about what happened to them in their country to cause them to leave there.  In particular the Tribunal finds that they have not given truthful evidence about the incidents claimed to have occurred in April 2013 and in June 2015. Also given the concerns that the Tribunal has with the evidence of [Ms C] who was the only witness that the Tribunal was able to contact amongst the six witnesses said to be eye witnesses to the incidents of [April] 2013 (three witnesses including [Ms C]) and 26 June 2015 (three witnesses), and also given that the Tribunal finds that  the applicants gave untrue evidence to the Tribunal relating to injuries they claim applicant 2 received in the incident said to have occurred on 26 June 2015, the Tribunal  does not accept that either the of the incidents took place as the applicants claim. It follows that the Tribunal does not accept that the applicant and/or applicant 2, was targeted for harm, or harmed as they claim for the reasons that they claim in either of these incidents.

13. As detailed in the s.424A letter sent by the Tribunal to the applicants, the contents of which are set out in full earlier in this decision, at the Tribunal hearing the applicants' witness, [Ms C], gave the Tribunal materially different oral evidence about the incident of [April] 2013 from that in her statement produced by the applicants to the Tribunal in support of their claims, and also her oral evidence was different in material respects, from the evidence given by the applicants to the Tribunal about the incident they claim occurred [in] April 2013.  In the Tribunal’s view the response to the S.424A letter namely that the witness had difficulties at the time she gave her oral evidence to the Tribunal because her husband has been very ill for some time  and her oral evidence was different “due to her physical, mental and personal illness” is not a reasonable or plausible explanation having regard to the nature and extent of the differences in her evidence, especially as regards the year of the occurrence of the incident and who was present at that incident. The Tribunal finds that both the oral evidence of [Ms C] and the evidence in her written statement is not reliable. 

14. In support of the applicants’ claims that they were both attacked by Islamic extremists on 26 June 2015 and that applicant 2 was injured/cut on his face during the attack the applicants produced copies of two photographs described as showing the injuries of applicant 2, including a photograph which the applicants both claim show a gash on his face. When the Tribunal questioned the applicant and applicant 2 about the photographs the applicants gave different evidence about why, when and where these photographs of applicant 2’s claimed injuries were taken, in particular the injury to his face; the particulars of the oral evidence given by the applicant and applicant 2 to the Tribunal are set out in the s.424A letter sent to the applicants by the Tribunal; the contents of the s. 424A letter are set out in full earlier in this decision. Given that the evidence of the applicants was different as to why, when and where  the photograph of the applicant’s alleged facial injury was taken, in the Tribunal’s view the response to the s.424A letter did not provide a reasonable or plausible explanation for the different evidence provided by the applicants at the hearing. The explanation was that applicant 2 was confused about the photographs and that photos taken for their visa applications on 15/16 June 2015 and also cctv footage at the place which processes the Australian visas confirm there were no marks on her husband’s face at that time of application for the visa. The Tribunal finds that the photographs of applicant 2’s claimed injuries are not reliable evidence that the applicant 2 was injured in an attack on him in June 2015 as the applicants claim and they are not reliable evidence that such an attack occurred. The Tribunal finds that these copies of photographs were produced by the applicants in support of their application for protection to give credence to their claims that such an attack occurred so that they would have a better chance to be granted a visa to remain in Australia. The Tribunal finds that the applicants have given the Tribunal untrue evidence in relation to their claims that applicant 2 was injured in an attack on the two of them in June 2015.

1. Given the credibility concerns that the Tribunal has about the evidence of both the applicant and applicant 2, and given the country information consulted by the Tribunal about the prevalence of document fraud in Bangladesh, which information was discussed generally with the applicants/the applicants’ advisor at the hearings, the Tribunal finds that the document  described as an application to the police for  a general diary entry by applicant 2  in relation to the incident  claimed to have occurred on 26 June 2015 is not reliable evidence of the facts in it. The Tribunal notes that the document is dated 29 June 2005 on the top left hand side but is dated also “29/6/15” on the top right hand side. Further and for the same reasons the Tribunal does not accept as truthful the evidence of the applicant in her statement that the incident claimed to have occurred on 26 June 2015 and also the incident claimed to have occurred [in] August 2015 after the applicants left Bangladesh, were reported in [media].

