1608179 (Refugee)

1608179 (Refugee) [2018] AATA 5072 (23 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608179
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Luke Hardy
DATE:23 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 October 2018 at 1:17pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – atheist – imputed political opinion – government critic – secularist – free-thinker – journalist – anti-Islamist bloggers – killing of bloggers – fear of killing – state protection – return visits to Bangladesh – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [named], is a citizen of Bangladesh. He first entered Australia on a [temporary] visa [in] February 2015 and departed again for Bangladesh [a few days later]. He re-entered Australia on the same visa [in] March 2015, departing again for Bangladesh [in] April 2015. His visa remained valid until [a date in] May 2015. He applied for a further [temporary] visa and this was granted on 20 August 2015, valid to [a date in] September 2015. He last entered Australia [in] August 2015 and lodged a protection visa application on 29 September 2015. The delegate refused to grant the visa on 20 May 2016.
[The applicant] appeared before the Tribunal on 30 August 2018 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Bengali-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department
In his protection visa application, [the applicant] claimed to be an atheist, having been raised a Muslim by a strict and abusive father and having become disillusioned with religion generally. He claimed he learned secular humanism under the guidance of the late, much celebrated Bangladeshi [Writer A]. [Deleted.]. He said this was when militant Islamism began its rise in Bangladesh. He said he was given an autograph unpublished [work] by [Writer A] before the latter died [in year].
[The applicant] claimed he took a photography course and started publishing photographs of Bangladeshi slums with a local NGO, to the chagrin of “rich and fanatical Muslim people” who regarded him as an “eyesore. He said he then went to work for [a named] newspaper in [City 1]. He said he sometimes photographed police clashing violently with opposition leaders and protesters.
[The applicant] claimed he became well-known as a photojournalist. He said he joined another [newspaper] called [Newspaper 1], which paid him to cover [specified] events such as [one event] in Australia [in] 2015.
[The applicant] claimed that while he was in Australia,
a group of fanatic Islamic militant[s] visited my house and threatened my wife and asked my wife to [stop] me from doing work with the newspaper. However I [did] not care [about] it and I returned to Bangladesh. I tried to observe the situation and I found my life became at risk from [militant] fanatics … in Bangladesh.
[The applicant] submitted a translated letter purportedly written by his wife; he called this a “police report”. The document has a notation at the bottom giving the name of a purported investigating officer, and it appears to be stamped with a registration number entered by hand at the top. The translated “report” states:
… I came to inform you that last [date] evening at 4.00 o’clock some unknown people came to our house. They were looking for my husband. They asked me where [is] your husband [named]? … They [were] mentioning my husband writing in the News Paper. They was mentioning about blogger and crime news. I asked them what the problems are. They said you husband makes us trouble. They said tell your husband to stop reporting about us otherwise we know what to do. They was indicating [a threat upon] my husband[’s and] my life…
[The applicant] claimed he wrote a number of articles, published in [Newspaper 1], that discussed recent killings of anti-government bloggers in Bangladesh. He claimed that as a result of these articles his life became “more risky”. He claimed that [in] July 2015, while he was travelling on a bus from his home to his office, he noticed that he was being monitored by two men. He said he got off the bus, called his boss at the newspaper and was picked up and driven to work. He claimed he tried to report the matter to the police, who said they could not help without any information identifying the alleged militants.
[The applicant] claimed he attended a public protest against the arrest of journalists [named]. I note that [one of them], was arrested [in] August 2015,[1] and that [the other] was arrested [in] August 2015[2]. [The applicant] claimed vaguely that he became “a target of the government agency” after this protest. He said he felt “alerted” to leave Bangladesh by this and also by the number of murdered bloggers in the country at that time. However, he also said that when he left Bangladesh to escape this danger, he was given the opportunity to cover [an international story in Country 1 and] Australia. He called his [Country 1] stopover a one-day transit in his protection visa application form, but the evidence in his statement to the Department and the evidence in his passport indicate that he was there for the better part of four days covering a [story] before coming to Australia to do the same. He did not apply for protection until the day before his working visa expired.
