1614144 (Refugee)

[2020] AATA 4348

1614144 (Refugee) [2020] AATA 4348 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614144

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Mila Foster

DATE:10 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2020 at 11:14am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – particular social group – indigenous Chakma person from the Chittagong Hill Tracts (CHT) – religion – Buddhist – political opinion – indigenous rights activist – protests against human rights violations against the Jumma people – family members’ affiliation with the Shanti Bahini – fear of harm from the army, Bengali Muslim settlers, and Islamic fundamentalists – credibility concerns – inconsistent and vague evidence – delay in raising claims – voluntary returns to receiving country – mental health issues – interpreter/language issues – harm faced by indigenous peoples in the CHT – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 30 June 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

3. On 17 July 2018 the applicant appointed a migration agent to represent him during the review.

   CRITERIA FOR A PROTECTION VISA

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

   Refugee criterion

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

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

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

   Complementary protection criterion

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

9. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  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) which is extracted in Attachment A.

10. 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. They include 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: s.36(2B)(a).

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to Bangladesh on 2 February 2018. That report was replaced by an updated report on 22 August 2019. The updated report did not differ in significant respects which are relevant to this case from the previous report and information in other sources I consulted which I put to the applicant at hearing. The report published on 22 August 2019 will hereafter be referred to as the DFAT Report.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant presented a considerable amount of evidence in support of his claims for protection. All of the evidence, including audio recordings of the oral evidence the applicant gave during an interview with the delegate and at two Tribunal hearings, are on the Department file relating to his protection visa application and the Tribunal file relating to this review. I have considered all the evidence the applicant has presented however this decision only refers to the evidence which is relevant to the issues in the review.

13. As alluded to above I have also had regard to information from other sources which are relevant to the claims and evidence presented by the applicant. Those sources are listed in Attachment B to this decision.

    Background information

14. The applicant claims to be an indigenous Chakma person from the Chittagong Hill Tracts (CHT) of Bangladesh and is Buddhist. The following information from the sources cited in Attachment B provides background to the applicant’s claims.[1] 

    [1] DFAT Report at [3.1], [3.5]-[3.6], [3.27], [3.51]; Cultural Survival and American Indian Law Clinic, p.1; EASO, 1.1.2, 13.1, II.5; IWIGIA, p.362; Chowdhury and Chakma, pp.vii, 97-98; MRGI (2016), p.10; MRGI (2018); Solotaroff et al, pp.161-162; USDOS (2018), p.2; USDOS (2019), p.2.

15. The CHT is a hilly region within the Chittagong Division, one of Bangladesh’s eight divisions. The CHT consists of three districts: Khagrachari, Rangamati and Bandarban. The CHT is not to be confused with the district of Chittagong which is another district in the Chittagong Division or the city of Chittagong which is within the district of Chittagong.

16. About 98% of Bangladesh’s population of 163.2 million people is ethnically and linguistically Bengali. The remainder of the population includes over 50 indigenous peoples. Estimates of the total number of indigenous peoples varies. A commonly cited estimate is that they comprise about 1.8% of Bangladesh’s population. Many indigenous peoples have their own languages.

17. About 89% of Bangladesh’s population are Muslim, almost all are Sunni. About 10% of the population are Hindu and the remaining 1% follow other religions, mostly Buddhist. Most Buddhists are indigenous peoples living in the CHT.

18. The CHT is home to 11 indigenous peoples of whom the Chakma are the largest group. The indigenous peoples of the CHT refer to themselves collectively as the Jumma people meaning ‘highlanders’. There are also indigenous peoples in the remaining area of Bangladesh which is commonly referred to as ‘the plain’.

19. A government policy relocating Bengalis to the CHT caused large scale displacement of indigenous peoples and drove a low-level insurgency in the CHT from 1977 until 1997. The insurgency ended when the Bangladesh government and an indigenous political party of the Jumma peoples called the Parbatya Chattagram Jana Samhati Samiti (PCJSS) signed the CHT Peace Accord. The Peace Accord was to provide the basis for indigenous self-determination but many of its provisions remain unimplemented and the CHT remains a highly militarised region.

    Summary of claims

20. The applicant presented a number of claims over the course of the visa application and review process. Very broadly speaking, his primary claims are that he would be killed if he returned to Bangladesh by various state and non-state agents including the army, Bengali Muslim settlers, and Islamic fundamentalists because he is an indigenous political activist, his brother is the commander of an indigenous militia, and because he is indigenous and Buddhist.

    Issues in the review

21. The issues in the review are the applicant’s credibility, whether there is a real chance[2] he will be subjected to persecution in all areas of Bangladesh and whether it would be reasonable for the applicant to relocate to an area of Bangladesh where there would not be a real risk[3] that he would suffer significant harm. After considering the evidence I have concluded that the applicant lacks credibility, there is a real chance he would be persecuted and suffer significant harm if he returned to his home area in the CHT but there is not a real chance that he will be persecuted in all areas of Bangladesh and it is reasonable for him to relocate away from his home area to an area of Bangladesh where he would not suffer significant harm.[4]

    [2] A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

    [3] 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: MIAC v SZQRB [2013] FCAFC 33.

    [4] In SZATV v MIAC and SZFDV v MIAC the High Court held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Outline of applicant’s claims and evidence

    Protection visa application

22. The applicant provided the following information in the protection visa application form he said he completed without assistance.

23. Birthplace and nationality He was born in the town/city of [Town 1] in the Chittagong province/state of Bangladesh in [year]. He was a national of Bangladesh and had not been a national of any other country.

24. Ethnicity and religion He belonged to the Chakma ethnic group and was a Buddhist. He could speak, read and write English and Bengali, and speak Chakma.

25. Family He had never married or been in a de facto relationship. His family members consisted of his parents, a brother and a sister. His parents lived in [Village 1], Rangamati in Chittagong. His brother lived in [Town 2], Rangamati in Chittagong and his sister lived in [Town 3], Khagrachari in Chittagong. His brother’s name was [Mr A]. He occasionally contacted his family in Bangladesh by mobile.

26. Residence, education and employment He had never been employed and gave his occupation as student. There are gaps in the information about the applicant’s residential addresses and education.

27. The applicant said he travelled to [Country 1] for education and lived there at one address from June 2012 until January 2014. He said he travelled to [Country 2] for postgraduate studies and lived there at one address from August 2014 until June 2015. He gave no residential addresses prior to June 2012.

28. The applicant stated he had a [Qualification 1] from a university in [Country 1] where he studied from February 2008 until December 2011, a [Qualification 2] from a university in [Country 1] where he studied from February to December 2013, and a [Qualification 3] from a university in [Country 2] where he studied from September 2014 until May 2015. The applicant did not provide details of his primary or secondary education.

29. Travel to Australia The applicant stated that he arrived in Australia [in] June 2015 as a visitor on a Bangladesh passport issued to him [in] 2012. He last left Bangladesh [in] August 2014. He had a previous passport which he lost in Bangladesh.

30. Other travel In addition to travelling to [Country 1] and [Country 2], he also travelled to [Country 3] in 2013 for a religious visit, [Country 4] in April and September 2013 for religious talks, [Country 3] in September 2013 to meet devotees, to [Country 4] in September 2013 to visit religious friends, and [Country 3] again from January to June 2014 to perform religious activities.

31. Supporting documents The application included certified copies of a number of documents including the following:

    a.A Bangladesh National ID Card issued to the applicant (Bangladesh ID Card).

    b.A Bangladesh passport issued to the applicant [in] 2012 which states that his permanent address is [Village 1] Rangamati. The passport also states that is his father’s address.

    c.The applicant’s birth certificate issued [in] February 2009 which states that the applicant was born in [Village 1], Dist-Rangamati Hill Tracts, Country: Bangladesh.’

    d.A certificate dated [February] 2009 stating that the applicant was ‘an indigenous person and permanent resident of the [Rangamati Hill Tracts] district’.

    e.An Ordination Certificate issued [in] February 2009 which states that the applicant was ordained as a samanera[5] at [a] temple [in] March 2004 and had been a resident of the temple for four years (Ordination Certificate).

    f.A certificate issued by [University 1] of [Country 1] which states that the applicant passed a Diploma Examination in [Discipline 1] in August 2007.

    g.A [Qualification 1] which states that the degree was conferred on the applicant in August 2012.

    h.A [Country 2] Identity Card and University of [Country 2] Student Registration Card issued to the applicant.

    [5] Buddhist novice monk.

32. Reasons for claiming protection In relation to his reasons for claiming protection the applicant stated that he left Bangladesh because:

    I left Bangladesh because I absolutely feel insecure in that country due to my active involvement in various protests against human rights violations, torture, land grabbing, rape and harassment, non-implementation of CHT Peace Accord, etc. committed by the armed forces such as Bangladesh Army, Bangladesh Boarder Guard (BGB), VDP, Answar as well as Bengalee Muslim settlers and Islamic fundamentalists to our indigenous Jumma peoples, ethnic minorities and Buddhists in the Chittagong Hill Tracts (CHT) of Bangladesh since its independence in 1971.

    For me, there was no other ways except escaping from the above mentioned Bangladeshi armed forces, Bengalee Muslim settlers and Islamic fundamentalists in order to save my life and continue my peaceful activities for implementation of CHT Peace Accord, freedom of our indigenous Jumma peoples, ethnic minorities and Buddhists who have been politically, religiously and identically victims in the CHT of the country.

    I would like to mention here that I got death threat a few times directly and indirectly as well by Bengalee Muslim settlers and Islamic fundamentalists in the recent months because of my rules against their injustice, offence and inhuman activities on our innocent and peace-loving Jumma peoples at home and abroad.

33. The applicant said he thought the following would happen if he returned to Bangladesh:

    If I go back to Bangladesh, the armed forces as well as Bengalee Muslim settlers and Islamic fundamentalists will kill me. The authorities, far from protecting me, would prosecute me for what they perceive to be my anti-state attitudes and I would be handed over to the armed forces. It is the Bangladesh government’s plan to systematically destroy the indigenous Jumma peoples who are ethnic minorities and to convert Islamism to my people and to my homeland, the CHT.

    The government of Bangladesh, with the help of the armed forces as well as Bengalee Muslim settlers and Islamic fundamentalists will prosecute me falsely because I took part and led in various demonstration, peace procession, campaign, rally, discussion, press conference, and seminar etc. on implementation of CHT Peace Accord, human rights violations including land-grabbing, displacement, torture, massacre, attack, rape, threat, discrimination against the indigenous Jumma peoples by the armed forces and the Bengalee Muslim settlers.

34. The applicant said he had experienced the following harm in Bangladesh:

    Yes, I experienced such brutal incidents in various occasions that I cannot express in words. However, the Bengalee Muslim settlers, with the help of army personnel once burnt our village into ashes when I was very young. At that communal attack, my grandfather was murdered along with several other Jumma villagers. Somehow, my parents were able to escape from that incident but unfortunately; we lost our house and movable properties etc.

    On the other hand, I along with other activists of Pahari Chattra Parishad (PCP), the students wing of PCJSS, the only political platform of the indigenous Jumma peoples in CHT; while we were demonstrating in Rangamati town against the mass human rights violations on Jumma peoples, were attacked suddenly by Bengalee Muslim settlers and Islamic fundamentalists with the direct help of Police personnel. Due to [injuries]. I was taken to a clinic in Chittagong for better treatment.

35. He said he did not seek help within Bangladesh after the harm because:

    … instead of help from various department/agencies of Bangladesh Government; the army intelligence officials (DGFI) with the assistance of Bengalee Muslim setters and Police, searched in our villages and Rangamati town for me and other activists as well. Several activists were arrested and filed cases against us by Police. Luckily. I was not arrested then as I was in Chittagong for better treatment. Since then, I have been on the run but I keep my activities alive till today.

36. The applicant said he did move to another part of Bangladesh to seek safety because:

    After our house was burnt into ashes, we moved and took refuge at one of our uncle’s house located at a remote village up the hill for our safety. We had to spend nearly a week out there to protect our lives.

    On the other hand, personally whenever I travel to Bangladesh, I have been on the run as there is a case against me due to my participation in the demonstration, demanding proper justice and stopping the mass human rights violations on Jumma peoples of CHT, Bangladesh.

1. The applicant said he believed he would be harmed or mistreated if he returned to Bangladesh:

   … as I have been a noted active member of PCJSS, where I have been actively involved in their various activities for several years. So, now I have been a target of the Bangladesh government and it’s various agencies such as army, BGB as well as Bengalee Muslim settlers. As I have raised and protested against the human rights violations such as land-grabbing, displacement, torture, massacre, attack, rape, threat, discrimination, non-implementation of Peace Accord etc. in Chittagong Hill Tracts nationally, regionally and internationally. Therefore, I am a target of the Bangladesh government as I attended to a number of conferences in order to meet political, social and human rights personalities and to share the facts regarding the human violation of Chittagong Hill Tracts.

2. Application fee The protection visa application fee was paid for using the credit card of [Mr B] who resided at [Address 1] in [Suburb 1], NSW. The applicant submitted a statutory declaration from [Mr B] on review and [Mr B] gave evidence at the applicant’s hearing.

   Pre-interview evidence

3. On 3 November 2015 the applicant submitted further evidence to the Department in support of his protection visa application which included the following:

   a.A 10 page ‘statutory declaration’ made by the applicant. As the document was not dated, signed or declared I will refer to it as ‘the PV Statement’.

   b.A Domicile Certificate (translated into English) dated [February] 2009 from the ‘Headman’ of the Government of Bangladesh Office of the Headman stating that the applicant was personally known to him and was a resident of ‘[Village 1], Rangamati Hills District.’ (A Character Certificate (translated) dated [March] 2012 from the Chairman of [Upazila 1] stating that the applicant, who was personally known to him, was a ‘resident of [Village 1], Rangamati Hills District’ and ‘a permanent resident of Ward [number] of this Union.’

   c.Letter dated [July] 2015 from the ‘[Organisation 1]’ stating that the applicant was a member of the [organisation] and has been working for the welfare of Bangladesh Indigenous Peoples.

   d.Letter dated [July] 2015 from the ‘Chittagong Hill Tracts Hill Students’ Council (PCP)’ stating that the applicant was a member of the PCP which was the student organisation of the ‘Par Parbatya Chattagram Jana Samhati Samiti (PCJSS)’ which was ‘struggling for rights to self-determination of indigenous Jumma people in the Chittagong Hill Tracts, Bangladesh.’

   e.Letter dated [August] 2015 from [a monastery] stating that the applicant had been a resident of the [Country 1] Buddhist monastery from 2008 until 2014 (the [Country 1] Monastery Letter).

   f.Photographs said to be of ‘Demonstration against human rights violations by the Bangladesh military forces and bengali settlers in the Jumma people in the Chittagong Hill Tracts, Bangladesh’.

   g.What were said to be ‘Newspaper cutting from various sources’. One 2007 newspaper article reports on Bangladeshi monks protesting outside the Bangladesh High Commission in [Country 1] regarding the mistreatment of indigenous people of the CHT.

4. PV Statement The applicant stated in his PV Statement that the Pakistan government and, following independence in 1971, the Bangladesh government settled Bengali Muslims on the traditional lands of indigenous peoples of the CHT. In response to this the Jumma people formed a political party in 1972 called the Partbatya Chattagram Jana Samhati Samiti (PCJSS) or Chittagong Hill Tracts United Peoples Party. An armed wing of the party called the Shanti Bahini was formed in 1975. The applicant claimed that in [year], just before his birth, his father and [uncles] joined the Shanti Bahini and in 1991 the Bangladesh government established a large army camp near his village and subsequently settled 70 Bengali Muslim settlers in an area near his village. His father, who had become a regional leader of the Shanti Bahini, was arrested in 1991, severely tortured by the army and gaoled for about 5 years. In 1995 the applicant’s family was forced to leave their home village due to ‘the continuation of occupation in our lands, harassment, torture and threat by the army and Benaglee Muslim settlers’. The applicant claimed he was sent to an orphanage and, after being admitted to [an educational institution] in [Town 1], he joined the PCP to fight for Jumma rights. He attended demonstrations, rallies, discussions and was targeted as a result. He said he was beaten and threatened with death often by Bengali Muslim settlers and had to stop attending school. He was advised to get ordained and go to [Country 1] to study where he could be safe.

5. The applicant referred to some of his specific political activities in the PV Statement. They included the following:

   a.As a ‘student co-leader’ he joined a demonstration against an attack on a Jumma village in [Village 1] [in] July 2002.

   b.In 2003 he became the [office bearer] after joining the PCP at [an educational institution].

   c.He joined demonstrations in Dhaka, Rangamati, and Khagrachari [in] August 2003, [Date 1] September 2003, and [Date 2] September 2003 against an attack on 14 Jumma villages in Mahalchari [in] August 2003.

   d.He joined a silent protest and press conference on [Date 1] April 2006 and on [Date 2] April 2006 against attacks in Maischari on a Buddhist orphanage, Jumma village and Buddhist monk.

   e.He participated in a demonstration in [Country 1] [in] April 2008 against the attack on Jumma houses in Baghaihat.

   f.He participated in international conferences/events as a delegate of [Organisation 2], Bangladesh.

6. The applicant stated that if he returned to Bangladesh he would be killed by armed forces, Bengali Muslim settlers and Islamic fundamentalists for reasons which included:

   a)Political, peace, human rights and socio-religious activities to stop human rights violations against the Jumma peoples in the CHT at home and abroad,

   b)Buddhist religion,

   c)Membership of the PCJSS,

   d)Membership of [Organisation 2],

   e)Previous membership of the PCP,

   f)Membership of the [Organisation 1],

   g)An active member of [Organisation 3], ([Country 1] Branch), and

   h)Membership of CHT Repatriated Jumma Refugee Welfare Association.

7. Photographs The applicant seems to appear with other monks or novice monks in some of the photographs he submitted specifically photographs which were said to be of a silent procession in [Country 1] in 2009 against the burning of villages and Buddhist temples in the CHT. The applicant also seems to appear in a photograph at f.126 of the Department file behind a placard which states ‘Withdraw BD Army from CHT’. The applicant is wearing [specified clothing] rather than Buddhist robes.  According to an annotation, the photograph is of a demonstration in Dhaka (‘the Dhaka Photograph’). The Dhaka Photograph appeared to be the only photograph of the applicant at a demonstration or protest in Bangladesh.

   Interview with the delegate

8. The applicant was interviewed about his protection visa application by the delegate on 1 December 2015. I have listened to the recording of that interview. The applicant gave his evidence in English. He confirmed that he understood and could speak English and did not require an interpreter.

9. Matters the applicant was asked about and what he told the delegate included the following.

   a.How the completed his protection visa application. The applicant insisted that he completed the protection visa application and wrote the PV Statement himself without assistance.

   b.People the applicant knew in Australia. The applicant did not mention [Mr B].

   c.The applicant’s family members. The applicant stated that his family in Bangladesh consisted on his parents, a brother and a sister. He said his parents and brother were famers living in [Village 1]; his sister lived in another part of the CHT.

   d.Where the applicant had lived in Bangladesh and countries he had lived in and travelled to.

   e.Why the applicant had not sought protection in the countries he had lived in and travelled to.

   f.When the applicant joined the groups he claimed to be a member of and his activities in Bangladesh and overseas in support of indigenous people. The delegate put to the applicant that his evidence seemed vague. The applicant said he could not always recall dates and years.

   g.When the applicant became a monk and how long he spent in the monastery in Bangladesh. The applicant said he spent 2004 in the monastery until he left Bangladesh in August 2004. He said he was ordained as a monk in Bangladesh and given the monk name of [Name 1].

   h.When and why he returned to Bangladesh (after first leaving in August 2004). The applicant said he returned in 2009 for one month because his grandfather died and then again in 2011 to renew his expired passport.

   i.The applicant’s fears about returning to Bangladesh. The applicant stated he would be killed for attending processions and conferences.

   j.Any problems the applicant would face if he returned to Bangladesh. The applicant said the Bangladesh government, army, border guard, police, fundamentalists and Muslim settlers were all over the country and he could not escape them all.

10. During the interview the delegate showed the applicant a photograph which she said had been uploaded to a website called [Website] [in] January 2015 (the [Website] Photograph). A copy of the [Website] Photograph is on the Department file. It is identical to the Dhaka Photograph except that the applicant does not appear in the [Website] Photograph. The delegate put to the applicant that it appeared the Dhaka Photograph was doctored, that it was an image of the applicant imposed onto the [Website] Photograph. The applicant responded that he had obtained the Dhaka Photograph from a friend, the Dhaka Photograph was a photograph taken of him in 2004, it was him in the Dhaka Photograph, and it was possible that the two photographs were similar because rallies were held with similar signs.

    Post- interview submission

11. On 6 June 2016 the applicant submitted more articles and photographs to the Department in support of his protection visa application. The photographs were said to be of the applicant at a demonstration against the killing of a monk Buddhist in the CHT held [in] Canberra [in] May 2016 when a submission was presented to the Bangladesh High Commissioner.

    Review application

12. The applicant’s review application included a copy of the delegate’s decision record. He stated that he required an interpreter and the language/dialect he required was ‘Bengali (India)’.

    Pre-hearing communication, evidence and submissions

13. On 4 July 2017 the applicant submitted evidence in support of his review application which included news reports about an attack against indigenous and/or Chakma communities in Longadu[6] in Rangamati on [in] June 2017 and what appeared to be posts on applicant’s [social media] page of protests in Canberra and other countries against that attack. The applicant seems to appear in some of the photographs taken in front of Parliament House in Canberra [in] June 2017.

    [6] Various spellings in the evidence, Longadu used for consistency.

14. On 24 September 2018 the applicant was invited to attend a Tribunal hearing on 30 November 2018.

15. On 28 September 2018 the applicant requested a Chakma speaking interpreter for the hearing.

16. On 8 October 2018 the Tribunal informed the applicant that no Chakma interpreter was available. On the same day the applicant requested a Bengali speaking interpreter of Indian not Bangladeshi origin.

17. On 13 November 2018 the Tribunal informed the applicant that due to circumstances beyond the Tribunal’s control his hearing had been rescheduled to 14 December 2018. On the same day the applicant confirmed that he required a Bengali interpreter of Indian origin for the hearing and also requested that Tribunal take evidence at the hearing from two witnesses in Bangladesh: [Mr C], the friend who had provided the Dhaka Photograph, and his brother, [Mr A].

18. On 7 December 2018 Tribunal received an email from the applicant’s migration agent which stated that the following people would give evidence at the hearing by telephone:

    Applicant’s brother [Mr A] ([Mr A 1]) .. The relevance of this witness is, he is the brother of the applicant who is a military commander of the Parbatya Chattagram Jana Sanghati Samity (JSS) who is a military wing and fights for a the rights and freedom of the CHT people. It is very significant because it will corroborate the applicant’s and his family’s profile and his fear of harm.

    [Mr D], - [Organisation 3] ([Country 1] branch) … The relevance of this witness is, he would be able to corroborate applicant’s activities in [Country 1] and outside of [Sri Lanka].

    [Mr B], Friend of applicant’s brother. …

    [Mr C], Friend of the applicant. … He is the person who provided the photo of the applicant which the department raised concern. The applicant advised he would provide evidence confirming his mistake.

19. Attached to the email were the following documents:

    a.A statutory declaration made by the applicant on 7 December 2018 (Pre-Hearing Statutory Declaration).

    b.Psychological Report dated 14 November 2018 prepared by [Mr E], a registered psychologist.

    c.Letter dated 20 November 2018 from [Mr A] (Brother’s Letter).

    d.Letter dated 20 November 2018 from [Mr D], the President [Organisation 3] ([Country 1] Branch) ([Mr D]’s Letter).

    e.Statutory declaration declared by [Mr B] on 3 December 2018.

    f.Petitions to the Prime Minister of Bangladesh and to the Prime Minister of Australia which the applicant signed.

    g.Photographs including photographs said to be of the applicant’s brother [Mr A] and ‘his group’, [Mr A] making a speech to villagers, the applicant protesting in [Country 1], the applicant delivering a speech in [Country 1], houses burnt and people fleeing the village of Longadu in June 2017, Rangapani villagers protecting themselves from the military in September 2018,  the applicant at a protest in Canberra in May 2016, the applicant at events held in Canberra in June 2017 and February 2018.

20. On 10 December 2018 the applicant’s migration agent sent the Tribunal three emails forwarding documents which included the following.

    a.Two submissions from the migration agent dated 10 December 2018. One was a 28-page submission relating to the applicant’s claims (Migration Agent’s Pre-hearing Submission) and the other was a 6-page submission regarding the assessment of credibility.

    b.An undated letter from [Mr C] ([Mr C]’s Letter).

    c.What was referred to as ‘publicly available country information’ about the applicant’s brother ‘[Mr A] (Party name: [Alias 1])’ ([Alias 1] Information).

21. On 11 December 2018 the hearing was cancelled so that I could review the new evidence and submissions presented on 7 and 10 December 2018.

22. On 19 February 2019 the applicant was advised that the hearing had been rescheduled to 14 March 2019.

23. On 26 February 2019 the applicant confirmed he would attend the hearing.

    Pre-Hearing Statutory Declaration

24. The applicant stated in the Pre-Hearing Statutory Declaration that he feared he would face serious or significant harm including torture, degrading, inhuman and cruel treatment if he returned to Bangladesh for the following reasons:

    ·I belong to Jumma indigenous group. Chakma is one of the indigenous groups.

    ·I hold political opinion seeking self-determination and respectable solution for Jumma people.

    ·I am a member of HAG, PCJSS.

    ·I hold active and passive political opinion supporting the rights of the Jumma people.

    ·I would be perceived as a separatist seeking extremal self-determination for Jumma people. 

    ·I would be charged under sedition law due to my political opinion.

    ·Due to my religious background as Buddhist.

    ·Due to my family’s affiliation with military wing (Shanti Bahini) which fights for the freedom of our people.

    ·Due to my brother’s profile as a military leader of Shanti Bahini.

    ·Due to my ethnicity as a non-Bengali.

    ·Due to my active human rights activities exposing the human rights violations perpetrated against our people.

    ·I am member of Jumma Indigenous diaspora which engaged in agitation against the Bangladesh state for their inhuman activities against our people.

25. He said he would be harmed for the above reasons by the Bangladesh authorities, RAB, army, intelligence department, conservative and ‘racial minded’ Bengalis, and Islamic extremists. 

26. The applicant also stated that he feared he would face significant economic hardship for the reasons given above and, due to severe discrimination, he would be denied access to basic services which would threaten his capacity to subsist.

    Migration Agent’s Pre-Hearing Submission

27. The Migration Agent’s Pre-Hearing Submission included a considerable number of news reports about ‘the killings, inter and intra violence against Jumma people’, persecution of Buddhist and religious minorities in Bangladesh, and Islamic fundamentalism in Bangladesh. It was submitted that the applicant had a well-founded fear of persecution for the following ‘convention reasons’ if he returned to Bangladesh:

    Race: Jumma (Chakma)/ Non-Bengali

    Religion: Buddhist 

    Political Opinion (Imputed): holding political opinion supporting CHT and Jumma rights and nationalism; holding a political opinion supportive of secessionist movement/holding a political opinion seeking external self-determination for Jumma people (active and imputed); holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh including the Bangladesh Nationalist Party and Jamaat-e-Islami; holding a political opinion supporting HAG, PCJSS.

    Particular Social Group: member of family unit which has affiliation with secessionist movements in CHT; and member of Jumma diaspora (exposing human rights abuses of the Bangladeshi authorities) 

    Psychological Report

28. According to the Psychological Report the applicant contacted [Mr E] on 17 October 2018 regarding a psychological assessment and report. The purpose of the report was said to be to explain impact on the applicant’s the mental health if he returned to his country of origin.

29. The following was said to be background to the report:

    [The applicant] reported that when he was 6 years old, he saw Bangladeshi army shooting people of his tribe, Shantibahini. He reported that in his neighbouring district, where a Buddhist group lives, a 12 year old child was killed a few days back, in early November 2018. [The applicant] reports that his brother is involved with the Shantibahini group. His connection to [the applicant] makes [the applicant] at high risk of being caught. tortured and prisoned by the army. [The applicant] reports that the army has put a legal case against his brother for allegedly killing an Army Major. [The applicant] said that there are many such fake cases going on in his region.

    As he reported all this to the author, [the applicant] expressed that his level of fear and distress rises when he thinks about the prospect of returning to Bangladesh. He said he feels unsafe and if he returns to Bangladesh, it is imminent that he will be caught and tortured by the army.

30. [Mr E] assessed the applicant as meeting the DSMV criteria for Major Depressive disorder and stated that the applicant’s DASS 21 scores for depression, anxiety and stress were each in the extremely severe range. The applicant’s symptoms were said to include persistent depressed mood, insomnia for 3 years, loss of interest in pleasurable activities, feeling worthless, difficulty concentrating, feeling hopeless and suicidal ideation at times with no plans or intent currently. The report also stated that the applicant was functioning well and did not have behavioural issues; he had peaceful connections with people around him and was able to maintain paid employment. On a Social Occupation Functioning Assessment scale, [Mr E] assessed the applicant as having a score of 90/100.

1. [Mr E] concluded that:

   [the applicant’s] depression does appear strongly connected to threatening and conflictual circumstances in his home country. In author’s assessment and sessions with [the applicant], his fear and lack of safety (if he were to move to Bangladesh) is adding significantly to his depression and is a maintaining factor for his depression. He comes across in sessions as feeling powerless and helpless hearing about his family and community suffer in Bangladesh.

   Brother’s Letter

2. In his letter, [Mr A] refers to his ‘Political Party Name’ as [Alias 1], states his ‘Party Position’ is ‘[Position 1]’ and signs the letter as ‘[Mr A] ([Mr A]) Designation: [Position 2]’.

3. [Mr A] states that he joined the armed section of the PCJSS in 2000, had worked in different areas of the CHT since joining and was (currently) the ‘[Position 2]’.

4. He states that the applicant was his younger brother and that:

   If he returns to his country, now, his life is at stake!! I am still associated actively with the party. Other members of my family (too) are not safe. Due to my association with the party my family is in danger. At any time they can face harm because of me. He is my younger brother, so he faces greater risk of harm for being my sibling.

   However, this is true, being my own brother, although he resides outside our country, [the applicant] like any other leader or party workers has been actively supporting our struggle, the struggle to realize the fundamental principles of the agreement.

   [Alias 1] Information

5. The [Alias 1] Information consists of two documents. One is a news report dated [in] 2018 about the arrest of ‘two alleged members of the armed wing’ of Parbatya Chattagram Jana Sanghati Samity (JSS)’ from [an] area in Rangamati district and reports that one of the [arrested] was ‘[Mr A]’.

6. The other appears to be a report from the PCJSS website and concerns the detention of [a number of] indigenous villagers from a village [by] the Bangladesh army during which one villager was asked if he was ‘[Mr A]’.

   [Mr B]’s statutory declaration

7. According to Department movement records which the Tribunal has access to, [Mr B] arrived in Australia on a [temporary] visa [in] June 2008, was granted a protection visa [in] December 2008 and has not left Australia since.

8. He states the following in his statutory declaration:

   I am making this declaration in my full knowledge that [the applicant] is a younger brother of [Mr A] who is one of my childhood friends. I personally know [the applicant] very well for more than 3 and half years and he has been residing at my residence since his arrival to Australia. [The applicant] is a very good and humble young gentleman. He is a very good community member of Jumma people of Australia with many talents. He is a remarkable sporting person and an asset to our Jumma community in Australia. He is an honest and hardworking person who has good reputation for his work ethics and integrity at his workplace as we both work together unde the same company, [Mr A] (party name: [Alias 1]), elader brother of [the applicant] is a very close friend of mine. We studied together at [the same] high school, [Town 2], Rangamati Hill Tracts for more than 10 years from the primary level to the OIL. We also shared same residential hostel in the same institution along with other students. After the OIL we were selected to different colleges but still we had a good connection as friend. We used to meet each other whenever we had free time. To earn my higher education moved to [Country 1], while he was studying in local town Rangamati, Bangladesh. I met [Mr A] several times when I went back to Bangladesh after completing my higher study in [Country 1]. He told me that he decided to join to PCJSS (Parbatya Chattagram Jnana Samhati Samiti) in 2000 to work for the welfare of our Jumma people in Bngladesh since the situation of Chittagong Hill Tracts was going through terribly bad. Since then he has been playing an important role as one of the very reliable and active member of PCJSS. As per as I know presently he is working as a field commanders of a particular area in Rangamati Hill District. When I do contact to my other friends in Bangladesh I do ask about [Mr A] from them as well.

   [Mr D]’s Letter

9. According to his letter, [Mr D] is the president of the [Country 1] branch of [Organisation 3]. In his letter [Mr D] states:

   a.The applicant is a very close friend who he had known during the applicant’s stay in [Country 1] from 2004 until 2013.

   b.The applicant was [an office bearer] of the organisation from 2009 until 2013.

   c.They worked together for several years for the welfare of the Jumma indigenous people of the CHT. He had seen the applicant take part in various peace demonstrations and protests in [Country 1] and outside [Country 1]. There was such a demonstration [in] March 2010 against the communal attacks carried out by extremist settlers in the CHT where three Buddhist temples and hundreds of Buddhist houses were burnt down. They also organised and actively took part at a peaceful demonstration [in] October 2012 against a series of attacks on Buddhist monasteries, shrines, and houses of Buddhist inhabitants in Ramu Upazila, Bangladesh.

   [Mr C]s Letter

10. In his undated letter, [Mr C] states the following:

    My friend, [the applicant] and I, we grew up and studied together from childhood. We both participated in various meetings and in their struggle, movements of the Jumma tribe, One day my friend asked me for a photo in one of the numerous meetings that (he) attended, I tried hard to find but was unable to send him a photo of (him) attending one of those meetings. Later, I edited and posted a photo of his without his knowledge.

    Tribunal hearing

11. The hearing was part heard on 14 March 2019, adjourned on that day, and resumed and completed on 20 March 2019. The hearing was conducted over a total of about 7 hours.

12. The applicant gave his evidence with the assistance of Bengali interpreters of Indian origin but at times he gave his evidence in English or without waiting for the interpreter to interpret from English. At the beginning of the hearing I instructed the applicant to advise me immediately of any issues he believed he was having due to the interpretation.

13. [Mr B] gave evidence in person. [Mr C] and [Mr A] gave evidence be telephone using the interpreter. I decided not to take evidence from [Mr D]. Asked towards the end of the hearing what oral evidence [Mr D] could provide beyond what was in his letter, the applicant stated that [Mr D] could confirm that he had protested against the atrocities in Bangladesh while in [Country 1]. As that indicated [Mr D] could not provide evidence beyond what was in his letter I decided not to take oral evidence from [Mr D].

    Post-hearing evidence

14. On 9 April 2019 the Tribunal received a post-hearing submission dated 10 April 2019 from the migration agent on the issue of credibility.

15. On 29 April 2019 the Tribunal received a statutory declaration made by applicant on the same day (Post-Hearing Statutory Declaration) in which he states:

    ..

    2. As I mentioned in my hearing, I repeat my concerns that I was not able to present my case due to interpretation issues. I left Bangladesh at a young age and lived in overseas including [Country 1] for a significant part of my life. My mother tongue in Chakma and that is the language I am comfortable and would be able to provide evidence effectively. I do not have sufficient knowledge in Bengali language, though I could understand to some extend but it is difficult to comprehend and to answer because it is difficult to find the right words in Bengali for me to answer. It is not my mother tongue and I do not have reasonable standard in that language. When the Tribunal called for a hearing, I specifically requested Chakma interpreter because it is the language I know very well and would be able to provide my evidence effectively. However, the Tribunal called me and advised they could not find Chakma interpreter and said they could only arrange Bengali interpreter. I did not know what to do and I did not want to postpone my hearing as well. Due to that I was under pressure and I was left with no other option rather than to agree to the proposal of the Tribunal to have a Bengali interpreter. In other words, I agreed for that since I had no other option. During the hearing, the Tribunal member would have noticed that I was finding difficult to understand and comprehend and to find right words to provide my evidence, Due to that my evidence is significantly affected.

    3. I request the Tribunal to consider it and I have raised the issue during the Tribunal hearing as well.

    4. I have accepted my mistakes and admitted and expressed my sincere remorse. I am a refugee applicant and request the Tribunal to consider my particular dangerous situation if I have to go back to Bangladesh and consider my case with humane consideration.

    5. I again confirm that my brother is a commander of Shanti Bahini and due to his profile, I will face aggravated fear of harm. Though my other brother is still in Bangladesh but he supports the government and we consider him as a traitor. Due to his affiliation with the government and authorities, he is able to survive. But in my case, I hold a political opinion against the government and my political opinion directly challenge the status quo of Bangladesh state. As a result of that, I would continue to face harm.

    …

    7. … I suffer significant mental health issues. I may not be able to get adequate mental health facilities in Bangladesh. Either I would be deprived of mental health facilities due to my political opinion against the Bangladeshi state or alternatively, If I returned, and seek mental health assisted, I have to tell my issues why I suffer from depression and mental health issues. I am not sure whether there is any Chakma Mental health counsellors who are sympathetic to our political cause. In that case, I have no other option other than to see Bengali mental health counsellors. If I meet them, without telling to the Bengali mental health counsellors who I am and what is my issues are, I would not be able to get assistance from them. If I tell them about my back ground and I experience stress and mental health issues that would significantly endanger my safety. Due to that, I am afraid I would not be able to get mental health services in Bangladesh. …

16. On 27 April 2020 the Tribunal received an email from the migration agent attaching reports regarding corona virus in Dhaka and stating that ‘due to Corona virus issues in Bangladesh, our applicant will face practical difficulties in moving to other areas in Bangladesh. Accordingly, we submit that internal relocation is not a reasonable option in our applicant’s case.’

    Assessment of Applicant’s Credibility

17. In assessing the applicant’s credibility, I have had regard to the migration agent’s submissions on credibility, the Psychological Report and the claim the applicant made in the Post-Hearing Statutory Declaration that he had difficulties communicating with the Bengali interpreters used at the hearing. The migration agent’s submissions do not overcome my concerns with the applicant’s credibility. For reasons I give below I have given no weight to that Psychological Report and concluded that the applicant’s ability to give evidence and present arguments at the hearing was not impaired by mental illness. For reasons I give below I also reject the applicant’s claim that his ability to give evidence at the hearing was impaired due to interpreter/language difficulties.

18. The applicant gave his evidence at the hearing in what appeared a focussed, attentive and calm manner. He displayed no apparent sign of nerves, anxiety or distress. Further, the applicant’s high level of education was apparent in the oral evidence he gave at the hearing as it was in his written evidence. Over the course of several hours of oral evidence the applicant presented as intelligent, confident and astute. It did not appear that his ability to give evidence was impaired by stress or any language or communication limitations.

19. However, I have significant concerns about the applicant’s evidence which have led me to find him lacking in credibility. There were inconsistencies between the applicant’s written and oral evidence, his evidence and the documents he submitted, and his evidence and the evidence of his witnesses. Further, at the hearing the applicant tended to repeat in what seemed a rote-like certain manner the failure to implement the CHT Peace Accord and the treatment of indigenous/Buddhist peoples, matters he had already detailed in his written evidence, and yet appeared intentionally evasive and vague about the details of his own claimed activities and experiences in Bangladesh. And he significantly developed his claims over the course of the review without a reasonable explanation for not making those claims earlier. The following are examples of those issues. 

    Address in Australia

20. The applicant stated in his protection visa application that his residential and postal address was [Address 2], [Suburb 1] in NSW (the [Street 2] address). The [Street 2] address is the address he provided as his residential and postal address for the purposes of this review until 10 July 2018 when he informed the Tribunal that his new residential address was [Address 1], [Suburb 1] (the [Street 1] address) but that his postal address remained the [Street 2] address. Asked at the hearing what his residential addresses had been in Australia, the applicant initially indicated that he had lived at the [Street 1] address for a year then that it was nearly two years and that it had been the [Street 2] address prior to that. He offered no reason when asked why he kept the [Street 2] address as his postal address after moving to the [Street 1] address. When I noted that according to [Mr B]’s statutory declaration, he (the applicant) had resided at the [Street 1] address since he arrived in Australia, the applicant said there was a misunderstanding and then gave very unclear evidence during which his evidence about his residential and postal addresses in Australia seemed to shift and change before ultimately appearing to claim that he had always lived at the [Street 1] address and that the [Street 2] address had been his postal address. The evidence he gave about why he used the [Street 2] address as his postal address remained unclear in spite of my questions about that. I expect that the applicant would not have had difficulty giving a clear and consistent account of where he had lived in Australia. It seemed that the applicant changed his evidence about his residential and postal addresses in Australia when confronted with the inconsistency in [Mr B]’s statutory declaration.

    Residential addresses and education in Bangladesh

21. Even though the protection visa application form asked for all residential addresses for the preceding 30 years, the applicant did not provide any addresses for Bangladesh. The PV Statement and the documents the applicant submitted in support of his protection visa application indicated that he had not always resided in the village of [Village 1] where he said he was born. They indicate for example that his family moved from [Village 1] due to problems with the army and Bengali settlers when he was about 4 years old, that he was sent to an orphanage in 1998 and had lived in a temple for four years. However, it was unclear where and how long the applicant had lived at those different locations in Bangladesh. Further, although the protection visa application form asked for all educational details, the applicant provided no details regarding his education in Bangladesh. The applicant’s residential and educational details remained unclear to me even though the applicant was asked about them by the delegate at the interview.

22. I sought to clarify the applicant’s residential addresses and education in Bangladesh at the hearing as it seemed they might be relevant to his protection claims. After considerable questioning the applicant stated that he attended primary school in his village and then another village until Year 5 before returning to his village and completing Year 7, and then moving to a hostel in [Town 1] in 2004 to commence Year 8 at [an educational institution] before he left Bangladesh in August 2004. The applicant did not mention, and I had to ask him whether he had been sent to an orphanage in 1998 and had lived at the [named] temple. The applicant said he was sent to the orphanage for his primary education because there was a residential school there and that he joined in Year 3. He did not mention, as he had in his PV Statement that he was sent to the orphanage to save his life. He said he lived at the [named] temple for a few days in 2004. The evidence the applicant gave at the hearing about where he had lived and attended school in Bangladesh was unforthcoming and disjointed. It did not appear that was due to the applicant’s inability to recall those details. Rather it seemed he was being intentionally evasive.

23. Further, the applicant’s evidence that he lived at the temple for a few days in 2004 is inconsistent with the Ordination Certificate which states that he had been a resident there for four years. When I put that to the applicant, he responded that he could come and go and thus the four years may have been the combined period. There is nothing in the letter or the other evidence presented to suggest that the applicant came and went to the temple or that he did so over a period of time which could have totalled four years. Nor does that explain why the applicant initially stated at the hearing that he lived at the temple for a few days in 2004 if he lived there for a total of four years. The applicant’s explanation thus seemed to have been invented to overcome the inconsistency between his oral evidence and the Ordination Certificate.

    Ordination

24. Asked at the hearing whether he had ever been ordained as a monk as opposed to a novice monk, the applicant stated that he had only ever been ordained a novice monk. As the Ordination Certificate stated that the applicant was ordained at the [named] temple [in] March 2004 and the applicant’s evidence at the hearing suggested he was ordained at the temple while studying at [an educational institution], I sought to confirm that the applicant had been ordained in Bangladesh. The applicant however stated that he was ordained in [Country 1] not Bangladesh. When I put the information in the Ordination Certificate to him, the applicant’s stated that was a temporary novice situation and that after a couple of months he would return to normal life before being ordained under another guru. The applicant thus seemed to suggest that he had been ordained on more than one occasion under different gurus. However, there is nothing in the Ordination Certificate or the other evidence the applicant had presented to suggest that. Further, his response does not explain why he stated he was not ordained in Bangladesh, ‘temporarily’ or otherwise, when the Ordination Certificate explicitly states that he was ordained. I note also he told the delegate that he was ordained in Bangladesh. The inconsistency undermines the applicant’s credibility and raises doubts about the genuineness of the Ordination Certificate which I discuss further below.

    Siblings

25. The applicant stated in the protection visa application form, in his PV Statement, and at his interview that he had two siblings – an older brother and an older sister. However, at the hearing [Mr A] stated that had two brothers, the applicant and another brother named [Mr F] who lived in Chittagong (city), and no sister. The applicant’s explanation for this obvious inconsistency was that he did not mention his second brother because he did not have that brother’s birth certificate, there was an error in that brother’s birth certificate, and they did not have a good relationship because [Mr F] supported the government. I do not accept that explanation. The applicant had not provided birth certificates for [Mr A] or his claimed sister and yet had listed them as his siblings in the protection visa application form. Further, the protection visa application form specifically asked the applicant to provide details of his family members including siblings. Whether or not the applicant had a good relationship is irrelevant to whether they are siblings. The applicant signed the form and declared that its contents were true. I thus expect that the applicant would have provided correct details about his siblings in the form. The inconsistency raises doubts about the credibility of the applicant and [Mr A].

    Late claims

1. The applicant’s delay in making the claim that he would be harmed because his brother [Mr A] is a militia commander significantly undermines his credibility and the credibility of that claim. Asked at the hearing about his delay in making the claim the applicant stated that he did not know he could involve his brother until he discussed it with him. I do not find that believable. If the applicant’s uncles and father were members of the Shanti Bahini in the past and the applicant thought to mention that in his PV Statement then I expect he would have at least mentioned that he had a brother who was currently a militia commander and had been a member of the militia since 2000. The applicant’s failure to mention his brother was a militia member/commander at all in the lengthy statement seriously undermines his credibility and the credibility of that claim.

2. I also questioned the applicant about the other new claims he had made in his Pre-Hearing Statutory Declaration[7] and the Pre-Hearing Submission which included the claims that he would be perceived as being a separatist, charged with sedition, and harmed for holding a political opinion against parties promoting Islam as the state religion.[8] The applicant stated that he had not spoken to his brother earlier and he was not sure what to include or what could help him so he may have missed some things. I do not accept that explanation. The applicant portrayed himself in his protection visa application, interview and hearing as having being a well-informed political activist in Bangladesh and abroad, he claimed to have been involved with many organisations  and people in the course of his activism, that indigenous political activists are targeted for their opinions and activities, he is well-educated and, demonstrated in his protection visa application, at the interview and hearing that he is intelligent and articulate. I thus expect that he would have been more than capable without the advice of his brother or anyone else to ascertain well-before the hearing that the additional claims were relevant if they were based on his actual opinions, activities and fears.

   Political activity in Bangladesh

   [7] Paragraph 9.

   [8] Paragraph 1.

3. The applicant stated in his PV Statement that he had been a member of a number of groups in Bangladesh including the PCJSS, PCP, [Organisation 1] and [Organisation 4]. He said he joined the PCP as the [office bearer] after being admitted to [an educational institution] in 2003[9] and that while a student he was a ‘student leader’ and ‘student co-leader’ of demonstrations, rallies and discussion.[10] The delegate questioned the applicant about his membership of the groups and the activities he took part in but indicated that his evidence seemed vague. I note for example that when the applicant was asked when he joined the PCP he said he could not recall but that he was a student. Asked how old he was, he replied 10 or 12, 12, 13, maybe 12 or 13. He then indicated that students in Year 6, 7 and 8 needed to join. Asked what activities he took part in as a member; the applicant spoke in general terms. He said he attended protests in Dhaka but usually Rangamati, he said they assembled and discussed what should be next, how to gain rights from the government, how to raise their voice about Jumma people. He then said there were rape cases almost every month, burning of houses, attacking of people for no reasons. He did not mention any of the specific activities he had listed in his PV Statement which he claimed he had been involved in such as the demonstration je joined as a student co-leader [in] July 2002 against an attack on his own village of [Village 1].[11] Asked how he became a member of the PCJSS the applicant stated that the PCP and PCJSS were related and initially seemed to indicate that he acquired membership of the PCJSS by becoming a PCP member. He then described in vague terms what he said were the two ways to be involved which seemed to be online and in the field. He seemed to indicate that he did the latter and was involved in organising PCP meetings and collecting details. The applicant then said the Peace Accord had not been implemented, the military was still present, Bengali settlers were there, there was land grabbing rapes and a lot of problems.

   [9] At [16].

   [10] At [17], [23].

   [11] At [23].

4. Given the vagueness of the applicant’s evidence at the interview, I sought to elicit further detail about his membership and involvement with groups in Bangladesh. Asked when he became a PCJSS member the applicant merely replied it that he been active since he was in school but had no formal membership. Pressed for details he said he had been active with the PCJSS since he was in Class 8 in 2004, he said he worked for them in Bangladesh and after he left Bangladesh. He said he did not need to be an official member as long as he worked as an activist with them, that he always kept in touch with the PCJSS especially when he was in [Country 1] less so in Australia. He said it was hard to say how frequent the contact was, but it was every time there was a problem. The applicant did not mention that he led visits to Jumma villages and temples which had been attacked by the army and Bengali settlers, interviewed victims and took photographs as claimed in his PV Statement.[12] The applicant’s evidence seemed reluctant and vague. If the applicant had been a PCJSS activist who had worked with the PCJSS since 2004 and kept in contact with officials after that I expect his evidence would have been more forthcoming and detailed.

   [12] At [28], (i) on pp. 8-9.

5. The applicant was similarly vague and unforthcoming in his evidence about the PCP. Asked when he joined the applicant replied that the PCP and PCJSS were more or less the same organisation and he could not recall when he joined or started working with the PCP. Questioned further to ascertain when he became a member the applicant eventually stated it was about 2004 and that he had never been an official member which he indicated meant he had not filled in a form and it was not in writing. Despite my attempt to elicit the difference between the PCJSS and the PCP the applicant did not convey the very basic fact that the PCP is the student wing of the PCJSS political party.[13] When I raised that with the applicant he stated that there was hardly any difference between the two as the PCP works for or with the PCJSS and people normally move from the PCP to the PCJSS. If the applicant had been active with the PCP as a student in Bangladesh and particularly, as he stated in his PV Statement, as an [office bearer] then I expect he would have identified that the PCP was the student wing of the PCJSS political party and that his evidence about the PCP would have been clear and forthcoming rather than, as it appeared, deliberately obtuse.

   Past harm  

   The applicant claimed in the protection visa application form and PV Statement that he had been subjected to various instances of harm in Bangladesh both before and after the Peace Accord. He indicated that the harm he had experienced as a young child before and around the time of the Peace Accord was primarily related to attacks on his village but later he was specifically harmed due to his political activities.  For example, the applicant stated in the protection visa application form that he was attacked by Bengali settlers and Islamic fundamentalists with the help of the police while demonstrating in Rangamati town which resulted in injuries to his [body parts] and required medical treatment.[14] He claimed the police came looking for him and other activists and filed cases against them which led him to be on the run. The applicant claimed in the PV Statement that he was beaten and threatened with death often by Bengali settlers due to his political activities, and in the face of serious threat and attack from the army and Bengali settlers due to his political activities he was compelled to move to rom his village in 2004 to a relative’s home in Bhedvedi.[15] He also claimed that armed forced personnel, military intelligence personnel and Bengali Muslim settlers warned and threatened him when he led visits to different areas which had been burnt and Jumma people attacked, tortured and beaten.[16]

   [13] Parbatya Chattagram Jana Samhati Samiti (undated), ‘Pahari Chhatra Parishad’, accessed 20 February 2019.

   [14] Protection visa application form, Part C, page 21.

   [15] At [13], [14].

   [16] At (i) on pp. 8-9.

6. However, when asked at the hearing about the past harm he had experienced in Bangladesh after the Peace Accord for reasons of his ethnicity, religion, political activity or family connections the applicant did not mention the above specific instances of harm. Instead he stated that problems continued, they were not regular but could erupt at any time. He said people lived in fear, not knowing what may happen. He said people moved from place to place and sometimes had to leave in middle of night. He said there was no stability at all and that as recently as 2017 he went to Canberra to protest the burning own of about 200 houses and people being killed in Longadu. Asked whether he had been threatened with harm, the applicant responded that attacks were common before the Peace Accord and he could still recall leaving his home as a child and going into the hills, into the jungle, because of the fear of attack. He said those things happened even after the Peace Accord. Asked why he would be harmed in the future for his past political activities if as it seemed from his preceding evidence he had not been harmed or threatened with harm in the past due to those activities, the applicant replied that he would be harmed due to his elder brother as well as his own activities which had continued outside Bangladesh. The applicant had ample opportunity to provide examples of the harm he had experienced in the past due to political activities as well as his ethnicity, religion and family connections and yet he did not recount the very specific instances of harm had provided in his written claims other than fleeing his home with his family. That undermines both his credibility and the credibility of those claims.

   Return to Bangladesh

7. The applicant indicated in the protection visa application form[17] and PV Statement that he returned to Bangladesh to see his parents and engaged in political activities for the PCJSS.[18] The stamps in the passport issued to the applicant in Dhaka [in] 2012 indicate that he departed Bangladesh via Dhaka airport [in] June 2012 and [in] August 2014.[19] Asked by the delegate when he returned to Bangladesh the applicant said he returned in 2009 for one month because his grandfather was unwell and in 2011 to renew his passport. He said the 2011 trip was his last trip back and provided detail about the 2011 trip. He stated that even though he returned to renew his passport he lost it in Bangladesh and had to report his lost passport to the police. Asked how he felt about having to contact the police the applicant referred to not feeling like he was a citizen of Bangladesh. Questioned about how he entered Bangladesh on the two occasions that he returned, the applicant said he did so via the Indian border rather than the airport.

   [17] Part C, p22.

   [18] P.10.

   [19] See pages 8 and 28 of passport.

8. The applicant’s return to Bangladesh raises doubts about his claim that he had been harm in Bangladesh due to his political activity and because a case had been filed against him. Asked at the hearing why he returned to Bangladesh if he faced harm there the applicant stated that he took the risk of returning in 2014 for one month because it is his motherland and to see his parents. That is consistent with the 26 August 2014 departure stamp but he made no mention of the trips he referred to in his interview. I thus asked the applicant whether he had had earlier trips back. The applicant seemed reluctant to reveal his previous trips. He replied that he thought he had gone on one previous occasion but could not recall when it was. Asked whether he could recall how old he was when he returned on the earlier occasion, the applicant said it could have been in 2011 or 2012 and that he stayed 2, 3 or 4 months. He said it took some time because he had lost his passport. Questioned further the applicant stated that he stayed in Bangladesh for about a month in 2014, was waiting for his [Country 2] visa and both his trips back to Bangladesh were made via the airport. It is hard to believe that the applicant would have had difficulty recalling how many trips he made back to Bangladesh over a 10 year period if there were only two or three and especially if they were made for the specific purposes he claimed – to see his unwell grandfather, to renew his passport, and to wait for his [Country 2] visa. Further, if the applicant was a political activist as he claimed and had engaged in political activities for the PCJSS during a visits or visits as suggested by his written claimed then I expect he would have mentioned that when asked about his trips at the hearing.

   The Dhaka Photograph

100.   The applicant stated at the hearing that he was unaware when he submitted the Dhaka Photograph that it was a doctored photograph. He said he would not have submitted it if he had been aware that it was not genuine. I questioned how it was that he did not notice. He said he did not check it. I do not find it credible given that he the applicant specifically annotated the Dhaka Photograph as being a photograph of a demonstration in Dhaka. Further, when I noted that the applicant had an noted the Dhaka Photograph he stated that he attended many demonstrations in Dhaka and he may not have recalled the demonstration in the photograph. However, he had stated earlier that he had attended the demonstration depicted in the Dhaka photograph. Nor is it credible that the demonstration in the photograph may have seemed recognisable to the applicant given that according to information the delegate found on the [Website] the photograph had been uploaded [in] January 2015 and was of a demonstration in support of a blockade that was due to occur the following day.[20] When I put that to the applicant he offered no explanation for the evidence he had given that the Dhaka Photograph depicted a demonstration he had or may have attended Dhaka in 2004 and merely repeated the evidence he had given earlier that he had believed in his friend, he had asked his friend for photographs, and did not check the photograph.

[20] Department file CLF2015/38937, ff.134-135.

Activities with [Mr C]

101.   During the evidence he gave about the Dhaka Photograph, the applicant stated that he and [Mr C] had attended demonstrations together. [Mr C] stated in his letter that he and the applicant participated in ‘meetings’ together and stated at the hearing that they participated in various protests together. However, when I asked the applicant about the activities they engaged in together his evidence was vague. He indicated that they were in a student organisation and they supported and participated in protests and people high up organised. He referred to helping the community, the Chakmas, and supporting the political leaders of the PCP. He had already stated that he and [Mr C] had participated in demonstrations and did not specify any other activities they participated in together. 

Language and interpreting issue

102.   According to a Tribunal case note, an officer of the Tribunal telephoned the applicant’s migration agent on 8 October 2018 to advise that no Chakma interpreter could be provided and in response the migration agent advised that the applicant would use a Bengali interpreter but only an interpreter of Indian and not Bangladeshi origin. This was confirmed in writing by the migration agent in an email sent to the Tribunal on the same day which stated:

…  The applicant has instructed that if the Tribunal is unable to find a Chakma interpreter, he is happy with a Bengali interpreter and requested us to advise the Tribunal to arrange a Bengali interpreter from India and not from Bangladesh. We thank the Tribunal in advance. 

103.   I do not accept the applicant’s claim in his Post-Hearing Statutory Declaration that he felt he had no option but to proceed with a Bengali interpreter or that he had difficulties communicating with the Bengali interpreters used at his hearing.

104.   Firstly, contrary to the applicant’s suggestion in his Post-Hearing Statutory Declaration, it was not apparent that he had struggled to give his evidence at the hearing due to language issues.

105.   Secondly, the applicant had stated in his protection visa application that he could speak, read and write English and Bengali and did not require an interpreter. In the PV Statement he said his mother tongue was Chakma but that he also spoke English, [Country 1 language] and a little Hindi. He gave his evidence at his interview with the delegate in English. He confirmed at the interview that he could speak and understand English. At the hearing the applicant stated that his tertiary studies abroad were undertaken in the English language. I suggested that was why it appeared he could speak English well, the applicant replied not very well. Nevertheless, at times during the hearing, he gave evidence in English without waiting for the interpreter to interpret what I said into Bengali. Further, the applicant stated in his review application that he required a ‘Bengali(India)’ interpreter which I understood to have meant a Bengali interpreter of Indian origin. All that indicates that the applicant could speak and understand English and Bengali very well and was not disadvantaged by not having a Chakma interpreter.

106.   Thirdly, if the applicant was genuinely concerned about giving evidence in Bengali he had ample opportunity to raise that with the Tribunal before the hearing. The applicant was initially given 7 weeks’ notice of the hearing. I thus do not accept that he believed raising an issue about the interpreter would have resulted in the hearing being postponed. Further, the applicant had the opportunity to raise any language/interpreting difficulties during the first day of hearing and again between the first and second day of hearing but did not do so. Instead it was only at the very end of the second day of hearing, after almost 7 hours of hearing, when I asked whether he had any further evidence that the applicant stated his Bengali was not very good and he felt the interpreter tried their best thus suggesting that the interpreting may have been deficient in some way.

107.   I thus do not accept that the applicant was unable to express himself well using the Bengali interpreters provided at the hearing or that the interpreting was inadequate. I have concluded that the applicant sought to make language and interpreting an issue after the hearing in attempt to avoid adverse inferences being drawn about the evidence he had given at the hearing. That he would do so in undermines his credibility further.

Credibility conclusion

108.   Having regard to the above issues with the applicant’s evidence I find that he was not a credible witness.

Assessment of witness and documentary evidence

109.   In concluding that the applicant was not credible I have had regard to the totality of the evidence including the supporting documents and the evidence of the witnesses at the hearing. However, that evidence does not overcome my concerns with the applicant’s credibility.

[Mr A]’s evidence

110.   There were some consistencies in the evidence the applicant and witness gave about their family. For example, the names of their parents and where the parents were living. However, as already stated above, contrary to the evidence that applicant had given up to that point, [Mr A] stated that he had a second brother and no sister. When I informed him that the applicant had claimed they only had one other sibling a sister, [Mr A] offered no explanation for the inconsistency and merely stated that what had said was correct. Further, while he stated that his parents earned a living by farming land, when asked who owned the farm land he was vague and unsure stating that his father most probably owned it. When I noted that he seemed unsure he then said that he could definitely say it was owned by his father because ‘we’ have been farming the land for a long time. He thus appeared to change his evidence about whether his father owned the land he was farming. I expect that he would have been able to clear in the first instance about whether his father owned the land they farmed.

[28] Chowdhury and Chakma, p.26.

168.   The information indicates that as member of an indigenous Buddhist community in the CHT the applicant would be at risk of serious harm and significant harm in the CHT. Even though that risk would not be as high as it is for other members his community such as indigenous people involved in land disputes, indigenous activists and indigenous women, I am satisfied that the risk of harm from Muslim Bengali locals and authorities in the CHT would, when considered cumulatively, amount to a real chance of serious harm and significant harm for reasons of race and religion.

Risk of harm outside CHT and relocation

169.   However, to satisfy the refugee criterion it is not enough that an applicant has a real chance of being persecuted in one area of the receiving country. Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the receiving country. Further, under s.36(2B)(a) there is taken not to be a real risk that an applicant will suffer significant harm in the receiving country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm.[29]

[29] In SZATV v MIAC and SZFDV v MIAC the High Court held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

170.   Sources I have consulted[30] indicate that there has been a significant degree of migration of indigenous peoples from the CHT, including over 10,000 Chakmas, to other parts of Bangladesh particularly to urban areas such as Chittagong city and Dhaka. Further, Chittagong city is home to 40,000 Buddhists and Chittagong city and Dhaka have Buddhist monasteries and temples. Push factors for the migration of indigenous peoples from the CHT included displacement caused by land appropriation and communal violence while the primary pull factors are work and study. The harm indigenous peoples typically face in the CHT relates to land disputes, land grabbing and land appropriation, issues which would not arise in urban areas. The information indicates that while indigenous peoples who migrate to urban areas, including Chakmas, are likely to face some low level racial and religious discrimination and harassment, typically from non-state parties, they are able to work, study and access basic services. The information does not indicate as the applicant claimed that indigenous peoples are denied the capacity to earn a livelihood or subsist outside the CHT. The information does not indicate that indigenous peoples in urban areas face the same risk of violence or degree of harm they face from state and non-state agents in the CHT.

[30] Chakma and Akhy, p.269, 270, 272; DFAT Report, [3.52]- [3.54]; MRGI (2018); OHCHR, [12], [17]; UK Home Office (October 2018), [2.4.7], [2.4.9], [2.4.15], [ 2.4.17], [8.1.1], [8.1.2]; Toufique et al, pp. xviii-xix, 124, USDOS (2018), pp.9, 11, 12; Visser and Gerharz, pp.6-8, 10.

171.   The information does indicate that there have been instances of violence against Buddhists, temples and monks outside the CHT and small-scale attacks targeting minority religious groups by Islamic militant groups. However, the information does not indicate that such incidents occur so frequently outside the CHT as to give rise to a real chance of the applicant being harmed in such incidents in an urban area outside the CHT. Instead the information indicates that people of different religions generally live peacefully together and Buddhists are generally able to practice their religion.

172.   At the hearing I put to the applicant that the information before me indicated he did not face a real chance of serious harm or significant harm outside the CHT and that it seemed reasonable for him to relocate outside the CHT. The applicant agreed that Chakma people live in other parts of Bangladesh but he said not every Chakma was against the government and incidents occurred outside the CHT. He indicated he would be identifiable and would come to attention. He suggested there was a lack of reporting. He made vague references to government policy and forced religious conversion. I accept that the applicant would be physically identifiable as a Chakma and hence presumed to be Buddhist. I have accepted that he is not a supporter of the government.  However, I have not accepted that he is or would be a political activist or engage in public activity in support of indigenous/Buddhist peoples or their rights if he returns to Bangladesh. I do not accept there is a real chance that he will come to the adverse attention because of political opinions he will not express publicly. The information does not indicate that a Chakma living in an urban area outside the CHT who merely holds opinions which are supportive of indigenous peoples and their rights and not supportive of the government person faces a real chance of serious harm or significant harm. The information indicates that the risk of face serious harm or significant harm the applicant would face as a Buddhist outside CHT in the form of communal violence or attacks by Islamist militants from non-state agents is remote. The information does not indicate there the discrimination and harassment the applicant would face as an ordinary Chakma and Buddhist in an urban area outside the CHT which would rise to the level of serious harm or amount to significant harm as defined in s.36(2A). The information does not indicate there is a real chance that the applicant would be viewed as a separatist or secessionist or charged with sedition due to his his past or future conduct. Nor does the information indicate there is a real chance that the applicant would be subjected to serious harm or significant harm because he is a member of a particular social group connected to his family or the Jumma diaspora, or because he will be imputed with political opinions cited in the Pre-Hearing Submission.[31]

[31] Paragraph 1.

173.   I find on the basis of the findings I have made and the totality of the information in the sources I have consulted that there is not a real chance that the applicant would be subjected to harm from state or non-state agents in an urban area outside the CHT, individually or cumulatively, due to his Chakma/Jumma/non-Bengali ethnicity, Buddhist religion, actual or imputed political opinion and/or membership of any particular social group which would rise to the level of serious harm or amount to significant harm as defined in s.36(2A).

174.   Further, I find that it would be reasonable for the applicant to relocate from the CHT to an urban area outside the CHT where he would not face a real chance of significant harm. The applicant demonstrated at the hearing that he is able to speak Bengali, he is well-educated and has been able to live independently of his family his whole adult life, and has been able to find the means to support himself in three countries for several years. This indicates that the applicant would have the ability to adapt and live in Bangladesh outside the CHT. I note that after the hearing the migration agent provided two articles about the challenges which workers in Dhaka especially in the informal sector were likely to face due to the Covid-19 virus. There is no evidence before me that the applicant faces a real risk of serious harm or significant harm due to the virus or would be unable to take measures to protect himself or obtain medical services he may need so as to make it unreasonable for him to relocate. The virus may be a factor to consider in terms of where he relocates but does not make relocation outside the CHT unreasonable.

Protection visa criteria findings

Refugee criterion

175.   Having found that there is not a real chance that the applicant would face serious harm in Bangladesh outside the CHT, I find there is not a real chance that he would be persecuted throughout all areas of Bangladesh for reasons of race, religion, nationality, membership of particular social group or political opinion. In reaching that conclusion I have, in accordance with s.5J(6), disregarded the political activity the applicant engaged in in Australia. I therefore find that the applicant does not have a well-founded fear of persecution within the meaning of s.5J and consequently is not a refugee as defined s.5H(1).

176.   I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection criterion

177.   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).

178.   I have found that it would be reasonable for the applicant to relocate to an urban area of Bangladesh outside the CHT where there would not be a real risk that he will suffer significant harm. I thus find that there not 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.

179.   I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusion

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

DECISION

181.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Mila Foster
Member

ATTACHMENT A -  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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – 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; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…

ATTACHMENT B – SOURCES CONSULTED BY TRIBUNAL

Amnesty International, 2018, Amnesty International Annual Report 2017-18, , 22 February 2018,

Chakma Basu M. and Asma Akter Akhy, 2015, ‘Hill to Plain: Causes and Impacts of Internal Migration of Indigenous Peoples in Bangladesh’, Sociology Mind, 5, 268-275, M.S. and Pallab Chakma, 2018, Human Rights Report 2017 on Indigenous Peoples in Bangladesh, Kapaaeng Foundation, Survival and American Indian Law Clinic, 2017, Observations on the State of Indigenous Human Rights in Bangladesh: Prepared for the 30th Session of the United Nations Human Rights Council Universal Periodic Review,

European Asylum Support Office (EASO), 2017, EASO Country of Origin Information Report - Bangladesh Country Overview,

Freedom House, 2019, Freedom in the World 2019 - Bangladesh, Rights Watch (HRW), 2018, Human Rights Watch World Report 2018,

International Work Group for Indigenous Affairs (IWGIA), 2018, The Indigenous World – 2018, pp.362-370, 2019, Bangladesh: Falska handlingar,[32] Translation: False documents.

Minority Rights Group International (MRGI), 2016, Under threat: The challenges facing religious minorities in Bangladesh, Rights Group International (MRGI), 2018, Bangladesh Adivasis,

Toufique Kazi A., Abdul Hye Mondal, Mohammad Yunus, Sinora Chakma and Sami Farook, 2017, Baseline Assessment of Skills and Employment of Indigenous and Tribal Peoples in Bangladesh, ILO Country Office for Bangladesh, Home Office, 2017, Report of a Home Office Fact-Finding Mission - Bangladesh,

UK Home Office, 2018, Country Policy and Information Note Bangladesh - Background information, including actors of protection, and internal relocation, January, Home Office, 2018, Country Policy and Information Note - Bangladesh Religious minorities and atheists, October, Nations Office of the High Commissioner for Human Rights (OHCHR), 2016, Report of the UN Special Rapporteur on freedom of religion or belief on his visit to Bangladesh,  Department of State (USDOS), 2018, 2017 Report on International Religious Freedom – Bangladesh, .

US Department of State (USDOS), 2019, 2018 Country Reports on Human Rights Practices – Bangladesh, Jacco and Eva Gerharz, 2016, ‘Mobility aspirations and indigenous belonging among Chakma students in Dhaka’,  South Asian History and Culture, 2016, Vol. 7, No. 4. pp. 370-385.