2. As noted above the Tribunal has concerns about the credibility/reliability of the witness [Ms C] and concerns about the credibility of the applicants, including because of their delay leaving their country for one month after having passports and visas to leave there 2015, their indecision about returning to their country when they left there and came to Australia and their delay in applying for protection in Australia after arriving in Australia [in] July 2015 until 6 October 2015 and also the failure of the applicant and applicant 2 to seek protection in [Country 2] in 2014 which was after the alleged attack on the applicant in 2013 (these concerns and the findings and reasons in relation to them are set out above earlier in this decision). Given these concerns about the credibility of the applicants and the witness the Tribunal was able to contact in Bangladesh, the Tribunal finds that the statements of the five witnesses whom the Tribunal tried unsuccessfully to contact by telephone ([Ms D], [Mr E], [Mr A], [Mr B] and [Mr O]), referred to by the applicants as witnesses who would corroborate the applicants’ evidence about the incidents claimed to have occurred in April 2013 and in June 2015, are not reliable evidence of the facts in those statements and the Tribunal gives them no weight.

3. For the same reasons the Tribunal finds that the undated statement of [Mr F], which refers to the applicant as in danger including because of her performances in [Group 1], “against terrorism and fundamentalists for the sake of the democracy of the country” and in “need of safe shelter”, is not reliable evidence of the facts in it about the applicant. Also given the credibility concerns that the Tribunal has with the applicants’ evidence, and that of their witness [Ms C], the Tribunal considered it would not assist the Tribunal to speak by telephone in Bangladesh with [Mr F]; the Tribunal considered that speaking with this witness in Bangladesh by telephone could not overcome the concerns that the Tribunal has with the applicants’ evidence.  Similarly, and for the same reasons, the Tribunal did not attempt to speak by telephone in Bangladesh with [Mr M], described as the ex General Secretary of [Group 1] in [City 1] and does not give any weight to the comments about the applicant in his undated statement provided to the Tribunal. The statement makes general comments about [Group 1] and its history and instances of attacks and killings by Islamic fundamentalists in Bangladesh but in its penultimate sentence refers to an assault on the applicant and others [in] April 2013; it states that the applicant and her companions were assaulted [in] April 2013 and “After such assault, I went to meet her and advised her to take help of the law enforcing agencies”. When the Tribunal spoke with the applicant about the alleged assault on her in April 2013 and what happened after the assault she said that only her family and extended family and close friends knew about the attack but no one else knew, and when the Tribunal asked her if she told anyone from [Group 1] about the attack she said that the people whom she sang with in [Group 1] knew about the attack but she was so traumatised she did not tell people. When the Tribunal asked her whether she got advice from anyone after the incident she said although people knew they did not give her any advice and she confirmed that she did not go to the police because she was in a minority group and thought that would just cause more problems. When the Tribunal raised the name of the witness [Mr M] however the applicant then said she discussed the assault with him as he was at the singing program; she discussed the incident with him about 4 to 5 days after the incident. When the Tribunal read to her the section in the witness’s statement where it is written that he went to meet the applicant after the assault and gave her advice to take help of the law enforcing agencies, and queried with her that she had earlier said that she did not get any advice, she said that she did discuss the attack with him. The Tribunal considers that the applicant modified her evidence to answer the Tribunal’s concerns that it differed from what was in the statement of one of her witnesses. The Tribunal does not consider that the evidence in the statement of [Mr M] is reliable evidence that the applicant was attacked in April 2013 as she claims for the reasons that she claims.

   Incidents claimed to have occurred in Bangladesh on [a date in] August 2015 after the applicants left Bangladesh

4. Given that the Tribunal does not accept as true that the applicants, or any one of them, was targeted for harm, or harmed, for the reasons that they claim while they were in Bangladesh, and given that the Tribunal has credibility concerns about the evidence of the applicant and applicant 2, the Tribunal does not accept as true that people searching for the applicants, described as Islamic extremists, went to the applicants’  family homes looking for the applicants on [date] August 2015 after the applicants had left Bangladesh and that these people assaulted the applicant’s brother when they could not locate the applicants. The Tribunal does not accept that the copy of a photograph of a male person with a bandage on one of his arms submitted by the applicants as a photograph of the applicant’s brother after he was assaulted in August 2015 is any more than a photograph of a person with a bandage around his arm; the Tribunal finds that it is not reliable evidence that the claimed incidents occurred and/or that the assault took place.

5. Further the Tribunal has considered copies of the following five documents  in relation to the claims about the incident [in] August 2015- the two documents claimed to be applications for general diary entries, both dated [on the same date in] August 2015, alleged to have been made by the applicant’s mother, and applicant 2’s mother;  the document headed “certificate” dated [later in] August 2015 described as given by the Chairman of [Union Parisad 1] certifying that on [a date in] August 2015 four young men came to applicant 2’s house and that applicant 2’s mother filed a general diary with the police about it; the copies of two documents dated 31 January 2019 headed “[Name 1] and Associate” stating that the writer had been shown the general diary entry records of the applicant’s mother and applicant 2’s mother, dated [date] August 2015, at [a named] Police Station. The Tribunal finds that these five documents are not reliable evidence that the events referred to in the documents occurred. The Tribunal makes this finding because of its concerns about the applicants’ credibility, and the country information consulted by the Tribunal indicating the prevalence of document fraud in Bangladesh.

6. The Tribunal did not consider it would assist it to overcome its concerns about the applicants’ evidence, to ring the mothers of the applicants about the incidents claimed to have occurred on [a date in] August 2015 and about the general diary applications claimed to have been made by them and produced in support of the applicants’ applications for visa; given their relationship with the applicants the Tribunal considers that they would have an interest in the outcome of the Tribunal’s decision and would not give the Tribunal reliable and impartial evidence about the matter. The Tribunal did not consider it would assist the Tribunal to telephone the Chairman of [Union Parisad 1] about the certificate document, or the writer of the “[Name 1] and Associate” documents, given its concerns about the credibility of the applicants in relation to their claims about why they cannot return to their country, including because they were and will be targeted for harm by Islamic extremists there.

   Report by Psychologist

7. The Tribunal considered the psychologist’s report in relation to both the applicant and applicant 2 which was produced to the Tribunal in support of their claims. The applicants’ advisor told the Tribunal that the report was prepared and given to the Tribunal as evidence that the applicants were vulnerable. The Tribunal accepts that the conclusions of the psychologist are based on her professional opinion and experience and also accepts that the applicants are anxious about the outcome of their visa application. The Tribunal does not accept that the report of the events that happened to the applicants in Bangladesh which is referred to in the psychologist’s report, is reliable evidence that those events took place given that the report of those events is expressed to be the psychologist’s understanding of the situation and history of the applicants as given to the psychologist by the applicants for the purpose of the psychologist’s assessment and report. The Tribunal has found above that the applicant and applicant 2 are not credible as regards those events that they claim happened in their country and which they claim cause them to fear to return to there.

8. To the extent that the applicants claim that they had a difficulty presenting their evidence because they are vulnerable, anxious or depressed the Tribunal finds that in its view neither applicant had any difficulty answering the Tribunal’s questions, or presenting his/her/their evidence and/or arguments before the Tribunal in any of the three hearings that the Tribunal held.

   Claims on behalf of child - applicant 3

9. The applicants also make claims on behalf of their child, applicant 3. The applicant claimed on her behalf that they do not want to put her at risk by returning to Bangladesh and do not want her to suffer the attacks and threats of harm that they suffered because she is in a minority group as a Christian in Bangladesh as they are. The applicant claims that the viciousness in the threats and abuse against them as members of a Christian minority group escalated for the few years before they left Bangladesh and they do not want their child to be afraid for her life in Bangladesh as they were.

10. As discussed above in this decision the Tribunal does not accept as true that the applicant or applicant 2 was attacked in Bangladesh or that either applicant 2 or the applicant fear or feared for their lives, or applicant 3’s life, in Bangladesh for the reasons that they claim. Further the Tribunal does not accept as true that the applicant experienced increased viciousness in threats and abuse in the few years before she left Bangladesh as she claims. As discussed above in this decision, in the Tribunal view’s this claim is not consistent with her failure to claim protection in [Country 2] when she was there in 2014, her failure to stay in [Country 2] for the length of the visa she had been granted in [Country 2], and her delay in leaving her country when she had a passport and visa to do so in June 2015.

    CONCLUSION

11. As discussed above the Tribunal does not accept as true the applicants’ claims that they, or any one of them, cannot return to their country, or that they fear to return to their country, for the reasons that they claim. The Tribunal accepts that on return to their country the applicants will engage/be involved in their Christian/Catholic church community and be involved in cultural and church activities as they did for many years prior to leaving Bangladesh, and have done also since coming to Australia. The Tribunal accepts that the applicant will continue to sing and perform including as part of groups, and teach music, in Bangladesh as she did when she was residing there. While the Tribunal accepts that the applicant and applicant 2 have encountered, and the applicants will in the future encounter, some harassment and taunts because of their Christian church activities, including the applicant’s singing, teaching and performing, and because they are in a Christian minority group in Bangladesh, it does not accept that these taunts and harassment amount to serious harm for the purposes of the refugee criterion or significant harm for the purposes of the complementary protection criterion. The Tribunal does not accept as true that the applicant was attacked by Islamic extremists in April 2013 and/or that both the applicant and applicant 2 were attacked by Islamic extremists in June 2015, including because of their being part of a Christian/Roman Catholic minority in Bangladesh, and/or because the applicant promoted Christianity because of her singing, her teaching, including sometimes teaching Christian songs to children who were Muslim, and her performing with [Group 1], including as part of the Shahbag movement. While the Tribunal accepts that independent country information indicates that Christians, like other minorities in Bangladesh, may sometimes face a risk of sporadic attacks from Islamic militants/extremists the country information also states that Christians face a low risk of societal violence in the form of occasional localised violence. Given the country information and given that the applicant and applicant 2 have lived and worked in their country for many years, have left their country and returned there from [Country 2], and  had ongoing involvement with the Christian/cultural community there, and with [Group 1], for many years while they resided in Bangladesh according to their evidence, the Tribunal finds that there is not a real chance or real risk that the applicants, or any one of them including applicant 3, will suffer serious harm or significant harm in Bangladesh from those the applicants claim to fear, including Islamic extremist groups and those who support them such as the BNP, for the reasons that they claim, including because they are part of the Christian minority in Bangladesh; because they have taken part in protests/ programs/marches as a part of the Shahbag movement; because the applicant was involved with performing and singing Christian songs with [Group 1] and teaching Christian songs sometimes to her Muslim students; and/or because of their involvement and activities with the Christian church and church community in Australia, to the extent that they make that claim.

12. The applicants gave the Tribunal evidence, including medical evidence, about the medical treatment of applicant 3 in Australia for a [medical] condition, including surgery which she had in Australia in February 2017. The applicant told the Tribunal that her child’s [condition] was first detected when she was one month old in Bangladesh and treatment was started there then; doctors there believed the [abnormalities] would repair themselves and no surgery was recommended. The applicant said that when they came to Australia however and the doctors were treating applicant 3 for [another illness], they said that although one [abnormality] had repaired the other one had not and needed surgery; the surgery took place in 2017. The applicant told the Tribunal that no further surgery is proposed, that applicant 3 does not take any medication apart from vitamins because she in underweight and that she will be reviewed soon, after 2 years from the operation. The applicant told the Tribunal that she did not come to Australia to get treatment for her child’s [medical condition] and the Australian doctors recommended the surgery during the child’s treatment for [the other illness].

13. As regards applicant 3, the Tribunal considered whether, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Bangladesh, there is a real risk that she will suffer significant harm because of her medical condition and/or need for treatment. Given that  the applicant told the Tribunal that her child was receiving treatment for her [condition] in her country before she came to Australia, that she did not came to Australia to get treatment for applicant 3, that her daughter has had surgery for the [condition] in Australia and is not taking any medication nor is any further surgery proposed the Tribunal finds that for the purposes of  s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of applicant 3 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 she cannot get proper and adequate medical care and treatment there for her [condition].

14. For the purposes of the ‘refugee’ criterion the Tribunal finds that the applicants do not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his/her race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if they, or any one of them, return to their country.  Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants, or any one of them, being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that those applicants, or any one of them, will suffer significant harm.

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants protection visas.

    Ms Christine Long
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …