1610597 (Refugee)

1610597 (Refugee) [2019] AATA 4384 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610597
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Melissa McAdam
DATE:29 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 29 March 2019 at 1:41pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – applicant fears harm in home country from ex-husband and his family – domestic violence claims – divorce – young family – women in Bangladesh – children born out of wedlock – credibility issues – no risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) 5, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Bangladesh, applied for the visas on 23 November 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The first named applicant is the mother of the other two applicants, who are minor children.
The first named applicant presented the protection claims in the application. The following is a summary of the claims and information provided by her in the Protection visa application:
a.She was born on [date] in Dhaka, Bangladesh. She submitted her Bangladeshi passport issued in [Australia] in February 2015.
b.She lived in Dhaka when she was in Bangladesh. She is Bengali and a Sunni Muslim. She is married and is also in a de facto relationship which began in [City 1] in June 2011. Her parents are deceased.
c.She first came to Australia in 2007 on a [temporary] visa. She has returned to Bangladesh twice since coming to Australia, in [year] and in [year].
d.She did not face any harm in Bangladesh.
e.She married her husband, [Mr A], in May 2007 and came to Australia with him [in] December 2007.
f.In Australia her husband abused her physically and mentally. He forced her to get money from her family. Her family is not rich.
g.Her husband also had a lot of girlfriends and neglected her. If she asked him any questions he abused her physically and called her filthy words.
h.During that time she met her current partner, [Mr B], who was a tenant in the house. He would save her when her husband beat her
i.She liked [Mr B] and their relationship formed in 2011. From the relationship they have two children.
j.She fears she will be harmed by her husband and his family if she returns to Bangladesh. She fears that society and her family will consider her morally corrupt and will target her to protect their honour.
k.She fears her children will be vulnerable to targeting because they were born out of wedlock.
l.She will not get protection because the police will consider it a domestic issue.
m.In all parts of Bangladesh she and her children will be at risk because she will be identified as a morally corrupt female.
n.She does not know where her husband currently is.
o.The second named applicant was born in [City 1] on [date]. A copy of his Bangladeshi passport, issued in [Australia] in February 2015, was submitted. A copy of his [Birth] Certificate was also submitted.
p.The third named applicant was born in [City 1] on [date]. A copy of her [Birth] Certificate was submitted.
Agent’s Submission, 18 April 2016
On 18 April 2016 the applicants’ Agent made written submissions to the Department, containing country information regarding domestic violence and related issues in Bangladesh. The agent submitted that the first named applicant feared harm in Bangladesh as a member of the following particular social groups:
·Women in Bangladesh;
·Bangladeshi female facing honour killing or assault;
·Bangladeshi females in a relationship outside the accepted norms of ultra-conservative Bangladesh society; and
·Bangladeshi women who face family and social violence.
Departmental Interview, 26 April 2018
The following is a summary of the claims and information provided by the first named applicant in her Departmental Interview:
a.She married her husband [in] May 2007. Their relationship ended in 2011. They are separated, not divorced. She last saw him probably in 2011. In 2012 she saw him because he came to ask for money. She was living with [Mr B] then.
b.She has no other relatives in Australia.
c.She has no family in Bangladesh. Her father has passed away. She has had no contact with her mother for three and a half years. Her family did not accept her living with [Mr B]. She tried to contact her mother but her mother would not answer her calls.
d.She has [a] brother. She has no contact with him. He moved to another country, maybe [Country 1].
e.She met her husband through the family. It was an arranged marriage. Her grandmother arranged it. Her house was near her husband’s family’s house. He has [sisters]. She does not know if his parents are still alive.
f.Her problems began after she and her husband came to Australia. He would get drunk and would then speak in a very loud voice. He had a gambling problem and if he lost money he would raise his hands to her. He became intolerant of her. He started gambling in 2008 or 2009 maybe. He gambled in [Suburb 1] on poker machines. He would hit her.
g.Her father passed away. Her family’s financial situation is not great. She told her mother her husband was beating her and her mother would say just look at the ground and don’t react. Her mother did not support her.
h.She met [Mr B] because they both took the train to her work in the city. He moved into a vacant room in her and her husband’s house in 2011. This was in [Street 1], [Suburb 1]. She had lived there since 2008. It was a house. [A number of] families lived there. When her husband raised his hands and screamed at her, her husband would tell the other people at the house not to interfere. Only [Mr B] would support her.
i.Her husband would go away for a few days and not leave her money for food or anything. [Mr B] would help her then. Most of the time [Mr B] was at work. If he was there when her husband beat her he could not do anything because the door was locked from inside.
j.She separated from her husband and he left the house when he found out about her relationship with [Mr B], in 2011.
k.She has not divorced her husband because she does not have enough money. She does not know if she can divorce in the mosque.
l.In the future she may marry [Mr B], but she has no plans to marry him yet. He wants to marry her.
m.She and [Mr B] are on bridging visas and not allowed to work. They receive help from [a charity].
n.She fears her husband in Bangladesh and her husband’s family. Her husband’s father is a prominent person in the area. She is not sure of the name of her husband’s village.
o.She has nowhere to live in Bangladesh. She has two children and they won’t get a proper education in Bangladesh.
Department’s Letter to the Applicants, [In] May 2016
The Department delegate wrote to the applicants stating that, according to its records, between the dates [day]/11/2015 and [day]/04/2016 the first named applicant was residing at an address in [Suburb 2]; that her husband has resided at the same address since [day]/06/2013; and that the applicant’s de facto partner stated that this has also been his address since [day]/11/2015. The delegate stated that this indicates her de facto is currently living with her husband.
The delegate also stated that, contrary to her statement that her last contact with her husband was in 2012, the Department’s records show that the first named applicant used her husband’s email address and phone number from [day] April 2008 until [day] November 2015.
The delegate also stated that the Department’s records show that at the time the first named applicant had claimed her de facto partner was living in her and her husband’s house in [Suburb 1], her de facto partner was living at a [Suburb 3] residence, up until 2015.
First named applicant’s response, 27 May 2016
The first named applicant provided a Statutory Declaration to the delegate on 27 May 2016. The information in the Statutory Declaration is summarised as follows:
a.She confirmed she did not see her husband after 2012, and has no idea where he is staying.
b.She does not know why her husband provided her address as his address.
c.Her husband is very cruel and doesn’t want her to live peacefully.
d.She did not have any dealings with the Department from 2012 so she could not have provided her ex-husband’s email and phone number as hers.
e.She only contacted the Department in 2015 when she applied for a Protection visa, and provided her current husband’s email and phone number.
f.Her current husband was illegal in Australia until the Protection visa application was lodged and he was granted a Bridging visa. He did not approach the Department till 2015 to update his address because he was scared to approach the Department.
Delegate’s Decision
The Delegate found the first named applicant’s claims were not credible.
Information to the Tribunal
Tribunal Hearing, 19 September 2018
The applicants appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. Only the first named applicant gave evidence at the hearing. The Tribunal also received oral evidence from the applicant’s partner, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The following is a summary of the information provided by the first named applicant at the hearing:
a.She confirmed that all the information in her Protection visa application is correct.
b.She no longer has any family in Bangladesh. Her father passed away and she has had no contact with her mother for more than five years. She has no contact with her family so she doesn’t know where they are. Her mother was living in [City 2] when the applicant last had contact with her. Her only brother went to [Country 1] and she has no contact with him.
c.She does not want to return to Bangladesh because she has no family member or relative or home so where would she go or live and who will support her children.
d.Her previous husband, [Mr A], was a mad person and threatened her in many ways. His father is an [senior official]. [Mr A] lives in Australia. Many times he has threatened he will harm her.
e.She does not want to return to Bangladesh because she has nowhere to live there and because [Mr A] has threatened he will harm her if she returns. His parents are in Bangladesh and his father is powerful. She does not know where they live. If they get information they might harm her and her children. She does not know why they would do that, but everything is possible in Bangladesh. Their son returned to the country before and didn’t make any contact with them and they think she is the reason for that.
f.She has had no contact with her ex-husband’s parents. She knew they lived in [Town 1] when she and her ex-husband married. She has heard they do not live there anymore. She does not know if they are still in Bangladesh.
g.After her separation she called [Mr A] because she needed an address and she learned his parents were not living at their old address. She spoke to [Mr A] by telephone about one month ago and he told her this. She told him she wanted to send a divorce letter and needed his email or home address and he told her no one lives at the home address.
h.She does not know where [Mr A] was living when she spoke to him. She didn’t know his email address or residential address in Australia so she called him. He said he will discuss the matter with his lawyer. She does not know who his lawyer is. In the beginning she tried many times to contact [Mr A] on his phone number. Finally she got connected. But now she cannot contact him on the number. In October her lawyer will start the divorce process. She will submit documents regarding the divorce application to the Tribunal. She will also submit a copy of her Marriage Certificate to the Tribunal.
i.She did not return to Bangladesh when [Mr A] became violent because she did not know where to go. Her family did not have much money. Her father was a [medical] patient and a lot of money was needed for his treatment. If she had gone back to Bangladesh she would have been a burden on her family.
j.She started having problems with [Mr A] a few days after she arrived in Australia in 2008 or 2009. They separated in 2011.
k.She met [Mr B] on a train. They both would travel in the same train to the city. He also lived in a room in their house. She first met him on a train, then some time later she went to Bangladesh. When she returned she didn’t know that he had rented a room in the house where she lived while she was away. It was shared accommodation with [other] families. [Mr B] moved in to her house in 2011 in February or March while she was still in Bangladesh.
l.She just saw [Mr B] on the train but never spoke to him. She saw him on the train frequently when they finished work at night. He caught the train at [Station 1]. She caught the train at [Station 1] or [Station 2]. She travelled to [Suburb 1]. She does not know where [Mr B] travelled to. She does not know where [Mr B] worked. There were many people on the train but she saw his face each day.
m.Her husband would abuse her in the house. The other families in the house did not support her or say a word. [Mr B] was the only one who supported her. In the beginning [Mr B] didn’t say anything, but afterwards he started supporting her. When her husband abused her she would cry. Her husband would be absent for weeks and she would have to manage the rent money and bills. [Mr B] helped her financially. He also provided moral support. He was a shoulder to cry on.
n.[Mr B] and the applicant’s relationship developed gradually. [Mr A] would leave her for weeks and there wasn’t anybody to talk to. She could trust [Mr B]. They started having romantic feelings for each other in 2011. She can’t remember when this was in 2011.
o.Her husband had a bad gambling addiction. About two months after she returned from Bangladesh in 2011 her husband started leaving the house. He may have discovered the relationship between the applicant and [Mr B]. Their relationship had started by then. She and [Mr B] had been in a relationship for six or seven months when her husband moved out of the home. Her husband had found out about the relationship. He heard about it from the other families in the house. He told her this. Her husband left her at the end of 2011.
p.She and [Mr B] are not married. It has taken her many months to try to get a divorce because she was reluctant to approach services and she did not have her husband’s address. She did not have a visa and was worried a divorce would cause her trouble.
q.[Mr B] is from Bangladesh. She is not sure where in Bangladesh, maybe [District 1]. She does not have much knowledge about him. Although she has been with him for seven years he has not told her where he is from. She kept asking him and he said his village is [in District 1]. His date of birth is [date]. He is Muslim.
r.Under s.424AA of the Act the Tribunal put to the applicant the information that her ex-husband had given the applicants’ address as his own address to the Department in 2015. The first named applicant asked for further time to respond or comment in writing, which the Tribunal agreed to.
s.The Tribunal asked the first named applicant why she, [Mr B] and her children did not return to Bangladesh together. The applicant responded where would they stay, and that her children were born here so what would they do in Bangladesh. She and [Mr B] are grown up and could live in Bangladesh but her children would not know what to do or how to speak the language. Her children have no future in Bangladesh. Her son always says Australia is his country.
t.The Tribunal put to the her that there was a section 437 certificate on the Department’s file regarding identity tests and records of contact details which she could comment upon if she wished. She responded okay without further comment.
u.The Tribunal put to the first named applicant that her children’s official birth certificates stated that she and [Mr B] are married. She responded that she just wrote this in the application form because it would not look nice otherwise.
v.The Tribunal put to the first named applicant that as she has had little contact with her ex-husband, this might suggest he is not a threat to her. She responded that her focus is upon her children, she doesn’t think about herself. Bangladesh is very socially conservative. Because she has a broken marriage and is now with [Mr B] and they have children but are not married, society will not accept them.
w.She and [Mr B] plan to marry after she has divorced her husband.

The following is a summary of the information provided by the witness, [Mr B], at the hearing:
a.He and the first named applicant met in the beginning of 2011 in the train station at [Station 2] and [Station 1]. They would just see each other but never talk. He was working as a [Occupation 1] in [a location]. He would catch the train to [Suburb 1]. He lived in [Street 1] then with a couple of other people including [Mr A]. He lived there for three or four years. The first named applicant was living there before he started to live there.
b.Before that he lived in [Street 2] in [Suburb 1]. He moved there many years ago. Before [Street 2] he lived in [Suburb 3] but forgets the address. First he lived in [Suburb 3], then [Street 2], then [Street 1].
c.He moved into [Street 1] in March or April 2011. He lived there for 3 or 4 years then he moved to [Street 4], [Suburb 2]. Now he lives at [Street 5], [Suburb 4]. He didn’t tell the department he was living in [Street 1] because he was scared.
d.He lived in [Street 2], [Suburb 1] in 2006 for three or four years. Another person also lived there. [Mr A] did not live there. The Tribunal put to the witness that department records stated that [Mr A] did live in [Street 2], [Suburb 1]. He responded that maybe it was a different address.
e.He can’t remember when [Mr A] moved out of [Street 1]. It may have been 2011. [Mr A] left because his relationship with the first named applicant was not going well. There was domestic violence and so many things.
f.He and the first named applicant started their relationship in the beginning of 2011. Their relationship started a bit before he moved into her house.
g.[Mr A] came to the house in 2012 but [Mr B] did not see him then.
h.With two children he has a hard time and back pain. It is stressing him a lot.
The following is a summary of further information provided by the first named applicant at the hearing:
a.The Tribunal put to the first named applicant under s.424AAof the Act that Departmental records stated that her ex-husband lived at [Street 2], [Suburb 1] in December 2007. She responded that she lived in [Street 1], [Suburb 1] and had never been to [Street 2]. She does not know if her husband lived in [Suburb 3] there before she arrived in Australia.
b.The Tribunal put to the first named applicant under s.424AA that the witness, [Mr B], had said their relationship started before he moved into her house, in contradiction to her own testimony. She responded that maybe he liked her in his mind.
Post-Hearing Submissions
On 8 October 2018 the first named applicant submitted a further written statement to the Tribunal. The following is a summary of the statement.
a.She did not see her ex-husband after 2012. She has no idea where he is staying. She notes he provided her address which is wrong. She has no idea why he provided her address as his. She has mentioned that he is very cruel mentally and never wanted her to live peacefully. He tortures her mentally. He is a liar and a cheater.
b.She did not have any dealings with the Department since 2012 after her separation.
c.She and her current husband [Mr B] were too scared to approach the Department. They only contacted the Department in 2015 after they applied for a Protection visa and she provided her husband’s email and phone number. Her husband was staying in Australia illegally until they lodged her Protection visa application and he was granted a Bridging visa. He did not approach the Department to update his address until 2015 because he was scared to do so without a visa.
d.She then set out a series of questions:
i.What is the document or form the Tribunal relies upon to state that her ex-husband provided an address similar to her address;
ii.Did he mention or include her name in the application;
iii.Did she sign the document;
iv.Is there any information that she has provided any information to the department confirming she was living with her ex-husband;
v.Did her ex-husband provide any evidence to confirm he was living at the addresses such as a bank statement or utility bill.
[In] January 2019 the first named applicant submitted a copy of her application for a divorce from ‘[Mr A]’, filed in the Federal Circuit in [a certain location] [in] January 2019.
On or about 24 January 2019 the Tribunal received copies of several of the first named applicant’s ex-husband’s onshore visa applications. The Tribunal then wrote to the applicants under s.424A of the Act on 6 February 2019, as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decisions under review. Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
The Tribunal has recently obtained copies of several of Ms [C’s] ex husband’s ([Mr A]) onshore visa applications in Australia.
Issue 1
In his [temporary] visa application lodged [in] December 2011 Mr [A] stated that he is “married”, his wife’s name is “[Ms C]”, and that his residential address is “[Street 1] , [Suburb 1], [Australian State], [Postcode 1]”. He also states that his wife, [Ms C], is included in his visa application. The form is signed by Mr [A] and a signature which reads “[Ms C]” also appears. Both signatures are dated “[day]/12/2011”.
This information is relevant to the review because it indicates Mr [A] was still living at the same address as Ms [C] and considered they were both still in a marriage relationship in late December 2011. This information casts doubt on the evidence provided by Ms [C] at hearing that her husband moved out of the [Street 1], [Suburb 1] home about two months after Ms [C] returned from Bangladesh and that they were separated then.
If the Tribunal relies on this information in making its decision, it may find that Ms [C]’s evidence about the breakdown of her marriage at the time is not reliable.
Issue 2
In Mr [A]’s [temporary] visa application lodged [in] June 2013 he stated that his relationship status is “separated” and that his residential address is “[Street 4] [Suburb 2], [Australian State], [Postcode 2]”. Attached to the file are letters dated [in] June 2013 and [in] September 2013 from Mr [A]’s employer, and a letter from [an organisation] dated [in] July 2013 which each state his address to be “[Street 4] [Suburb 2], [Australian State], [Postcode 2]”.
This information is relevant to the review because it indicates Mr [A] lived at the same address provided by Ms [C] as her residential address in her updated information to the Department in November 2015. This information casts doubt on the evidence provided by Ms [C] at hearing that she did not live with her husband after they separated in 2011.
If the Tribunal relies on this information in making its decision, it may find that Ms [C]continued to reside with her ex-husband after their separation and that her claims he was abusive to her are not reliable.
On 20 February 2019 the first named applicant provided the following written response:
My response to Concern 1
I deny that I lived with him in late December 2011 and was in a relationship with my ex-husband. I am not sure how he got my signature because as far as I knew I had no relationship with him after I separated from him. I request the Tribunal to send me the copy of the signature page for me to initially check whether it was my signature. In addition, in the best interest and to facilitate the AAT to provide equitable and fair justice, I request the Tribunal to conduct a forensic examination of the signature to find out whether it was my signature.
My response to Concern 2
I request the Tribunal to clarify whether the address he had given whether he mentioned it as a residential or a postal address. The reason is, any one give any other address as their residential address and direct all their correspondence to a different postal address. I also request the Tribunal to advise me whether there was any evidence to confirm that the DOHA had send any correspondence to [Street 4] [Suburb 2], [Australian State] [Postcode 2] address.
I request the Tribunal to confirm whether it has got any information to confirm that the [organisation] and his employer posted any letters to the above address during the time. the reason I am asking these information is:
Any one give another person’s address without the knowledge of the person who actually lived in that address and then have PO box or a different postal address to receive all the letters in the PO box or to the postal address. I request the Tribunal to advise me whether he provided any alternative address for correspondence including the PO box address. I also request the Tribunal to confirm whether the Tribunal has information that my ex-husband did not provide any other addresses as postal address.
On 7 March 2019 the Tribunal wrote to the first named applicant, attaching a copy of the signature page of the her ex-husband’s 2011 [temporary] visa application, and advising as follows:
-That the Tribunal did not consider it necessary to obtain a forensic examination of the signature which appears on the page.
-That the address “[Street 4] [Suburb 2], [Australian State], [Postcode 2]” was provided by her ex-husband in answer to the question “Residential Address Details”.
-That the Tribunal has no information as to whether letters were posted to her ex-husband by [the organisation] or his ex-employer.
-That her ex-husband provided his Migration Agent’s address for receiving communication from the Department.
-That if the applicants wished to comment on any of the above they should provide comments in writing to the Tribunal by 21 March 2019.
On 21 March 2019 the first named applicant provided the following response to the Tribunal:
She stated that the signature that appears on her ex-husband’s [temporary] visa application was not her signature and that it does not correspond with her signature, a sample of which appears on her Protection visa application.
Her ex-husband forged her signature which shows his cruel mentality and manipulation and his intention to take revenge upon her.
Her ex-husband would therefore go to any extent to do anything to her in Bangladesh. He may use private detectives in Bangladesh to trace the applicants to take revenge against her.
She did not sign any documents in relation to her ex-husband’s [temporary] visa application and she did not receive any letters under his name from his ex-employer.
Her children may become street children and be exposed to various abuses including sexual abuse in Bangladesh.
Other information
DFAT’s February 2018 country information report in Bangladesh contains the following:
Women
Article 28 (2) of the Constitution states that women shall have equal rights with men in all spheres of the State and of public life, and numerous additional constitutional provisions prohibit discrimination on the grounds of sex. There are considerable legal protections for women in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. Many women now occupy positions in the civil service, judiciary, police, military, and local government institutions. While the participation of women in the workforce remains low compared to that of men, the emergence of the ready-made garment industry has provided a means of economic empowerment for large numbers of lower-income Bangladeshi women (although they are among the country’s most vulnerable workers). Women occupy 20 per cent of the seats in Parliament. Bangladesh has had two female Prime Ministers, including the incumbent, although this is not representative of the position of women in Bangladeshi society more generally.
While women participate in all areas of Bangladeshi society, long-standing societal, cultural and religious attitudes continue to place limits on the extent of that participation….. As noted in Personal Status Laws, laws relating to family (including marriage, divorce and inheritance) derive from religious tradition, which tends to disadvantage women. Religious leaders in rural areas sometimes impose flogging and other extrajudicial punishments on women accused of violating strict moral codes, but do not impose these punishments on men.
Despite legal prohibitions, rape, sexual harassment and other forms of gender-based violence against women occur frequently. Human rights NGO Odhikar documented 757 rape cases in 2016 and 783 in 2017. These figures likely understate actual occurrence. Rape within marriage is not a crime. According to the US State Department, the prosecution of rapists is weak and inconsistent, which supports a culture of impunity and encourages further criminal acts by those who escape legal consequence for their crimes. NGOs report that a high-percentage of rapes and attempted rapes involve girls aged between seven and 12 years of age, and many rape victims subsequently commit suicide.
Domestic violence is widespread. The Domestic Violence (Prevention and Protection) Act (2010) criminalises domestic violence. It provides for a punishment of up to six months’ imprisonment for a first offence or two years’ imprisonment for repeated offences. The law is not, however, effectively enforced. According to a survey conducted by the Bangladesh Bureau of Statistics in 2015, almost two-thirds of ever-married women had experienced one or more forms of violence (physical, sexual, economic, emotional or controlling behaviour) by their husband at least once in their lifetime, and 54.7 per cent had experienced violence during the last 12 months. Most women who had experienced partner violence (72.7 per cent) never reported their experience to others, with reasons for non-action including lack of access to social services, concern about family honour, fear of the perpetrator, and shame or embarrassment.
While the government operates a confidential helpline for reporting abuse, very few Bangladeshi women are aware of the service. Local NGOs claim the number of women’s shelters and legal aid services nationwide remain inadequate compared to the need. Existing shelters rely heavily on project funding, leading to questions over sustainability. NGOs report that indigenous women in remote areas of the CHT are particularly vulnerable to violence and sexual assault, and are less likely to be able to access government services than women residing elsewhere in the country.
A 2009 High Court guideline prohibits sexual harassment, known euphemistically as ‘Eve-teasing’, in private and public, including in educational institutions and workplaces. The Bangladesh National Women Lawyers’ Association reported in June 2016 that enforcement and monitoring of the guideline was poor, noting that the formation of complaints committees and the installation of complaints boxes at educational institutions was rarely enforced. In many cases, harassment prevents girls and women from attending school or work. Both women and men have been physically assaulted for challenging abuse. Odhikar documented 242 cases of sexual harassment, including stalking, in 2017. These figures are likely to understate considerably the true number of cases.
Violence against women also occurs frequently, particularly in relation to disputes over dowries. Odhikar reported 256 cases of dowry-related violence against women in 2017, compared with 206 cases in 2016. Although less common than in the past, acid attacks against women remains a particular problem. Most acid attacks are reportedly related to marital, family, land, property or money disputes, or to a woman’s refusal to accept a marriage proposal. Odhikar reported 52 acid attacks against women in 2017, compared with 40 cases in 2016.
… DFAT assesses that most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant submitted her and the second named applicant’s Bangladeshi passports, as well as the Birth Certificate for the third named applicant and her father’s Bangladeshi passport. On the basis of these documents and the first named applicant’s oral evidence the Tribunal is satisfied the applicants are citizens of Bangladesh. The Tribunal assesses the applicants’ claims against Bangladesh as their country of nationality and receiving country.
The first named applicant claims to fear harm in Bangladesh from her ex-husband and from her ex-husband’s parents. She also claims she fears harm in Bangladesh for having children born out of wedlock.
She also claims that she and her children will have nowhere to live and no one to look after them in Bangladesh. She claims her children are unfamiliar with Bangladesh, have not been to Bangladesh, and will have no education or future in Bangladesh. She claims she fears her children will be homeless and vulnerable to sexual harm.
Credibility
The Tribunal found the first named applicant to be evasive at times and less than forthcoming in her evidence to the Tribunal.
She stated that her ex-husband became abusive to her in Australia and he eventually moved out of their home in late 2011. She has had no contact with him since then, apart from an occasion in 2012 when he asked her for money, and a phone call last year when she asked him for his address to send divorce papers to. However, information from the department’s records indicates that the first name applicant’s ex-husband continued to live at the same residence as the first named applicant until at least November 2015. The first named applicant has stated that this is not true and that her ex-husband may have wrongfully provided her address as his, as a means of tormenting her. The Tribunal can see no sense in the first named applicant’s response. There is no perceivable advantage to her ex-husband, or clear path to disadvantage the first named applicant, in providing her address as his if he was not actually living at that address. To falsify his own address entailed greater risk of causing problems for him, than for the first named applicant. The Tribunal does not accept the response from the first named applicant is a truthful one.
The Tribunal accepts that the signature written ‘[Ms C]’ which appears on the first named applicant’s ex-husband’s 2011 [temporary] visa may have been written by her ex-husband himself. The Tribunal therefore gives her the benefit of the doubt that she did not sign the visa application form. However given it is her ex-husband declaring his place of residence in the application, the Tribunal considers the absence or presence of the first named applicant’s genuine signature on the form has little relevance as to the accuracy of his declaration.
The Tribunal considers that the clear evidence that the first named applicant’s ex-husband continued to reside at the same address as hers, in the years she claimed they had separated and she had almost no contact with him, substantially undermines her claim that she had been in an abusive relationship with him. The Tribunal finds that the first named applicant’s evidence about the nature of her relationship with her ex-husband is unreliable. The Tribunal found the evidence of the applicant’s partner, [Mr B], vague and hesitant in describing his living arrangements with the first named applicant’s ex-husband as well as the nature of the first named applicant’s relationship with her ex-husband. In view of the poor quality of the evidence from the first named applicant and [Mr B], together with the substantial material that counter her claims, the Tribunal does not accept that the first named applicant’s ex-husband has been abusive to her in Australia or that he has threatened her.

The Tribunal accepts that the first named applicant has commenced divorce proceedings in the Federal Circuit Court of Australia. She has presented evidence that she is no longer in a spousal relationship with her ex-husband and that she has been in a relationship with her current partner, [Mr B], since 2011. She presented her two children’s birth certificates which name [Mr B] as their father. She also submitted her passport which identifies Mr [B] as her spouse. Both she and [Mr B] were able to confirm their shared home addresses for the past several years. The Tribunal found their evidence in this regard credible. The Tribunal accepts that the first named applicant is no longer in a spousal relationship with her ex-husband and that she is divorcing him. The Tribunal also accepts that the first named applicant has been in a partner relationship with [Mr B] for several years and that he is the father of their two children.
The first named applicant stated at hearing that once her divorce is finalised she and [Mr B] will marry. The Tribunal has no reason to doubt her statements. It accepts that she is currently divorcing her ex-husband and she and [Mr B] will marry in the reasonably foreseeable future.
The first named applicant and [Mr B] gave inconsistent evidence about how they met, [Mr B]’s initial living arrangements, the timing of when [Mr B] moved in to the house she and her then husband lived in, and how and when their relationship began. In the Tribunal’s view, this was a result of their attempts to conceal their and the first named applicant’s ex-husband’s living arrangements, which were not reflective of the first named applicant’s primary claims to fear harm from her ex-husband. While the Tribunal found their evidence could not clarify when or how their relationship began, the Tribunal considers that they were able to establish the genuineness of their relationship.
The Tribunal accepts that the second named applicant and third named applicant were born in Australia, as confirmed by their [Birth] Certificates. The Department’s movement records also confirm that they have not departed Australia at any time. The Tribunal therefore accepts that they have not been to Bangladesh.
Fear of Harm in Bangladesh
In view of the Tribunal’s finding that the first named applicant’s husband has not been abusive or threatening to her, the Tribunal is not satisfied that there is any chance she will be harmed by him, or by his parents at his instigation, in Bangladesh. There is no accepted evidence that the first named applicant’s ex-husband poses any threat to her or her family. The Tribunal is therefore not satisfied there is a real chance of harm to the first named applicant, or any of the applicants, from, or because of, her ex-husband.
The first named applicant has also claimed to be at risk of harm from family and Bangladeshi society because she has had children out of wedlock.
If the applicants return to Bangladesh they are now a family unit with [Mr B] the father of their two children and the long-standing de-facto partner of the first named applicant. The first named applicant will therefore not be a single woman or a woman alone in Bangladesh. In view of her and [Mr B]’s intention to marry once her divorce is finalised she would either be returning to Bangladesh as a married woman or as someone who will soon be married.
The Tribunal also notes that there are official documents available to the applicants, namely her two children’s birth certificates and her own Bangladeshi passport issued by the Bangladesh Consulate, which name [Mr B] as her husband and the children’s father.
There is no reason apparent from the information before the Tribunal that the applicants and [Mr B] could not continue living together in Bangladesh, either as an actual or perceived married couple. The available country information does not indicate that a woman in the first named applicant’s situation, living as a family unit with her actual or perceived husband, is vulnerable to serious or significant harm in Bangladesh.
In light of the above the Tribunal considers there is no real chance the first named applicant will be harmed in Bangladesh because of her relationship with [Mr B] or because she has had children out of wedlock. For similar reasons the Tribunal is also not satisfied that there is a real chance of serious or significant harm to the first named applicant as a member of the particular social groups outlined by the applicant’s Agent in his submission to the Department. That is, the Tribunal is not satisfied there is a real chance the first named applicant faces serious or significant harm as a member of either of the following groups: Bangladeshi women or female Bangladeshis in a relationship outside the accepted norms of ultra-conservative Bangladesh society. The Tribunal notes that the other two groups described by the Agent, namely ‘Bangladeshi women who face family and social violence’ and ‘Bangladeshi females facing honour killing or assault’ are not particular social groups within the Act because they do not meet the requirement set out in s.5L(d) of the Act.
The first named applicant has provided information that her father is deceased and she has no contact with her mother or brother who she thinks lives in [Country 1]. There is no evidence, apart from the first named applicant’s vague and speculative contention, that her mother and brother would cause her or her children harm or have any reason to cause her or her children harm. On the information before it the Tribunal is not satisfied there is a real chance of any harm to the applicants from the first named applicant’s mother or brother or anyone else in the applicants’ family.
Given [Mr B] is the partner of the first named applicant and the father of the other two applicants, with documentation to support the legitimacy of the children’s birth and parentage, the Tribunal is not satisfied that the children will be perceived as being born out of wedlock. Even if it is discovered that the children were born before the marriage of their parents, the Tribunal considers that the chance of them being harmed is remote. As an established family unit that fits within the norms of cultural expectations there is very little motivation for anyone to take action against the family or harm them in any way. The Tribunal is therefore not satisfied there is a real chance of harm to the second named applicant and the third named applicant in Bangladesh, because the children were born out of wedlock.
The first named applicant has also claimed she fears she and her children will have nowhere to live and no one to look after them in Bangladesh. She did not explain why this would be, given [Mr B] is a primary part of their family unit. There is no reason offered or available why the applicants are not able to find accommodation. Nor is there any cogent reason why the first named applicant and/or [Mr B] would not be able to provide for and support the family in Bangladesh. The Tribunal notes the available country information of ongoing discrimination against women in Bangladesh, including regarding employment and employment opportunities. However the information also indicates that opportunities for women in the workforce do exist at a substantial level. The first named applicant is an educated woman with some work experience in Australia. On the information before it the Tribunal considers that she and/or [Mr B] would be able to obtain work to be able to support their family in Bangladesh. The Tribunal is not satisfied there is a real chance that the family’s capacity to subsist will be threatened in Bangladesh. The Tribunal similarly considers the chance the second named applicant and third named applicant will be homeless in Bangladesh, is remote. The Tribunal is therefore not satisfied there is a real chance these applicants will become ‘street children’ or that they will be subjected to sexual or other serious abuse.
The Tribunal has accepted that the two child applicants were born in Australia and have not lived in or been to Bangladesh. The Tribunal accordingly accepts that the Bangladeshi environment will be an unfamiliar one to them. However this alone does not give rise to a chance or risk of harm to either child. The second named applicant is six years old and the third named applicant is three years old. While they will need to adjust to a new environment this is not ordinarily a source of serious or significant harm for a young child, and there is nothing in this matter to indicate that it could be so for either applicant. As Bangladeshi citizens they have the same rights to attend school and receive education as other Bangladeshi children have. The Tribunal is not satisfied there is a real chance they will not receive an education in Bangladesh.
The Tribunal acknowledges that the applicants may have some initial challenges and adjustments to make, to re-establish and establish their lives in Bangladesh. However the Tribunal is not satisfied that these are of a nature to amount to serious or significant harm as contemplated by the Act.
The applicants have not made any other claims to fear harm in Bangladesh and none arise on the information before the Tribunal.
For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that any or all of them will suffer significant harm as defined in s36(2A) of the Act. Having regard to the findings made above regarding the applicants’ circumstances and claims set out above, the Tribunal is not satisfied that there is a real risk any of the applicants will be arbitrarily deprived of their life, or that the death penalty will be carried out on them, or that they will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment if they are returned to Bangladesh.
CONCLUDING PARAGRAPHS
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
The Tribunal affirms the decision not to grant the applicants protection visas.
Melissa McAdam
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4384

29 March 2019

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