[1] [Source deleted.]
[2] [Source deleted.]
[The applicant] submitted copies of English-language reports in Bangladeshi newspapers and Internet news sites reporting, sometimes with dismay, he killings of a number of journalists and anti-government bloggers between 2013 and 2015. In a similar vein are translations of commentaries by [the applicant] that he claims were published in Bengali in [Newspaper 1] on [dates in] August 2015: one of these criticises the lack of progress by police in the matter of the killings of a number of well-known bloggers and accuses the government lacking the will to bring the killers to account; the other citing the [Writer A] and criticising a “culture of injustice” in Bangladesh that takes the arrest and killings of journalists in its stride. [The applicant] later showed me evidence of these articles having been published as claimed. Overall, the insights in [the applicant’s] articles are not different in tone or detail from those of the other journalists whose articles he also submitted. He and other commentators blame non-state agents for the killings but all appear to say that the authorities are complicit as long as they fail to bring the killers to justice. The newspapers in which these articles were published are all evidently still operating. The public response to the arrests and killings described appears to have been widespread, given the number and range of articles presented, many of them appearing on front pages of the various journals cited. [The applicant] has not suggested that the authors of these articles have been killed or otherwise seriously harmed.
Evidence to the delegate
[The applicant] told the delegate he was an atheist by the time he was [age] in [year]. He said that his family excluded him from various traditions and gatherings after he told them he was atheist. He said he had not been abused or mistreated by society at large but did receive some negative and abusive comments from neighbours because he did not attend prayers locally.
[The applicant] told the delegate that his friendship with [Writer A] increased the risk to his life. The delegate asked [the applicant] why fundamentalists would have continued to harass him after [year], when [Writer A] died, and he said that they did so because he had received some unpublished work from [Writer A] and remained in contact with his family. The delegate did not accept that [the applicant] faced a real chance of persecution for reasons of being an atheist, as he was not a high-profile one who managed “pro-atheist” campaigns. The delegate relied on independent country information gathered by DFAT:
3.49 DFAT assesses that instances of violence against atheists are isolated and directed at high-profile individuals who personally manage ‘pro-atheist’ campaigns. Atheists are generally able to live free from discrimination and violence on a day-to-day basis in Bangladesh. Atheists have a low risk of being arrested or detained by state authorities under the ICT Act.[3]
[3] DFAT Country Information Report: Bangladesh, 20 October 2014
The delegate found that [the applicant] had no subjective interest in propounding atheism to others.
[The applicant] told the delegate that he had attracted the hatred of Muslim fundamentalists because he had promoted the work of [Writer A], even though he had never said anything anti-Islamic. However, the only “harm” he described in response to this activity was neighbours looking at him “weirdly”. He said the first trouble he had with Muslim fundamentalists came in March 2015 when the Islamists visited his wife and accused him of writing against Islam while he was in Australia. The only submitted items of journalism not covering [his usual specialty field], however, are those that [the applicant] claims to have written and published in mid-August 2015. The delegate did not believe that Muslim fundamentalists only started to harass [the applicant] in 2015 after he had already been an atheist and been writing in support of [Writer A] for over ten years.
[The applicant] claimed that his articles about the police’s poor response to the killings of the bloggers exposed him to threats from the Bangladeshi government. He cited a demonstration where he encountered police officers in early August, discussed below, as an example of this. However, there is no suggestion in the photographs of the demonstration that the police were other than civil in marshalling the demonstration: some of the photographs suggest that the police, with their backs to the demonstrators, are guiding the direction of the protest on the street.
[The applicant] told the delegate that he had no difficulties leaving Bangladesh on any of the three occasions when he departed for Australia; this is supported to a degree by the exit stamps in his passport.
Evidence to the Tribunal
[The applicant] submitted more recent articles relating to the killing of secular, pro-LGBT and atheist bloggers in Bangladesh. A number of these reports are investigatory and quite critical of perceived shortcomings in the authorities’ response to various murders over the years. One of them criticises the Prime Minister Sheikh Hasina’s unfounded accusation to the effect that opposition parties are responsible for [some events] and are trying to accuse the government of [destabilising] the country. One article features [a specific event]. Another asserts that life has become dangerous for atheists in Bangladesh.
[The applicant] submitted a translated letter from [a relative] of [Writer A], attesting to [the applicant] being a photographer and a “cultural minded” person who received from the [writer] a gift of unpublished [work].
[The applicant] submitted letters attesting to his activities as a community photographer and photojournalist in [Australia]. I find that he has engaged in these activities in good faith, consistent with his vocation as a photojournalist in Bangladesh. On the evidence before me, I find no reason to disregard these activities under s.5J(6) of the Act.
[The applicant] submitted photocopies of [IDs] that credentialed him to attend various [official] events in his capacity as a photojournalist. He submitted copies of photographs of himself with various [public figures]. He submitted some photographs that show him attending an evidently peaceful political rally in early August 2015 with a group of adult males who appear to be talking to, and marshalled by, unarmed police; there is no suggestion in the photographs that the event involved any conflict with the authorities. [The applicant] told me that the demonstration depicted in these photographs was a demonstration by journalists protesting the killings of the bloggers and free-thinkers in Bangladesh. He said the “police are against journalists”.
[The applicant] also resubmitted much of the material already submitted to the Department, with the particular addition of another article in English that is critical of Sheikh Hasina’s Awami League (AL) government.
At the Tribunal hearing, [the applicant] said he supports no particular political party in Bangladesh. He did not suggest that he is imputed to support any particular party either. He indicated that his problems stem from the perception that he is an atheist and anti-Islamist journalist.
[The applicant] told me that he received a death threat from Islamists in 2008. He said that the people who threatened him said that if he ever published anything again they would kill him. This was a new claim not disclosed in [the applicant’s] original protection visa application. I put to him that he claimed to have continued to publish in the decade or so between [Writer A’s] death and his own last trip to Australia, and yet the alleged threat was not carried out. In reply, he said that he reduced his writing but did not stop.
I asked [the applicant] about the circumstances of his family. He said he has [specified family members] living in Dhaka where his wife and [children] also live. He said his wife runs a [business] while his [children] attend school. He says they are supported by income from family farmland as well as from the [business] and with money he sends back from Australia. He reported no instances of intimidation of his family apart from the alleged visit by Muslim fundamentalists to his home while he was in Australia in March 2015.
[The applicant] told me that things got worse for him after he published the three articles translated and submitted in evidence: he said “these articles increased” his problems. When I asked for an example of how these articles attracted increased harm, however, he referred to the alleged July 2015 episode when he was allegedly monitored by the two men on the bus. He seemed to have the cause and effect chronologically reversed. He also said he received a telephone call in the first week of July 2015 in which the caller told him he would be next in line to be killed for writing articles against Islam. I asked [the applicant] if he had ever made this claim about the telephone call before, as it appeared he had only ever claimed to the department that he was monitored on the bus one day in late July 2015. In reply, he indicated that he had only told the Department about the day he saw the two men monitoring him. He said they had a copy of a newspaper in which his photograph appeared, perhaps to help them recognise him. I note that [some of the applicant’s] published [articles do] feature a small portrait of him next to his by-line. The three political commentaries do not. [The applicant] did not suggest that he ever reported the early July 2015 telephone threat to the police. He did not suggest that he took any action the better to protect himself and his family from the threat allegedly received over the telephone in early July 2015.
When I put to [the applicant] that his chronology seemed to be inconsistent and that it seemed misleading to say that his August articles caused the negative attention he received in July, he digressed somewhat, saying that he used to be friends with [Writer A] and referring to being an atheist. He then said he had been writing in a weekly periodical in June 2015. He went on to say that he sent back to Dhaka photographs of people dancing in [Country 2], when he was there in early 2015, that these photographs were published in a newspaper, and that fundamentalist elements did not like seeking them as they featured people in relatively scant clothing. I asked [the applicant] what had happened to the publishers of these photographs and he indicated that nothing happened to them because they were not the named authors of the images.

[The applicant] said that the newspapers in which he published the three August 2015 articles are still operating. He indicated that the staff of those newspapers are still working there. He said his editor has not been harmed but lives in a secure house. He initially said that the editor keeps hiding, but when I asked how an editor in hiding gets so many people to contribute to his daily newspaper, he said he had not intended to claim that the editor lived in hiding to say that the editor lives in hiding but, rather, that he pays for security and also pays both sides of politics for political backing. He said he cannot do the same as he is poorer than his editor.
I asked [the applicant] when he applied for his last working visa, the one issued on 20 August 2015, and he said he applied in the first week of August 2015. This indicates that he was commissioned by the newspaper in or prior to this first week of August to go to [Country 1] and Australia to cover the [international story] he covered. All this was evidently organised before the three articles were published.
I asked [the applicant] for more detail about the militants’ visit to his home while he was in Australia in March 2015. He said that the visitors told his wife that if he returned to Bangladesh he would be killed. This struck me as being a quite a different threat from the one originally described to the Department: as noted, [the applicant’s] original claim was that
a group of fanatic Islamic militant[s] visited my house and threatened my wife and asked my wife to [stop] me from doing work with the newspaper. However I [did] not care [about] it and I returned to Bangladesh.
In addition, [the applicant’s] wife claimed, in an undated, purported statement to the police:
They were looking for my husband. They asked me where [is] your husband [name]? … They was mentioning about blogger and crime news. I asked them what the problems are. They said you husband makes us trouble. They said tell your husband to stop reporting about us otherwise we know what to do. They was indicating [a threat upon] my husband[’s and] my life.
Nowhere in these two items of evidence is it suggested that the visitors said that [the applicant] would be killed simply if he returned to Bangladesh. On the written evidence submitted to the Department, all they purportedly wanted him to do was to cease reporting about Islamists killing bloggers. [The applicant’s] evidence about the nature and content of the threat delivered to his wife and reported by her to the police struck me as being somewhat inconsistent.
In addition, whereas [the applicant] first indicated to me that the visiting militants knew he was outside of Bangladesh at the time, he went on to say, “Maybe they didn’t know I was out of the country.” He said this when I questioned the militants seeming effectively to help him avoid them by suggesting that he stay abroad.
I asked [the applicant] why, in such threatening circumstances, he returned to Bangladesh in April 2015, especially since, as he was now saying, just re-entering the country might see him killed. It seemed odd that in his written claims, he had said he did not care enough about the threat to warrant staying away from Bangladesh. In response, [the applicant] said that nobody likes to stay away from family. This did not strike me as a satisfactory explanation in the claimed circumstances. He also went on to say that he was only in Australia on assignment, which implied that he was expected by his employer to return on completion of his duties here; however, this did not stop him from staying here after re-entering Australia “on assignment” in August 2015, so it is hard to comprehend how a death threat in March 2015 did not stop him from trying to seek protection here back then.
[The applicant] gave an additional reason for returning to Bangladesh in April 2015 that struck me as being even more problematic: he said he went back because he thought he would receive help from the authorities. This explanation struck me as problematic because [the applicant] elsewhere claimed, in his evidence and in his articles, that the authorities were tacitly complicit in the harm caused by Islamists due to their inaction. The basis of his protection visa application is a stated disbelief in the capacity of the authorities to protect him. I asked [the applicant] what efforts he undertook, upon return to Bangladesh in April 2015, to obtain police assistance and, in reply, he indicated he sought no assistance at all: he said, “I was hopeful my wife’s report was enough.” This expectation, as put, seemed completely out of character with [the applicant’s] other claims about the police.
I put to [the applicant] that his behaviour after his return to Bangladesh in April 2015 appeared to be inconsistent with what he claimed to have been his mode of operations after the alleged death threat in 2008, making it harder to believe his claims about such threats: whereas he claimed the 2008 threat caused him to reduce his written output, he seemed to have intensified the latter in 2015, going by the publication of the commentary pieces in August 2015. When I put to him that I was wondering if I could rely on there having been any threats against him in 2015 at all, he said, “I thought the police and legal system would save me.” It struck me as being incongruous that [the applicant] would have this view, at the time of publishing his commentary pieces in August 2015, having receiving no assistance from the police after he was purportedly followed in July 2015. I put to him that it was hard to believe he was relying at the time on the police and legal system as the shortcomings displayed by these institutions were the subject of his critiques in the published commentaries. In reply, he said that it is usual for citizens to depend on the police and that this was why he did. Then he seemed to contradict this position about placing reliance in the authorities, saying that he wrote against the police in the August 2015 pieces because they do not protect free-thinkers. Late in the hearing he said, as noted earlier, “police are against journalists”. In this light, it seemed all the more implausible that [the applicant] returned to Bangladesh in April 2015, defying a death threat, trustful of the police’s readiness to assist and protect him.
I put to [the applicant] that according to DFAT (see below) only high-profile non-believers face a real chance of serious harm in Bangladesh. According to the evidence before me, he had written a few articles in 2015 criticising the government and police response to a series of killings of journalists over the years, but he had not published any personal views about religion. In reply, [the applicant] said that for a long time he had been linked in the minds of Islamic militants with [Writer A] who had been the foremost free-thinker in Bangladesh. He said this was why he was a target of Islamist militants. He referred me to the existence of a recent report from the International Humanist and Ethical Union (IHEU) in London which, he said, describes atheists as an endangered class of persons in Bangladesh.
Independent country information
I have had regard to the most recent Country Information Report: Bangladesh from DFAT[4]:
[4] 2 February 2018
Blasphemy/ Defamation of Religion
3.24 Chapter XV of the Penal Code (‘Of Offences Relating to Religion’) provides for penalties of up to two years’ imprisonment for statements or acts that demonstrate a ‘deliberate and malicious’ intent to insult religious sentiments. Although the code does not define ‘intent to insult religious sentiments’, Bangladeshi courts have generally interpreted it to include insulting the Prophet Mohammed. The Criminal Code allows the government to confiscate all copies of any newspaper, magazine, or other publication containing language that ‘creates enmity and hatred among the citizens or denigrates religious beliefs’. The Information and Communication Technology (ICT) Act (2006) (see Media) applies similar restrictions to online publications, and was amended in 2013 to further criminalise defamation of religion.
3.25 Islamist organisations have consistently used the pejorative label ‘atheist’ against individuals who have publicly criticised Islamic fundamentalism or have questioned the role of Islam in the state, including those advocating for secular values. The government has periodically used the blasphemy laws against such individuals, often following complaints from Islamist organisations.
 In April 2013, authorities arrested and charged four bloggers who had posted comments calling for a ban of JI. All four bloggers spent significant time in prison and on trial throughout 2013 and 2014, and have subsequently withdrawn from public life. The arrests followed street protests by an estimated 100,000 Islamist demonstrators in Dhaka who demanded amendments to blasphemy laws to include the use of the death penalty;
 In March 2014, authorities arrested and imprisoned two teenaged bloggers for Facebook posts deemed insulting to Islam and the Prophet Mohammed. Fellow bloggers have alleged that an Islamist student organisation distributed false material to incite violence against the bloggers, leading to their arrest;
 The government dismissed and subsequently arrested a Cabinet minister in September 2014 after he made remarks deemed critical of the hajj (Islamic pilgrimage to Mecca) at a discussion in New York. After the minister’s remarks were broadcast, Islamist groups issued a 24-hour deadline for the government to arrest him upon his return to Bangladesh, and more than 20 blasphemy cases were filed against him;
 In February 2016, police arrested a publisher at an international book fair in Dhaka and charged him under the ICT Act with criticising religion. Islamists had threatened violence if he was not detained for disseminating publications they considered disrespectful of Islam. The publisher faces up to 14 years’ imprisonment if found guilty.
3.26 In addition to official sanction, individuals who have publicly criticised Islamic fundamentalism or have criticised the role of Islam in the state have faced significant societal pressure in the form of threats and violence from Islamist militant organisations. In February 2013, a blogger who had criticised Islamic fundamentalism was hacked to death outside his home in Dhaka. Two students were subsequently sentenced to death for the attack (one in absentia); while a Muslim cleric who had preached that it was legal to kill atheist bloggers who campaigned against Islam received a five-year sentence for abetting the murder.
3.27 In April 2013, Islamist groups published a ‘hit-list’ of 84 bloggers whose writings were deemed to be ‘un-Islamic’. Four bloggers whose names were on the list were hacked to death in separate machete attacks in Dhaka and Sylhet in 2015, along with another blogger in Dhaka in April 2016. Many of the other bloggers, writers, and publishers on the list went into hiding or exile due to concerns over the absence of, or inadequacy of, state protection. A further murder occurred in April 2016 of a university professor in Rajshahi who was involved in cultural activities that hard-line Islamist groups condemned as ‘un-Islamic’.
3.28 As noted in Security Situation, Bangladeshi authorities conducted extensive counter-terrorism operations in response to the wave of militant attacks, including arresting a number of militants connected with the attacks. While condemning the threats and acts of violence, however, the government has tended to attribute blame for militant attacks upon the victims for criticising religion. Following the 2015 attacks, for example, the Home Minister stated that bloggers should be careful not to write anything that might hurt any religion, beliefs and religious leaders, while the Prime Minister stated it was unacceptable for anyone to write against the Prophet or other religions.
3.29 DFAT assesses that this stance reflects domestic political considerations, with the government attempting to balance the interests of its traditional secular support base with those of Islamist groups. DFAT assesses that those accused of blasphemy or defamation of religion by Islamist organisations are likely to face legal sanction, including imprisonment. High profile anti-Islamist bloggers face a high risk of societal discrimination in the form of threats and physical violence, with limited access to state protection.
I located a IHEU article which describes the recent murder of a secular activist in Bangladesh:[5]
Shahzahan Bachchu was known locally and within the secular Bangladeshi movement as an outspoken, sometimes fiery activist for secularism. He printed poetry and books related to humanism and freethought via his publishing house Bishaka Prakashani (Star Publishers). He was also a political activist, serving as former general secretary of Munshiganj district unit of the Communist Party…
[Earlier threats against Shahzahan] came in the context of several earlier attacks, sometimes fatal, on humanists and freethinkers in Bangladesh, which IHEU has reported and campaigned on extensively. As detailed in the IHEU Freedom of Thought Report chapter on Bangladesh, these attacks included in 2015 alone the murders of Avijit Roy, Washiqur Rahman, Ananto Bijoy Das, and Shahzahan’s friend Niloy Neel days before the threats to Shahzahan were published.
Today’s murder of Shahzahan Bachchu is not even the first attack on secular publishers in the country. At the end of October 2015, there were two further coordinated attacks, this time on freethinking publishing houses in Dhaka. These attacks left publisher Faysal Arefin Dipon dead and publisher Ahmed Rashid Tutul seriously injured. Tutul has since left the country.
Other targets have included secular activists and LGBT publishers.
Various government official including the prime minister Sheikh Hasina have blamed the attacks on atheists criticizing religion, and threatened prosecution under the ICT Act, which criminalizes “hurting religious sentiments”. IHEU has consistently called on the Bangladesh government to stop blaming the victims and to bring the perpetrators of the murders to justice.
[5] “Freethinking writer and politician shot dead in Bangladesh,” IHEU, 11 June 2018,
I located and read in its entirety the latest IHEU Freedom of Thought Report chapter on Bangladesh.[6]
[6]
Findings in relation to s.36(2)(a) of the Act
[The applicant] claims fear of being persecuted for reasons of being an atheist, secularist, free-thinker who is also a prominent photojournalist with a reputation for having been friends with [Writer A]. His claims relate to the relevant factors of “religion”, to “membership of a particular social group” and to actual and imputed “political opinion”.
I accept that [the applicant] is a [photojournalist] who had a friendship with [Writer A]. I accept that he wrote three commentary pieces about blogger killings, etc., that were published by a prominent daily newspaper in Bangladesh in August 2015. I note that all three articles are critical of the government and the police in Bangladesh for their poor response to the killings of high-profile bloggers, anti-Islamists and government critics in that country. I find that articles like these were and are commonly published in Bangladeshi newspapers by editors and journalists who continue to work unharmed, [the applicant’s] own (former) editor being one of these. Whereas I can accept that [the applicant’s] (former) editor may live in a secure house and may employ security personnel, I do not accept that this is indicative of a real chance of [the applicant] being persecuted for want of the ability to arrange his life in this way: his family continues to live in Dhaka evidently unharassed and unharmed; since he last came to Australia after writing the articles discussed, there have evidently been no threatening messages passed to or through his wife or anyone else.
I do accept that some high-profile pro-secular, anti-Islamist bloggers and journalists, characterised or self-proclaimed as free-thinkers and/or atheists have been killed in Bangladesh in recent years, evidently by non-state militant Islamist agents with at least tacit support of the government and the authorities there. I accept that this situation has put editors and journalists under some stress in Bangladesh. I accept that some have been targeted in assaults and others have been arrested on questionable charges. However, I note and give weight to the fact that many journalists continue to write and publish articles like the three that [the applicant] wrote in August 2015 and have not evidently been harmed for doing so. I find that whereas [the applicant] might continue in Bangladesh to write commentary pieces like the three discussed in evidence here, but I am not satisfied on the evidence before me that this would give rise to a real risk of his being persecuted there in the reasonably foreseeable future.
I am not satisfied that [the applicant’s] past friendship with and receipt of gifts from [Writer A], or his ongoing contact with [his] family, give rise separately or cumulatively to a real chance of being persecuted in Bangladesh in the reasonably foreseeable future. In particular, I do not accept that he was threatened with death by anyone in 2008. This is partly due to the lack of consistency and credibility in the facts surrounding this particular threat, as [the applicant] alleges he was told to stop writing altogether in 2008 or be killed, but purportedly defied the threat by continuing to write, and yet he evidently faced no harm in the decade or so that followed. Whereas one might form the view that the threat might actually have been made but just not carried out, I have had regard to unsatisfactory evidence [the applicant] gave about the March 2015 threat and find that the claim about the 2008 threat is a concoction.
Ultimately, I find all of [the applicant’s] claims about contact and confrontations with Islamist militants inconsistent and unreliable, and this finding also extends to his claims about being followed by two suspicious men in July 2015. I do not accept that claim partly due to [the applicant’s] confused chronology suggesting he was being followed in July 2015 due to what he published in August 2015, and partly due to my not being able to believe his unsupported and, I find, improvised claim about having written similar articles in June 2015. In addition, [the applicant] has been seriously inconsistent as to what the content of the threats were, as to why he risked returning to Bangladesh when he did and as to why he took no action to protect himself upon returning to Bangladesh. He gave inconsistent and ultimately unsatisfactory reasons for not seeking police assistance are so inconsistent with the position that any threats were ever made against him. [The applicant’s] own evidence about the circumstances surrounding the alleged March 2015 episode leaves me with the confident impression that the episode did not occur. His position, however, is that his wife’s purportedly contemporaneous report to the police is strong evidence to the effect that in March 2015 she did hear the threats. The document he presented is a photocopy of a typed letter with a signed and numbered stamp on it. Overall, it is hard to give this document any weight on its own, and it does not help overcome the deficiencies in [the applicant’s] evidence as to why he did not take it seriously (“However I [did] not care [about] it and I returned to Bangladesh”) and as to why, through his actions and inaction, he proceeded to live in Bangladesh as though the threat had never been made in the first place. Even if the purported police report was actually filed by the police as claimed, that in itself does not mean that the report is truthful. In light of [the applicant’s] lack of consistency and reliability as a witness on the subject of the threats he claims to have received, I give no weight to the purported police report.

I do not accept that [the applicant] wrote, or had any personal interest in writing outside of the field of [his specialty] prior to producing the three articles that were evidently published in August 2015. In fact I am not satisfied that he became actively interested in politics by writing articles and joining the demonstration against the arrest of the journalists [named] until August 2018, shortly after he last applied for a visa to come to Australia. This means that I do not accept that he ever wrote articles of potentially significant offence to Islamists, even over the decade or so after making the acquaintance of [Writer A]. As to the three commentary pieces that he did eventually write, I do not accept, for reasons given, that he wrote them in defiance of any potentially relevant threats from anyone. Again, I am not satisfied on the evidence before me that writing and publishing articles like the three submitted put [the applicant] in the position of facing a real chance of being persecuted by Islamists or anyone else in Bangladesh in the reasonably foreseeable future. In coming to this finding, as discussed earlier, I give some weight to the evidence of [the applicant] having left his wife at home in Dhaka and of her and their [children] evidently just getting on with their day-to-day lives without evident harassment, let alone of the kind described in relation to the alleged March 2015 threat. There is no suggestion in the evidence before me of any reprisals in response to those articles.
Although the three August 2015 articles comment on violent actions attributed to Islamists, I am not satisfied that they support [the applicant’s] claim to be a known, let alone high-profile secularist, atheist and free-thinker, even though they refer to such people having been innocent victims of Islamist violence. On the evidence before me, I do not accept that [the applicant] is or has any genuine interest in being a high-profile secularist, atheist or free-thinker, or that he would be perceived as one in Bangladesh, notwithstanding the three articles published in August 2015. I am not satisfied on the evidence before me that he faces a real chance of being persecuted in Bangladesh in the reasonably foreseeable future for the separate or cumulative reason of being secularist, atheist or a free-thinker. I find that he will not engage in activities in Bangladesh to disseminate his own secular, atheist and free-thinking beliefs simply for the reason that he is not interested in doing so.[7]
[7] Ref: Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003,
There is no suggestion that [the applicant’s] coverage of [his specialty] has attracted harm or gives rise to a real chance of his being persecuted. Although [the applicant] claims the Bangladeshi “police are against journalists” and has sought to support this claim with photographs of the demonstration he attended, along with various articles about the lack of action on the part police to the killing of bloggers and the like, I am not satisfied that [the applicant’s] profession as a journalist or photojournalist per se gives rise to a real chance of his being persecuted in Bangladesh in the reasonably foreseeable future. I am also not satisfied on the evidence before me that he faces a real chance of persecution in Bangladesh in the reasonably foreseeable future for the separate or cumulative reason of having had photographs of people dancing in [Country 2] published in a Bangladeshi newspaper.
As noted, I find that [the applicant] has engaged in journalistic activities in Australia in good faith, consistent with his career skills practiced back in Bangladesh, hence my finding no reason to disregard these activities under s.5J(6) of the Act. However, I am not satisfied on the evidence before me that he faces a real chance of being persecuted in Bangladesh in the reasonably foreseeable future for separate or cumulative reasons of his activities, including those as a photographer and journalist, in Australia.
Overall I am not satisfied that [the applicant] faces a real chance of being persecuted in Bangladesh in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of "significant harm" require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment" does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment" does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Essentially, [the applicant’s] complementary protection claims rely on the same facts as his refugee claims which have ultimately failed for want of credibility and for not meeting the "real chance" test. In view of my findings of fact , above, and in view of the "real risk" test being the same as the "real chance" test, those claims must also fail here.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

[2018] AATA 5072

23 October 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction