1614700 (Refugee)

[2020] AATA 2222

1614700 (Refugee) [2020] AATA 2222 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614700

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Mila Foster

DATE:11 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2020 at 7:18am

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – religion – Buddhist – Barua ethnicity –reclaim land taken from his grandfather by Muslims – non-disclosure certificate not valid – imputed political opinion – against the parties promoting Islam as the state religion of Bangladesh – victims seeking justice– credibility –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 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 6 April 2016. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

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

7. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.

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

9. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant presented his claims and evidence in his protection visa application, in photographs and documents submitted to the Department, during an interview with the delegate on 6 July 2016, in his review application, at a Tribunal hearing held on 2 November 2018, and in documents and written submissions submitted to the Tribunal before and after the hearing.

    Summary of claims

11. Very broadly, the applicant claims he will be harmed and killed by Muslims if he returns to Bangladesh primarily because he will seek to reclaim land taken from his grandfather by Muslims and for reasons of his Buddhist religion.

    Issues in the review

12. The issues in this case are primarily the applicant’s credibility, whether documents from Bangladesh which the applicant presented in support of his claims are genuine, and whether there is a real chance that he will be subjected to serious harm or significant harm for reasons of religion if he returns to Bangladesh. Having considered the claims and evidence I have concluded that the decision under review should be affirmed. I give the reasons for my decision below after outlining the claims and evidence. 

    Non-disclosure certificate

13. I note that the Department of Home Affairs (the Department) file, [number deleted], which relates to the applicant’s  protection visa application contains a non-disclosure certificate issued on 19 August 2016. The certificate purports to have been issued under s.438(1)(b) of the Act in relation to information contained in a Department identification checklist completed in relation to the applicant.

14. A valid s.438(1)(b) certificate requires the Tribunal to disclose the existence of the certificate to the applicant and inform the applicant how the Tribunal intends to deal with it. For such a certificate to be valid it must specify a public interest reason for the non-disclosure of the information. In this case the reason given for the non-disclosure, that the information relates to internal deliberation of the Department, is not the basis of a claim for public interest immunity. The certificate is thus not valid.

15. The applicant’s migration agent noted the existence of the certificate at the hearing. I advised that it related to a Department checklist and did not contain information that was relevant to the review.

    Mandatory considerations

16. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by 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 a country information assessment report in relation to Bangladesh on 2 February 2018. Relevant information from that report particularly regarding the treatment of Buddhists in Bangladesh was put to the applicant at his hearing. On 22 August 2019 DFAT issued a new report which replaced the earlier report (hereafter DFAT Report). The information from the previous report which was put to the applicant at hearing is consistent with information in the current report. New information in the current report which was relevant to the applicant’s claims was put to the applicant in a post-hearing written invitation.

    Protection visa application

17. The applicant’s protection visa application included the following documents:

    a.a protection visa application form which the applicant completed without assistance,

    b.a photocopy of a Bangladeshi passport issued to the applicant [in] 2013,

    c.a statutory declaration made by the applicant on 7 April 2016 (first statutory declaration),

    d.a photocopy of the applicant’s Bangladeshi birth certificate, and

    e.photocopies of the applicant’s educational certificates.

    Applicant’s birth certificate

18. The birth certificate was issued [in] January 2009. It states that the applicant was born in Chittagong, Bangladesh and gives his permanent address as [Village 1], [Satkania], Chittagong,[1] Bangladesh.

    Applicant’s passport

    [1] For clarity I note, that Chittagong is the name of one of Bangladesh’s administrative divisions and a district within that division, Satkania is a sub-district of the Chittagong district, and the Chittagong division districts of Rangamati, Khagrachari and Bandarban are collectively known as the Chittagong Hill Tracts or CHT: Further, Chittagong district was renamed Chattogram in 2018:

19. The passport stated that the applicant’s permanent address was [Village 1], [Satkania], Chittagong and that his emergency contact was an uncle named [Mr A] whose address was [deleted].

    Protection visa application form

20. According to information provided on the protection visa application form the applicant is [an] [age] year old Bangladeshi national of Barua ethnicity who practises the Buddhist religion. He was born in Bangladesh. He completed [his] education in Bangladesh and then went to [Country 1] in June 2009 to study. He lived in [Country 1] until February 2016, where he completed a [course] and withdrew from a [higher level] course. He can speak, read and write Bangla and English. He was a Buddhist monk from February 2005 until February 2016 and had never been employed.

21. He had never married; his family consisted of his parents and a sister.

22. He arrived in Australia [in] February 2016 on a visitor visa. Prior to coming to Australia he had visited [various countries]. He was refused visas to [Country 2] and [Country 3] and had not applied for refugee status or protection in any other country or been registered with the UNHCR. He did not have the right to enter and reside, either temporarily or permanently, in any country other than Bangladesh.

23. He was seeking protection so that he did not have to return to Bangladesh[2]. He said he left (Bangladesh) ‘considering safety on my own life’ and believed he could be killed by Muslim fanatics if he returned to Bangladesh. The authorities would not protect him because most are Muslims and hate non-Muslims, they are biased and never do anything to protect non-Muslims.  He said non-Muslims in Bangladesh are treated badly by both the government and Muslims; he said minorities are tortured, prosecuted and burnt by the majority constantly. He could not relocate because he is their target and they would hunt him and kill him anywhere in Bangladesh; their networks are strong and can target anyone anywhere.

    First statutory declaration

    [2] The applicant also stated that he did not wish to return to [Country 1]. At the hearing he clarified that the visa he had to study in [Country 1] had expired and no longer had a right to return to [Country 1].

24. In the first statutory declaration the applicant stated:

    a.He was born in a small Buddhist village called [Village 2] located in the Satkania sub-district of Chittagong. Satkania was heavily influenced by a fundamentalist Muslim group called Jammat Islam (JI). Buddhists are always ‘unsecured’ in regards to their lives, properties and social and religious rites and rituals. There was almost no freedom for the Hindu and Buddhist minorities in the locality; many had left and moved to Chittagong city.

    b.His family had lived in the locality for generations and possessed quite a large area of land since the time of his (paternal) grandfather. That grandfather had [children] including the applicant’s father. Three of those sons settled in India in 1971. After the grandfather died, Muslim neighbours gradually grabbed the land until they occupied about two-thirds of the land. In 1982 his father and a paternal [uncle] (hereafter paternal uncle) lodged a case against the Muslim occupiers in a Satkania court. In 1995 the court made a decision in favour of the applicant’s father and paternal uncle.

    c.The occupiers of the land appealed to a higher court and in late 1995 their house was burnt down by a few young Muslim men from JI who were ‘in relation to’ the occupiers of their property.

    d.His family moved about [number] kilometres away to a maternal uncle’s home in the village of [Village 1] in Satkania.

    e.When he grew up his parents began to worry about his future given his family’s troublesome situation so his father arranged for him to be ordained as a monk and be taken care of by a Buddhist monk at [a] Temple near Chittagong city. He was ordained in February 2005 and began living at the temple.

    f.After passing his S.S.C in [year] and H.S.C in [year], he left Bangladesh for [Country 1] on the advice of his preceptor with the aim of obtaining a higher education. While studying in [Country 1] he visited a couple of Asian countries as part of his ‘educational tour’.

    g.In 2012 his father took over the handling of the court case from his paternal uncle after the uncle became ‘physically distressed’. He (the applicant) also encouraged his father to continue with the case.

    h.Within a week of attending a court hearing a group of young Muslim men came to their home. They physically tortured his father, threatened and warned that worse things would come to the family if his father continued with the case. His family was so scared they moved to Chittagong city.

    i.In December 2013 he became aware that his paternal uncle was very sick. He wanted to see his paternal uncle and left for Bangladesh [in] December. His paternal uncle died [in] January 2014. Before dying his paternal uncle requested that his cremation be performed on his homestead in [Village 2].

    j.His family returned to their village and were arranging to perform the cremation when a group of [Muslim] people ran toward them; some had knives and some had sticks. A few members of the group said they had no right to do ‘such a stupid thing’ there, everything was under their possession and they had to leave or they would all be bashed and the corpse thrown in the pond. They were forced to give up performing the cremation there.

    k.He told his preceptor about the incident the following day. The preceptor contacted a Buddhist police officer who advised that a case be lodged at the local police station against the attackers. 

    l.He lodged a case against the attackers with a Chittagong court [in] January 2014. Two of the accused were caught by the police within 10 days but released after just two days using their political power.

    m.[In] February 2014, while returning to the [Temple], he was stopped by a group of [young] Muslims. They pushed him to the ground and kicked him all over his body. One said “take the reward of putting us in jail”, some said “it is a Muslim country, you, minority should not fight against us” and another said “if you don’t withdraw the case you will be killed, we have a network all over the country, you can’t escape anywhere in the country”.

    n.After returning to [Country 1] [in] February 2014 he realised Bangladesh was not safe for him and he could not live in [Country 1] permanently so he tried to get a visa for a country where he could stay permanently.

    o.By December 2015, he got a visa for [Country 4] as a member of a group that had been invited for a religious occasion by a newly established temple. Before the invitation they laid down the condition that no one must apply ‘for a refugee claim’ in [Country 4].

    p.He got a tourist visa for Australia on 20 January 2016. Despite being scared of the Muslim attackers he returned to Bangladesh at his parents’ insistence to visit them for two weeks. He stayed at a relative’s house in the CHT during his visit. 

    q.He has had to stay away from his own home since his childhood and his family were in an unsettled condition. They were systematically persecuted by the Muslim majority. Minorities had no choice but to accept being persecuted in every step of life. Thus, his life would be in danger if he returned to Bangladesh.

    Additional evidence submitted to Department

25. The applicant subsequently provided a number of photographs and other documents to the Department in support of his protection visa application.

    Photographs

26. There was no annotation or anything accompanying the photographs to describe what they showed or their relevance to the applicant’s protection visa application. However, the applicant seemed to appear in most of the photographs attired in the robes of a monk and with his head shaved. From the [Country 1] script which can be seen in some of the photographs, it appears that a number of the photographs were taken in [Country 1]. In one such photograph the applicant is walking on a street with other monks carrying a banner referring to the Buddhist Community of Bangladesh in [Country 1] and calls for an end to violence against Bangladesh Buddhists.

27. One of the photographs is of a 2012 news article about a well-reported incident which occurred in the town of Ramu (in the Chittagong district of Cox’s Bazaar) during which Buddhist temples and homes were set alight.[3]

    [3] UN Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief on his mission to Bangladesh, A/HRC/31/18/Add.2, 22 January 2016, (Special Rapporteur Report),[50].

28. Other photographs appear to be of burnt out structures. The applicant appears in some of those alone and in others with monks.

29. There is one photograph of what appears to be the viewing of a deceased person.

    Additional documents from Bangladesh

30. The additional documents included the following:

    a.A photocopy of a Bangladesh Nationality Certificate dated [January] 2009 which is signed by the Councillor [of] the Chittagong City Corporation. The certificate certifies that the applicant is personally known to the Councillor, is an inhabitant of the ward and a Bangladeshi by birth. The certificate records the names of the applicant’s parents, his ‘permanent address’ as [Village 1], [Satkania], Chittagong and his ‘present address’ as [deleted].

    b.A Bangladesh Nationality Certificate dated [March] 2016 which is signed by [Official 1], Chittagong. The certificate certifies that the applicant is a known inhabitant of the union, Bangladeshi by birth, polite and well-behaved, and ‘not connected with any subversive of the state or of discipline’. The certificate indicates the applicant is from the village of [Village 1], [Satkania], Chittagong

    c.A Bangladesh Nationality Certificate dated  [March] 2016 which is signed by the [Official 1]. The certificate certifies that the applicant is a permanent resident of the union, a Bangladeshi by birth and ‘did not take part in any Activities Subversive to the state’. The certificate indicates that the applicant is from the village of [Village 2], [Satkania], Chittagong.

    d.Pages from The Daily Star newspaper dated 15 May 2016 the front page of which reports on the murder of a Buddhist monk in the remote hilly areas of Bandarban.

    e.A document titled ‘Simple Declaratory Suit’ attested by a Bangladeshi advocate and notary public and translated from Bengali into English on 19 June 2016 (hereafter ‘the Civil Suit’). The Civil Suit was ‘verified’ [in] October 1982 and filed in the ‘Honourable Sub-Judge Court, Satkania, Chittagong’. It concerns a dispute over land in [Village 2]. The first page of the document lists the applicant’s father and paternal uncle as the plaintiffs in the suit.

    f.A document titled ‘Complain’ (hereafter ‘the Complaint’) attested by a Bangladeshi advocate and notary public and translated from Bengali into English on 19 June 2016. The Complaint was filed by the applicant in the ‘[Court], Chittagong’ [in] January 2014 and concerns events that occurred [in] January 2014 when the applicant’s family attempted to conduct his paternal uncle’s funeral.  

    g.A letter from the [Village 2] Committee dated [June] 2016 (hereafter ‘the [Village 2] Committee Letter’). The letter is signed by the President and General Secretary. The letter refers to the forceful occupation of property the applicant’s father and paternal uncle had inherited by ‘sided properties’ owners’ who belonged to ‘Jamate Islami organization’, the ‘civil case’ the applicant’s father and paternal uncle had lodged in 1982, the paternal uncle’s last rites not being able to be performed due to ‘those terrorists’, and a ‘criminal case’ lodged by the applicant in 2014 against those terrorists.

    h.A letter dated [June] 2016 from [Mr A]. In the letter, Mr [A] refers to the fanatic Islamic fundamentalist forcefully occupying the properties of the applicant’s father and uncles, the applicant’s elder uncle not being able to be cremated on the family cremation ground due to opposition of ‘those fanatic groups’ and the applicant lodging a criminal case ‘against these oppression’ in 2014 (hereafter ‘Mr [A]’s first letter’).

    i.A letter written to the applicant by [Mr B], a Bangladeshi advocate, dated [June] 2016 (Mr [B]’s first letter). The advocate states that he had provided the applicant’s father with certified copies of a case lodged by the applicant’s elder uncle and father in 1982 and the case lodged by the applicant in 2014, that the ‘people of your opponent party’ had been pressuring his father to withdraw the cases, that they had threatened to kill the applicant’s father and pressured his parents to provide the applicant’s present address. Mr [B] said the applicant’s opponents would not hesitate to kill him if they came to know his whereabouts.

    Interview with delegate

1. The Department’s file includes an audio recording of the applicant’s interview with the delegate. I have listened to the recording.

2. At the interview the applicant gave evidence about matters which included how he came to apply for the protection visa application, where he and his family lived in Bangladesh, the forcible acquisition of his family’s land in [Village 2], his family being prevented from cremating his paternal uncle in [Village 2], being attacked in Chandgaon, the report he made to the police after that attack, his education in Bangladesh and [Country 1], countries he had travelled to and visas he had been refused, and why he did not seek asylum in [Country 4].

   Review application

3. The applicant’s review application included a copy of the delegate’s decision record. He appointed a migration agent after he lodged his review application.

   Pre-hearing submission and documents

4. On 26 October 2018 the applicant submitted the following documents to the Tribunal:

   a.A second letter dated 10 October 2018 written by Mr [B] (Mr [B]’s second letter). Mr [B] stated in the letter that ‘the opponents’ were ‘all the time’ threatening to kill the applicant’s parents and burn their houses if they did not withdraw the 1982 case, and had applied force to his parents to find out the applicant’s whereabouts. Mr [B] stated that they would definitely kill the applicant if they found him. He also said that the applicant’s case had been dismissed due to his long absence which made his opponents even more ‘envious’ than before.

   b.A character reference dated 14 October 2018 from the Secretary General of [Organisation 1].

5. On 29 October 2018 the Tribunal received a written submission from the applicant’s migration agent. It was submitted that the applicant had a well-founded fear of persecution for ‘convention reasons’ due to his Buddhist religion, imputed political opinion ‘against the parties passively or actively promoting Islam as the state religion of Bangladesh including the Bangladesh national party and Jamaat-e-Islami’, and his membership of the particular social group of ‘victims seeking justice’.

6. The submission contains internet links and extracts from news articles about the persecution of Buddhists and religious minorities in Bangladesh such as ‘land grabbing’[4] and Islamic fundamentalism in Bangladesh. It was submitted that Bangladesh is ‘predominately an Islamic State’, fundamentalist Islamic groups have a significant presence and influence, the influence of Islamic fundamentalism and extremism is growing, and that religious minorities including Buddhists face persecution. It was submitted that therefore the applicant faced a real chance of persecution for practising Buddhist principles.

   [4] Illegal seizure or acquisition of land.

7. It was also submitted that the applicant had a genuine intention and commitment to reclaim his property in Bangladesh and that the Islamic extremists who continue to occupy his family’s property would take seriously steps he took to reclaim his property or if he expressed his intention to do so. It was submitted that Islamic extremists enjoy active and passive support from the authorities. Hence, all the applicant’s circumstances especially his religious and perceived political affiliation gave rise to a real risk that he would suffer significant harm if he tried to reclaim his property.

   Tribunal hearing

8. The applicant gave evidence at the hearing on 2 November 2018 with the assistance of a Bengali speaking interpreter. His migration agent attended the hearing.

9. The applicant gave evidence that his life would be in danger if he returned to Bangladesh because he would demand his family’s land in [Village 2] and because he is a Buddhist. The applicant stated that he was no longer a monk but not for any reasons related to his claims for protection. He gave evidence about his travel and visa history and documents he had presented in support of his claims.

10. I showed the applicant the photographs he had submitted to the Department and asked about their relevance. He stated that they reflected the current situation in Bangladesh where Buddhist people are continuously beaten and their temples destroyed.

11. Asked about the relevance of the newspaper article he submitted to the Department. The applicant stated that he had submitted it to let the Department know that the Buddhist community was facing attack. He said he was a member of that community and that if they faced that risk then he faced the risk which was why he did not think Bangladesh was safe for him, he was a refugee and was seeking the Australian government’s protection.

12. I refer to the evidence the applicant gave at the hearing further in my assessment of his claims and evidence below.  

13. In oral submissions made at the end of the hearing the applicant’s migration agent stated that the applicant’s enemies were even angrier now that the applicant’s case in Bangladesh had been dismissed, the applicant was the next of kin to get the property given his paternal uncle had died and his father had a [medical condition] and was over [age] years old. The migration agent indicated that the escalation of the Rohingya issue in Bangladesh could place the applicant at risk of harm from people affiliated with the growing Islamic extremism in Bangladesh. Further, he said an election was expected in Bangladesh the following year, the political and security situation had worsened and there was evidence that the Awami League was seeking to attract the Islamic vote and may not want to be viewed as protecting minorities. In relation to the visa applications the applicant had made to other countries, the migration agent said it was necessary to consider the applicant’s activities and intentions. The applicant’s activities may have been influenced by his fear. He said the applicant may be perceived as having a political opinion against Islamic extremism, the BNP and JI. The migration agent concluded that considered cumulatively the applicant faced a real chance of serious harm if he returned to Bangladesh.

    Post-hearing evidence

    News article from migration agent

14. On 2 November 2018 the applicant’s migration agent sent the Tribunal a 30 June 2018 news article reporting that the ruling party in Bangladesh, the Awami League, was seeking to develop stronger ties with Islamic parties in the lead up to parliamentary elections.

    Post-hearing invitation to comment/respond to information

15. On 16 December 2019 the Tribunal sent the applicant an invitation to comment upon or respond to potentially adverse information (post-hearing invitation). The post-hearing invitation described the particulars of the information and the relevance of the information as follows.

    1.     During your interview with the delegate on 6 July 2016:

    a.You stated that [Mr A] was a relative, your maternal uncle. He was also your preceptor and you were a novice under him in 2005. You lived with him for quite some time. He lived at the temple in [Chittagong]. He paid for your ticket to Australia.

    The information is relevant to the review because it is inconsistent with the evidence you gave at your Tribunal hearing on 2 November 2018 that the person named [Mr A], who is referred to as your uncle in your passport, is not your uncle but has known you for a long time and you refer to him as ‘uncle’. It is also inconsistent with the evidence you gave at the Tribunal hearing that you paid for your ticket to Australia yourself from your savings. 

    If the Tribunal relies on the information it may find that you have provided false information to the Department of Home Affairs and/or the Tribunal and hence you are not credible.

    b.You stated that your father had a [business] until 2015 when he stopped working due to illness, prior to that your father co-owned [another] business.

    The information is relevant to the review because is inconsistent with the evidence you gave at your Tribunal hearing that your father had a [different] business which he stopped due to ill health.

    If the Tribunal relies on the information it may find that you have provided false information to the Department and/or the Tribunal and hence you are not credible.

    c.You stated that the situation got worse for you in Bangladesh in 2012 after your paternal uncle got sick and died [in] January 2012.

    The information is relevant to the review because is inconsistent with the statutory declaration you made on 7 April 2016 in support of your protection visa application in which you state that your paternal uncle died [in] January 2014.

    If the Tribunal relies on the information it may find that would have been able to recall at the interview that your uncle died in 2014 rather than 2012 if, as you claimed in your statutory declaration, you returned to Bangladesh in December 2013 for the first time since 2009 because your uncle was ill, after he died [in] January 2014 his subsequent attempted cremation in [Village 2] was disrupted, you complained to the police [in] January 2014 about the incident at the attempted cremation, you were attacked [in] February 2014 by people you had complained about, and you realised when you returned to [Country 1] in February 2014 that Bangladesh was not safe for you. The Tribunal may thus find that you are not credible.

    d.In response to being asked by the delegate whether you had been refused visas to any countries other than [Country 3] and [Country 2] (as you stated in your protection visa application) you replied ‘no’. When the delegate then asked whether you had applied for a visa to [Country 5], you replied that you had, many years ago, perhaps 9 years ago. Asked whether you had been refused visas to any other country you replied, ‘no’ but when the delegate put to you that the Department had information that you had applied for [visas] to [Country 6], you responded that you had.

    The information is relevant to the review because it indicates that you provided false information in your protection visa application and initially at your interview about visas you have been refused.

    If the Tribunal relies on the information it may find that you have provided false information to the Department and hence you are not credible.

    2.     In the letter dated 15 June 2016 from [Mr A] which you submitted to the Department in support of your protection visa application:

    a.There are spelling discrepancies between the stamp below Mr [A]’s signature and the printed letterhead used. According to the stamp Mr [A] is the Principal and President of the [organisation] but the letterhead refers to the ‘[different spellings of the organisation]’ [underlining and bold by the Tribunal].

    The information is relevant to the review because the discrepancies raise doubts about the genuineness of the letter and hence the veracity of its contents.

    b.Mr [A] states in the letter that you are well known to him and that your parents are religious worshippers but he does not state how you are known to him.

    The information is relevant to the review because Mr [A] gives no indication in the letter that he is your maternal uncle or was your preceptor as you claimed in your interview with the delegate nor does Mr [A] mention that you lived at the [temple] in Chittagong City from [February] 2005 until 2009 as you stated in your statutory declaration. Further, while you refer to your preceptor a number of times in your statutory declaration you do not name your preceptor or identify him as your uncle, [Mr A].

    If the Tribunal relies on the information it may find that the letter is not a genuine document and give it no weight.

    3.     In the letter dated 8 June 2016 from the President and the General Secretary of the [Village 2] Committee which you submitted to the Department in support of your protection visa application, the writers state that because your father and elder uncle lodged a civil case in 1982 the ‘opponents’ became furious and started a conspiracy to destroy your family and started running after you and your uncles all the time and for that reason your elder uncles took abode in town leaving their village homes.

    The information is relevant to the review because it is inconsistent with statements in your statutory declaration that three of your four paternal uncles left Bangladesh and settled in India prior to 1971 (paragraph 3), there was no immediate impact of the 1982 lawsuit (paragraph 5) and that it was after a court verdict in favour of your father and elder uncle in 1995 that your family was targeted and your family house in [Village 2] was burnt down (paragraph 6). Further, you give no indication in your statutory declaration that anyone was ‘running after’ you or that you had experienced any further harm in Bangladesh from any person connected to the 1982 lawsuit until after your uncle died [in] January 2014.

    If the Tribunal relies on this information it may find that the letter is not a genuine document and give it no weight.

    4.     The Australian Department of Foreign Affairs and Trade (DFAT) published a Country Information Report on Bangladesh on 22 August 2019 after your Tribunal hearing. That report replaced a previous such report published on 2 February 2018 which the Tribunal had considered prior to your hearing. The Tribunal must have regard to the current report insofar as it is relevant your claims.  The information and assessment in the current DFAT report about the situation for Buddhists in Bangladesh is consistent with the information in the previous report which was put to you at your Tribunal hearing. However, the current DFAT Report also contains the following additional information which appears relevant to the review:

    a.     The Awami League won the election on 30 December 2018 and has now been in power in Bangladesh since 2008.

    b.     The Barua are a large Buddhist group in Bangladesh. The majority of Barua live in Chittagong although there is also a large Barua community in the CHT (the Chittagong Hill Tracts).

    c.     Most Barua, particularly those in Chittagong, do not face social discrimination and violence based on their ethnicity.

    d.     Further detailed information about the widespread use of fraudulent documents and fraudulently obtained genuine documents in Bangladesh. …

    The new information is relevant to the review because it indicates that the 2018 election has not adversely or materially altered the situation for Buddhists in Bangladesh, as a Barua Buddhist from Chittagong (as opposed to the CHT) you would not face social discrimination and violence based on your ethnicity if you returned to Chittagong, and widespread documentary fraud in Bangladesh has continued.

    If the Tribunal relies on the information it may find that there is not a real chance that you will be subjected to serious harm or significant harm in Bangladesh because you are a Buddhist of Barua ethnicity and that the documents which you have submitted since lodging your protection visa application (which are listed in Attachment B to this letter) are not genuine.

    Finally, the above findings may ultimately lead the Tribunal to reject the claims you have made about the harm you claim you and your family have been subjected to in the past by Muslims in Bangladesh and find that you are neither a refugee nor owed complementary protection.

    Applicant’s response

16. In response to the post-hearing invitation the applicant submitted a statutory declaration he swore on 23 December 2019 (post-hearing statutory declaration), a letter from [Mr A] dated 13 December 2019 (hereafter ‘Mr [A]’s second letter’), copies of pages of the Mr [A]’s passport and the applicant’s mother’s passport, and some news reports cited in post-hearing statutory declaration.

17. Having regard to the applicant’s comments and on further reflection I have decided not draw an adverse inference from the applicant’s evidence about his father’s businesses. While not without doubts about whether the applicant has been entirely truthful about the nature of the businesses his father conducted, the applicant did state at both the interview and hearing that his father earned his living in business. I have decided that the precise nature of the business or business is not a matter of significance.

18. Further, I am prepared to accept that the applicant made a mistake when he stated at the interview that his paternal uncle died in 2012 rather than 2014 given that he has otherwise consistently stated that his paternal uncle died [in] January.

19. I have also decided not to place any weight on the reference to ‘uncles’ rather than ‘uncle’ in the Committee Letter as the difference of that one letter could simply have been a typographical error. However, for reasons I give further below, I do not accept the applicant’s explanations in relation to other issues with the evidence referred to in the invitation.

20. In response to the new information in the DFAT Report regarding the outcome of Bangladesh’s national elections in December 2018 election and the treatment of Barua Buddhists, the applicant claimed in the post-hearing statutory declaration that attacks against Buddhists had continued in Bangladesh. He stated that Buddhists faced forced conversion and were blamed for apostacy, and that there was a real possibility that Buddhists who actively practice and promote their religion would be accused of engaging in activities against Islam. He stated that there was growing Islamic extremism in Bangladesh so that religious minorities continued to face harm and growing influence of Islamic terrorism in Bangladesh from groups such as ISIS. He thus feared being a target of an attack for being a ‘Buddhist who promotes Buddhist principles’. The applicant claimed that a new citizenship law in India granting citizenship to Buddhists and Hindus who had moved from Bangladesh was considered anti-Muslim and as a result a Buddhist who had sought asylum in Western countries and lived in India would be targeted. He said there had been recent violence against Hindus which he feared would extend to Buddhists in Bangladesh. The applicant also highlighted other information in the DFAT Report and submitted that while DFAT assessed that Buddhists faced a low risk of societal violence from occasional localised incidents, the risk was in all the circumstances a real one. The applicant cited an essay in addition to news articles in support of those claims.

    Migration agent’s submission

21. On 27 April 2020 the Tribunal received a written submission from the applicant’s migration agent stating that the due to Corona virus issues in Bangladesh, the applicant would face practical difficulties moving to other areas of Bangladesh and thus internal relocation was not a reasonable option for the applicant. However, as I have concluded that there is not a real chance that the applicant will be subjected to serious harm or significant harm if he returns to Bangladesh for the reasons he has claimed, relocation is not an issue in the applicant’s case.

    Applicant’s credibility

22. Asked at the hearing about the seizure of his family’s land in [Village 2], his father’s and paternal uncle’s law suit, the disruption of his paternal uncle’s funeral, the 2014 attack on the applicant and the complaint he made to the police, the applicant provided brief details which were consistent with what had been provided in his first statutory declaration. However, when asked about matters which went beyond what he had said in the statutory declaration the applicant’s evidence was not consistent with the details in the statutory declaration and he responded with vague statements and what seemed to be generalisations and exaggeration. Overall, I was left with the impression that his oral evidence was not based on actual personal experiences but a recounting of the statutory declaration which he had committed to memory. I elaborate on those and other issues with the applicant’s evidence which raise concerns about his credibility and the credibility of his claims below.

1. The applicant stated in his first statutory declaration that his parents became worried about his future given the family’s ‘troublesome situation’ and so arranged for him to become a monk and live at a temple in Chandgaon. I questioned why his parents sent him away given it seemed he had not been specifically targeted when he was young. The applicant replied that his parents sent him to the temple because they thought it was not safe for him to stay after he became the subject of attack. Asked when he was attacked the applicant replied that they had to leave the village in 1995, they settled near his uncle’s house and were attacked there as well so his parents sent him away. According to the applicant’s first statutory declaration his family was targeted in 1995 after a court verdict was made in favour of his father and paternal uncle. He said their home in [Village 2] was burnt down and so his family moved to [Village 1] in late 1995. There is no suggestion in the first statutory declaration of any prior adverse impact due to the filing of the lawsuit in 1982 nor any mention of the applicant or his family being subjected to harm after they moved to [Village 1] until 2012 when the applicant claimed his father was attacked and threatened at home after lodging an appeal. Therefore, the applicant seemed to merely repeat at the hearing what he had stated in his statutory declaration without explaining why his parents sent him away in 2005 for his safety when it appeared that neither he nor his family had been specifically targeted since 1995.

2. I thus questioned whether the applicant had in fact been sent to the temple for educational reasons. The applicant then stated that his parents had experienced attacks from time to time and so fearing he may face attacks in the future they sent him there for his safety. If his parents had been subject to attacks between 1995 and 2005 then I expect the applicant would have mentioned them in his first statutory declaration or when I first asked why he was sent to the temple. It thus appeared the evidence that the applicant’s parents were subjected to attacks from time to time was invented at the hearing to explain why the applicant was sent away to the temple in 2005.

3. The applicant asserted at the hearing that if he returned to Bangladesh he would demand his father’s property. He stated that was why the people who had forcibly taken the property have continued to ask about him in Bangladesh despite his long absence and wanted him to stay away for good. I questioned the applicant’s assertion that he would demand the property if he returned to Bangladesh given it seemed he had never tried to do so in the past. The applicant agreed that he had never done anything to recover the land but insisted he would if he returned. He said it was his right to stay in his country and claim the property he inherited from his father and grandfather and that he would do so. That does not explain why he would seek to reclaim the property when he has not done so in the past. I questioned whether the applicant had any interest in claiming the property given that on his evidence he had applied for visas to 5 countries so that he did not have to return to Bangladesh. The applicant responded that he wanted to be settled, earn money and then go back and claim his property. I do not find that believable. The applicant only returned to Bangladesh on two occasions after leaving in June 2009. He did not return in 2012 when he claims his paternal uncle became so physically distressed by the lawsuit that he asked the applicant’s father to take over the handling of the case. The applicant did not return to Bangladesh after first leaving until 5 ½ years later and then only remained for about a month and a half. He did not demand the land during that time. He returned to [Country 1] and according to his evidence at the hearing it was after that that he began applying for visas to countries where he believed he would find safety. If the applicant genuinely wanted to find somewhere to settle before returning to Bangladesh to reclaim the property I expect that he would have done so sooner. Further, the applicant may not have had permanent residence in [Country 1] but had lived there for several years on successive [visas]. According to his evidence at the hearing he did not work but was financially supported by the temple in [Country 1] while he studied. Thus, it seems to me the applicant had a settled life in [Country 1] for a considerable period during which time he had ample opportunity to return to Bangladesh to assist or be involved in some way in reclaiming the land or demonstrate in some way that he had an intention of doing so if he genuinely had any interest, intention or desire in doing so. The applicant’s own past inaction strongly indicates that he does not intend to reclaim any property in Bangladesh. I note here that I am not suggesting that the applicant should not reclaim the land to avoid harm instead that the applicant’s claim that he would demand the land is not believable based on his own prior conduct. 

4. Asked at the hearing whether he believed he was a refugee or owed complementary protection for any reason other than the land issue the applicant indicated that he did.  He stated that Bangladesh was a Muslim country with a small number of Buddhists, he said there was just [number of] Buddhist families in his village so he did not feel his life was safe. Asked whether he had been subjected to any harm in the past in Bangladesh because he was a Buddhist apart from the land issue, the applicant’s response was unforthcoming, vague and unclear. He initially indicated that he had not been harmed but then said he was teased; he said that after he shaved his head he was teased in the street. He mentioned his sister, going to school and abuse by Muslim people but gave no details about what may have happened at school or any abuse he had been subjected to by Muslims. Other than being teased for his shaved head it was not apparent that the applicant had himself suffered any other harm in the past for reasons of religion. When I put to the applicant that being teased for having a shaved head did not seem to amount to serious harm or significant harm, he replied that was not the main thing. He said the main thing was that they were subjected to ‘torture’ ‘all the time’. For example, he said, if they went to temple to pray, they come and destroy their temple. He said that during his paternal uncle’s funeral they were in temple and they came and did all sorts of destruction in the temple and would not allow them to hold the funeral. The applicant said they did ‘all these things’ ‘all the time’, it was ‘continuous’ and that was why he was afraid to return. If the main harm the applicant had been subjected as a Buddhist was ‘torture’ and the destruction of the temple where he went to pray and that occurred ‘all the time’ and ‘continuously’ then I expect he would have mentioned that when I first asked what harmed he had experienced in the past because he was a Buddhist rather than the seemingly minor harm of being teased for his shaved head. I also expect he would have mentioned the ‘torture’ and other forms of harm he was subjected to all the time and continuously in his detailed first statutory declaration. Instead his response seemed a vague and exaggerated response of past harm which did not seem based on events he had personally experienced.

5. The applicant claims that his father earned his living running his own businesses and that his paternal uncle had worked in a [workplace]. I noted at the hearing that the applicant had been able to get an education in Bangladesh, his father had been able to run a business and his paternal uncle had had a job. I put to the applicant that did not seem to indicate Buddhists faced a level of discrimination or harm that prevented them from earning a livelihood or gaining an education in Bangladesh. The applicant agreed that he had studied and his father had a business but he said he did not feel mentally settled in Bangladesh or 100% part of the country. He said he was mentally pressured ‘all the time’, did not feel safe and was concerned about his safety because ‘they attack us all the time’. He said that anything they (Buddhists) wanted to do, they (Muslims) stood as an obstacle. He said that from childhood he felt his life was unsettled and he floated from one place to another. His sister was given in marriage at an early age because her family was concerned she would be attacked, kidnapped and converted to Islam. He said they did not have security in Bangladesh. For example, he said, they study and get a good result but don’t get a good job. He said Muslims are the majority and Buddhists are a minority. He said they (Buddhists) ‘can’t do anything’, they have to live silently and take ‘all the abuse’ by Muslim people. They do not have any roots or permanency in Bangladesh, they are floating and living here and there.  The response consisted largely of vague generalisations and what seemed like exaggeration about the treatment of Buddhists. If Buddhists were treated by Muslims as the applicant claimed ‘all the time’ then I expect that he would have experienced such treatment. However, as indicated in the previous paragraph when first asked about past harm he was subjected to as a Buddhist the applicant gave just one specific example – of being teased for his shaved head. Further, while he claimed he felt unsettled and floating, according to his protection visa application he had lived at just three different addresses in Bangladesh until he went to [Country 1] in June 2009 including 10 years with his family in [Village 1] from 1995 until 2005. I do not regard that as floating or unsettled. The applicant’s ability to gain an education in Bangladesh, his father’s ability have his own a business or businesses, and his paternal uncle’s ability to gain employment in a [workplace] does not indicate that Buddhists ‘can’t do anything’ in Bangladesh.  

6. The applicant initially told the delegate that he had only ever been refused visas to [Country 3] and [Country 2], and denied he had been refused visas to any other country. However, when the delegate put to him that she had information that he had been refused visas to other countries, the applicant eventually agreed that he had been refused a visa to [Country 5] and two visas to [Country 6]. He said he had failed to mention [Country 5] and [Country 6] visa refusals because they were long ago. At the hearing the applicant said he was refused [visas] to [Country 3], [Country 2] and [Country 5], and refused [visas] to [Country 6]. He said his plan had been to seek protection in one of those countries if he was granted one of those visas. Asked about his failure to mention all the visa refusals in his protection visa application the applicant said he forgot to mention [Country 6] and [COUNTRY 5] visa applications because he had applied to so many countries. In his post-hearing statutory declaration the applicant stated that he had made a unintentional mistake in failing to tell the delegate that he had been refused visas to [Country 5] and [Country 6]. He said it was long ago and he forgot. I do not accept those explanations. Firstly, question 72 of the protection visa application form asks whether the applicant has ever been refused a visa to any country other than Australia and if so to provide details. If the applicant had applied to four countries for the purpose of seeking protection in those countries I expect that such a direct and specific question would have prompted the applicant to recall that he had been refused visas to those four countries particularly if, as he claimed at the hearing, he had decided to seek a country where he could settle, feel safe and then return to Bangladesh and reclaim his family property. Further, I expect that the applicant would have been able to recall applying to [Country 6] given he had applied for two visas to that country. I note that when the delegate questioned why the applicant had not mentioned all the visa refusals in his protection visa application form he seemed to indicate that he did not understand the question on the form. The fact the applicant stated that he had been refused visas to [Country 3] and [Country 2] indicates that he did understand the question. The applicant’s failure to mention his visa applications to [Country 5] and [Country 6]  undermines his credibility and the credibility of the evidence he gave at the hearing that he applied to [Country 3], [Country 2], [Country 5] and [Country 6]  because he was looking for a safe country to go to because it was not safe for him in Bangladesh.

7. In addition to claiming that he applied for visas to [Country 3], [Country 2], [Country 5] and [Country 6] for the purpose of seeking protection in those countries, the applicant stated during his interview and at the hearing that he had undertaken some research about seeking protection in Australia before he came here and came to Australia with the intention of seeking protection. Yet, he stated in his protection visa application form that he had never applied for refugee status or protection in any country other than Australia and had never registered with the UNHCR. At the hearing I questioned why the applicant, an educated, well-travelled person who knew how to undertake research to apply for visas for the purpose of seeking protection had not sought protection or registered with the UNHCR in [Country 1]. I noted that the UNHCR had offices in [Country 1].[5] The applicant replied that he did not get the information when he was in [Country 1] that he could seek help and protection from UNHCR. According to his evidence at hearing and passport, the applicant lived in [Country 1] on successive [visas] for about 5 ½ years, he was well-educated, the [temporary] visa applications he made to 5 countries (including Australia) for the purpose of seeking protection demonstrate he had the ability to undertake research and locate information about seeking protection. I thus do not find it believable that the applicant would not have at least undertaken research and found information about seeking protection in [Country 1] and registering with the UNHCR in [Country 1] if he had a genuine fear of returning to Bangladesh.

   [5] [source deleted]

8. The evidence the applicant gave at the hearing about how he obtained the documents he submitted to the Department after lodging his protection visa application was vague and unforthcoming. Initially he said that once in Australia he contacted many people in Bangladesh and obtained them through his efforts and contact. When I sought to confirm that he contacted individuals and asked them to provide the documents, he said he contacted some people and asked his parents, they helped him and contacted some of the people because they had lived in different places and got the documents with everyone’s help. Thus, the applicant’s evidence seemed to be that he contacted some people directly and his parents contact other people on his behalf to obtain the documents. However, later in the hearing the applicant said he instructed his father to go to all the people and obtain the documents and his father did that on his behalf. The applicant’s evidence seemed intentionally evasive and to change. I expect that the applicant would have been able to give a clearer account of who contacted the people that provided the documents which on their face corroborate his claims.

9. At the hearing I noted from address on Mr [A]’s first letter that it appeared he was not from the village of [Village 2] and questioned how then he could attest to events related to the land dispute. The applicant responded that his parents sent him to the temple under Mr [A]’s authority, Mr [A] was the main person, he called Mr [A] ‘master’. The applicant said Mr [A] knew him very well, taught him and he became a monk under Mr [A]’s authority. Asked how Mr [A] could state that the events surrounding the land dispute occurred when it seemed he was not an eyewitness to those events, the applicant replied that he lived with Mr [A] for a long time and told him everything, his story, and his family information so Mr [A] knew. I questioned why the applicant’s passport referred to Mr [A] as his uncle and yet the applicant had not referred to him as an uncle. The applicant stated that he needed to give a contact when he applied for his passport and Mr [A] knew him very well and for long time but Mr [A] was not his uncle, he just called him uncle. However, as noted in the post-hearing invitation the applicant stated during his interview with the delegate that Mr [A] was his maternal uncle and, contrary to evidence he gave at the hearing, that Mr [A] paid for his ticket to Australia. In his post-hearing statutory declaration the applicant stated that Mr [A] was in fact his maternal uncle and provided copies of Mr [A]’s passport and his mother’s passport which he said showed their father’s name. The passports do indicate that Mr [A]’s father and the applicant’s mother’s father have the same name. That however does not explain why the applicant stated at the hearing that Mr [A] was not his uncle or the inconsistency in his evidence about who paid for his ticket to Australia. The fact the applicant now claims that Mr [A] is his maternal uncle without offering any explanation for denying he was his uncle at the hearing indicates the applicant had been intentionally untruthful at the hearing about the relationship between himself and Mr [A].

10. The above concerns with the applicant’s evidence, considered collectively, lead me to find that the applicant and his reasons for not wishing to return to Bangladesh are not credible. In reaching the conclusion that the applicant is not credible I have had regard to the favourable character reference from the Secretary General of the [Organisation 1]. However, given the evidence before me and having had the opportunity to take oral evidence from the applicant myself I have given the opinion of the writer no weight.

11. I note that in the post-hearing statutory declaration the applicant suggested that he had been mentally affected by his experiences in Bangladesh which caused him to sometimes be confused and forgetful. The applicant did not appear mentally impaired at the hearing nor is there any medical evidence before me that his ability to give evidence had been impaired by any mental or physical condition. I thus do not accept that as an explanation for the issues with his evidence that I have identified.

    Assessment of documentary evidence

12. The following matters raise concerns about the genuineness of documents which the applicant presented after he lodged his protection visa application.

13. Firstly, the applicant’s lack of credibility raises doubts about the documents he has submitted in support of his claims.

14. Secondly, the evasive and unclear evidence the applicant gave at the hearing about how he obtained the documents he submitted to the Department.

15. Thirdly, the evidence regarding the availability and widespread use of fraudulent documents from Bangladesh including their use by visa applicants and asylum seekers.[6] When I raised this information with the applicant at the hearing he said it may be common in Bangladesh but in his case it was not true, all his documents were originals and genuine. That assertion does not overcome my concerns about the genuineness of his documents.

    [6] DFAT Report 2019, [5.39]-[5.44]; Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015, BDG105263.E,

16. Fourthly, the timing of the submission of the documents. Asked at the hearing why he had not provided the documents he subsequently submitted to the Department when he lodged his protection visa application, the applicant stated that he did not have them with him, he had to obtain them from Bangladesh. I do not consider that explanation credible in relation to the documents which predated the applicant’s arrival in Australia and thus could have been brought with him -  the Civil Suit document, the Complaint document, and the Nationality Certificate dated [January] 2009. I specifically asked the applicant why that Nationality Certificate was only submitted in July 2016. He replied that he went to Chittagong in 2009 and that was when he collected that certificate. I asked again why he only provided it in July 2016. He said it was issued in 2009 and he presented it in 2016 which does not explain his delay in lodging the certificate. Further, if he had applied for visas for several countries including Australia with the aim of seeking protection when he got a visa to one of those countries then I expect the applicant would have obtained documents directly relevant to his claims before he came to Australia and brought then with him to lodge with his protection visa application.

1. Fifthly, issues with the following documents themselves raise doubts about their genuineness.

2. The nationality certificate issued [in] March 2016 states that the applicant is from the [Village 2] however according to his initial statutory declaration he had not lived in that village since 1995. At the hearing I asked the applicant why then the certificate stated that he was a permanent resident of the union in which the village was located and how the signatory could attest that the applicant had not taken part in any subversive activities against the state. The applicant responded that he was born there and had lived there and the [Official 1] just confirmed that by providing the certificate. The response does not explain why the certificate states the applicant’s permanent address was in [Village 2] or how the [Official 1] could attest that the applicant had not engaged in subversive activities when not only was [Village 2] not the applicant’s permanent address in 2016 he had not lived there since 1995 when he was [age] years old.

3. The nationality certificate dated [March] 2016 states that the applicant is from the village of [Village 1] and is an inhabitant of the union in which the village is located. Further that he was known to the signatory, he is polite and well behaved, he is not connected with any subversive of the state. However, according to the applicant’s evidence he had not lived in the village since 2005 when he left to become a monk. Questioned about these matters the stated that the certificate was also from the union [Official 1] and was like the other one. He said that before he became a monk, he Iived there and the [Official 1] knew him from that time, saw him, saw his behaviour and provided the certificate on that basis. He said he did not need the certificate at the time but then needed it which was why the certificate was dated like that. That does not explain why the certificate incorrectly stated that the applicant was an inhabitant of the union or how the [Official 1] could attest to the applicant’s conduct when the applicant had not lived there since 2005.

4. The Committee Letter states that because the applicant’s father and elder uncle lodged a civil case in 1982 the ‘opponents’ became furious and started a conspiracy to destroy the applicant’s family, they began running after the applicant and his uncles all the time and as a result the elder uncles took abode in town leaving their village homes. At the hearing the applicant stated that the writers of the letter knew about the events referred to in the letter because they were local people from his village and had witnessed everything that happened. However, as stated in the post-hearing invitation that account does not appear consistent with the statements the applicant made in his first statutory declaration that three of his uncles went to India in 1971 and his account of events following the filing of the law suit in 1982. In his post-hearing statutory declaration the applicant stated that the committee included ‘the events cumulatively’ in their letter. I do not accept that explanation. Contrary to the applicant’s first statutory declaration the Committee Letter gives the very clear impression that the applicant and his uncles were pursued from the time the law suit was lodged in 1982. The applicant stated that it was true that his paternal uncles had settled India in 1971, he said the committee knew the issues they faced due to the case, the extremists became angry with them and the year the committee put in its letter was a mistake. It is not apparent what ‘year’ the applicant is referring to as a mistake. The beginning of the Committee Letter refers to three of the applicant’s uncles residing in India but does not specify when they went there. Nor does the applicant explain how he knows that the committee made a mistake about ‘the year’. It remains unclear why the Committee Letters states that due to the filing of the law suit in 1982 the opponents started running after the applicant and his uncles ‘all the time’ and as a result the three elder uncles took abode in town leaving their village homes. It especially unclear in relation to the applicant who was not even born in 1982 and was about [age] years old when he claims his family left [Village 2] after their home was burned.

5. As noted in the post-hearing invitation there are spelling discrepancies in Mr [A]’s first letter between the stamp on the letter and the letterhead. In response to this issue the applicant provided a further letter from Mr [A]. Mr [A]’s second letter is written on the same letterhead as the first but bears a different stamp. The name and spelling of the committee on the stamp correspond to the name and spelling on the letterhead. In the second letter, Mr [A] apologises for the ‘unwilling mistakes’ in using the stamp and spelling discrepancies. He said they were unintentional and unconscious mistakes. He does not however explain how such mistakes could be made in the stamp. I thus do not accept that they could be the result of ‘mistakes’.

6. Further, even though Mr [A] stated in his first letter that the applicant was well known to him and the applicant’s parents were religious worshippers, he did not state how he knew the applicant. If Mr [A] was the applicant’s preceptor at the [temple] from 2005 until 2009 and is the applicant’s uncle, then I expect that would have been mentioned in the first letter to explain how the applicant was well-known to Mr [A]. According to Mr [A]’s second letter, it was also as a result of a mistake that he did not mention in his first letter that he was the applicant’s’ maternal uncle and preceptor. He does not however explain how the omission of such relevant information could be the result of a mistake. I do not consider the explanation believable.

   Conclusions

7. In light of the above concerns I find that the documents from Bangladesh which the applicant submitted to the Department after he lodged his protection visa application and to the Tribunal are not genuine. Those documents are the three nationality certificates, the Civil Suit, the Complaint, the Committee Letter, Mr [A]’s first letter, Mr [A]’s second letter, Mr [B]’s first letter and Mr [B]’s second letter. I have concluded that those documents have been fabricated to support the applicant’s land claim. I thus give those documents no weight.

8. I accept that the documents, copies of which were submitted with the protection visa application, are genuine. I accept that the [Country 1] documents are genuine as there is nothing on the face those documents that raises concerns about their genuineness or reliability. I accept the applicant’s passport, birth certificate, Bangladesh educational certificates are genuine because they were submitted with the protection visa application and the applicant’s personal information is consistent across those documents.

9. I accept that the passports of the applicant’s mother and Mr [A] in the photographs sent to the Tribunal are genuine. The personal details in the applicant’s mother’s passport are consistent with the details in the documents included in the applicant’s protection visa application. The names in both passports of the applicant’s mother’s parents and Mr [A]’s parents are the same as is their permanent address. Further, I thus accept that Mr [A] is the applicant’s maternal uncle.

   Nationality finding

10. The applicant has consistently claimed that he is a citizen of Bangladesh and no other country. His passports[7] confirm that he is a national of Bangladesh. I thus find that he is a national of Bangladesh and no other country.

    [7] He produced his renewed passport at the hearing.

    The applicant’s home area

11. At the hearing I noted that according to his passports and the documents he included in his protection visa application, the applicant’s permanent address was in [Village 1] and there was no indication in those documents that he had ever lived in [Village 2]. I put to the applicant that raised the possibility he was not from [Village 2] but had always lived in [Village 1]. The applicant responded that he regarded [Village 1] as his permanent address because that was where the new house was after the previous house was burnt.  He said he was not from [Village 1], he was from [Village 2] but he had to move and spent most of his time in [Village 1] but his everything was in [Village 2]. He added that he used the [Village 1] address and not [Village 2] so as not to be identified.

12. Based on the documentary evidence which I have accepted, all of which indicates that the applicant is from [Village 1] in the Satkania subdistrict of Chittagong, I find that is the applicant’s home area. I find that he had never lived in [Village 2] and would return to [Village 1] and not [Village 2].

    Ethnicity and religion finding

13. The applicant has consistently claimed to be a Buddhist. He appeared as a Buddhist monk in photographs he submitted. According to sources I have consulted[8] Barua Buddhists are one of a number of Buddhist communities in Bangladesh. The sources indicate that, unlike the indigenous Buddhists of the CHT region who have their own languages and cultures, Barua Buddhists speak Bengali, tend not to identify as indigenous and live amongst other Bangladeshis in the Chittagong district. The applicant gave oral evidence at the hearing in Bengali. As a Bengali speaking Buddhist from the district of Chittagong, I accept that the applicant is a Barua Buddhist as he has claimed.

    [8] DFAT Report, [3.9]; Barua, D. S. Prof, Dr., ‘Buddhism in Bangladesh: A Brief History by Professor Dr. Dipankar Srijinam Barua’, 17 February 2017,

14. I accept on the basis of the photographs submitted to the Department that the applicant was once was a Buddhist monk. He has not indicated that he would resume being a monk in the reasonably foreseeable future.

    Land dispute findings

15. There is independent evidence that Buddhists in Bangladesh have been victims of illegal land appropriation.[9] However, given the applicant’s lack of credibility, the issues with the evidence (described above) regarding the claim that his family land was illegally appropriated, and my finding that his home area is [Village 1] not [Village 2], I do not accept the claims the applicant has made in that regard.

    [9] DFAT Report, [3.8], Special Rapporteur Report, [48]-[49].

16. Specifically, I do not accept that the applicant’s paternal grandfather had a home in [Village 2] that was burnt and the land taken by Muslim neighbours. I do not accept that the applicant’s father and paternal uncle pursued legal action to reclaim any family land. I do not accept that the applicant’s father or paternal uncle have been harmed because they have tried to reclaim family land or that the applicant was sent to a temple to avoid being harmed by Muslims who had taken his family’s land. I do not accept that the paternal uncle’s funeral was disrupted or anyone attending the funeral or the temple where the funeral was held was attacked or damaged. I do not accept that the applicant was attacked in February 2014 because of a land dispute.

17. I thus find that the applicant has not faced any harm in the past in Bangladesh for reasons connected to a land or property dispute. I therefore find that the applicant will not seek to reclaim any family land if he returns to Bangladesh or face any harm for reasons connected in any way to a land dispute with Muslims. 

    Risk of future harm

18. At the hearing I put to the applicant that information before me regarding the treatment of Buddhists in Bangladesh indicated that there had been attacks on Buddhist temples and Buddhists on occasions but did not appear to indicate as he had stated that Buddhists were subjected to harm and Buddhist temples were attacked ‘all the time’. I questioned whether the applicant was exaggerating the situation. The applicant responded that I had not been there and seen what was actually happening. He said Muslim and Hindu people tortured Buddhist people, tortured ‘our sisters’, and all the news did not come to the attention of the media.

19. I put to the applicant that according to information in sources I had consulted Buddhists were a small minority but the constitution of Bangladesh afforded them equal legal status, prohibited discrimination on the basis of religion, provided that people could practise their religion and that was generally the situation in reality. I put to the applicant that the information indicated that incidents of violence such as attacks on temples and assaults against the Buddhist community occurred from time to time, that those incidents often flared up as a result of land disputes and other issues, but the incidents did not seem to occur with such regularity nor were they so extensive that they gave rise to a real chance that a Buddhist would experience serious harm or significant harm. I noted that I had to be satisfied there was a real chance he would suffer serious harm or significant harm. The applicant replied that was only on paper, practically it was not true. He stated that Muslim people were the majority, they were corrupt and used their power to oppress minority groups. He said they took possession of ‘our land’ and were are not on good terms with his family, they know he is the only person who could claim the land they possessed and they would definitely harm him on his return. He said it was a real chance. I have already rejected the applicant’s claim that he will be harmed due to a land dispute with Muslims in Bangladesh.

20. Although the information in the sources I have consulted[10] indicates that Buddhists are a small minority in Bangladesh[11] it does not indicate that Buddhists generally experience serious harm or significant harm in their day to day lives. The information indicates that while the constitution of Bangladesh designates Islam as the official religion it also commits the state to upholding secularism, guarantees equal status and rights to minority religions including Buddhism, prohibits discrimination and persecution on the basis of religion, and provides the right to practice all religions (subject to law, public order and morality).[12] The information indicates that generally Bangladeshis of different religions live together peacefully and are able to practice their religions[13] but that Buddhists can experience discrimination, harm and even violence for reasons of religion particularly in the CHT region.[14] For example, Buddhists have been victims of illegal land appropriation for reasons which included their religion and there have been instances of societal and Islamist violence inflicted against Buddhists, their homes and temples. However, the information does not indicate that the instances of harm and violence occur with such frequency or are so extensive that they give rise to a real chance that a Buddhist will face serious harm or significant harm for reasons of their religion particularly outside the CHT region. Further, DFAT assesses that most Barua, particularly those in Chittagong, do not face social discrimination and violence based on their ethnicity.[15]

    [10] DFAT Report; Special Rapporteur Report; Freedom House, Freedom on the World 2018 – Bangladesh, (Freedom House Report); United Kingdom Home Office, Report of a Home Office Fact-Finding Mission – Bangladesh, September 2017, (UK Home Office Report).

    [11] DFAT Report, [3.27], [2.6], [3.1]; UK Home Office Report, [1.4.1]; Freedom House Report, D2.

    [12] DFAT Report, [3.28]; Special Rapporteur Report, [6]-[7].

    [13] Special Rapporteur Report, [12], [15]; UK Home Office Report, [8.4.1].

    [14] DFAT Report, [3.4]-[3.5], [3.51], [3.52]-[3.54]; Special Rapporteur Report, [50]; UK Home Office Report, [8.6.3], [8.6.4]; Freedom House Report, D2.

    [15] DFAT Report, [3.9].

21. The applicant’s own circumstances do not indicate that he would face a real chance of serious harm or significant harm in Bangladesh because he is a Barua Buddhist. The unsatisfactory nature of the evidence the applicant gave at the hearing when asked what past harm he had been subjected to as a Barua Buddhist leads me to conclude that the only harm he was subjected to in the past was being teased for shaving his head. I do not accept he was ‘tortured’ or unable to attend temples to practice his religion. I find being teased for having a shaved head does not amount to serious harm or significant harm. Further, the applicant was able to obtain a high school education which enabled him to undertake tertiary study in [Country 1] and hence would return to Bangladesh with a tertiary education which seems likely to be advantageous to his employment prospects. His father was able to earn a living in business and his uncle had a job in a [workplace] which indicates they were not denied a livelihood for reasons of their religion and/or ethnicity. The applicant has not faced forced conversion nor been blamed for apostacy in the past. I thus find that the applicant has not been subjected to serious harm or significant harm in the past because he is a Barua Buddhist. In his post-hearing statutory declaration, the applicant seemed to emphasise that he would be targeted because he will promote Buddhist principles. He did not detail how he would do that. He referred to his past activities but did not detail what they were. If he genuinely intended to promote Buddhist principles then I expect he would have specified how he intended to do so at the hearing and/or in his post-hearing statutory declaration. I note the applicant was a monk in the past but has not claimed that he would wish to resume being a monk if he returned to Bangladesh. If he had wished to do so and that gave rise to a fear of future harm then I expect the applicant would have specified that at the hearing and/or in his post-hearing statutory declaration. I conclude that the vague claim about promoting Buddhist principles is an attempt to suggest that the applicant faces an elevated risk of harm as a Buddhist if he returned to Bangladesh. I do not accept that the applicant wishes to or would do anything other than merely practise his religion as an ordinary Buddhist if he returned to Bangladesh. There is no credible evidence that merely practising Buddhism would lead to the applicant being imputed with an adverse opinion of Islam, Islamic extremism, the BNP, JI or any political party or religious group in Bangladesh.  

22. The information in the sources the applicant cited in the post-hearing statutory do not indicate that matters such as the Indian citizenship law and the presence and activities of Islamic extremists in Bangladesh has elevated the risk of serious harm or significant harm faced by Buddhists to a real chance. The information indicates Islamic extremist groups such as ISIS and Jamaatul Mujahadin Bangladesh (JMB) are present and a threat to security in Bangladesh but that the main targets of the attacks they carried out were police in the capital of Dhaka. Further, the information indicates that the response of the Bangladesh authorities to extremism and terrorism resulted in a significant decline in terrorist attacks since 2016.[16] Regarding the new citizenship law in India, one of the articles cited by the applicant undermines his claim that Buddhists face a real chance of harm in Bangladesh.[17] The article states that leaders of minority groups in Bangladesh including a Buddhist leader contradicted the assertion of an Indian politician that religious minorities were persecuted in Bangladesh. The Buddhist leader is quoted as praising religious harmony in Bangladesh and stating that his community did not face persecution in Bangladesh. The applicant suggested that a Buddhist who has sought asylum in a Western country would be targeted if they returned to Bangladesh for reasons arising from the new Indian citizenship law but it is not clear how. It neither seems logical nor do the sources he cites support that contention. There is no credible evidence that a Buddhist would be targeted merely for seeking asylum in the West. The applicant claimed a Buddhist who has lived in India would be targeted but he has not lived in India. I do not accept that the applicant will be harmed for living in India.

    [16] See in particular

    [17] See

1. In light of the above, I have concluded that the applicant will be able to attend Buddhist temples and practise his Buddhist religion if he returns to Bangladesh and would not face a real chance of being killed or subjected to violence or harm amounting to serious harm, either individually or cumulatively, by Muslims, Islamic extremist groups, the Bangladesh authorities or anyone else for reasons of his Buddhist religion, Barua ethnicity, adverse imputed opinion and/or because he has sought asylum in the West.

2. I have also concluded that there is not a real chance the applicant will be arbitrarily deprived of his life, or that he will be subjected to harm by Muslims, Islamic extremist  groups, the Bangladesh authorities or anyone else because of his Buddhist religion, Barua ethnicity, imputed adverse opinion, and/or because he has sought asylum in the West which, either individually or cumulatively, amounts to ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, or ‘torture’ as defined s.5(1). It has not been claimed nor is there credible evidence before me that the death penalty will be carried out on the applicant if he returns to Bangladesh. I therefore find that there is not a real chance that the applicant would suffer significant harm as defined in s.36(2A) if he returns to Bangladesh.

   Refugee criterion

3. Having rejected the applicant’s claims regarding the land dispute, and found that there is not a real chance that he will be subjected to serious harm for reasons of his religion, ethnicity, imputed opinion and/or for seeking asylum in the West, I find there is not a real chance that the applicant will persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Bangladesh. The applicant thus does not have a well-founded fear of persecution within the meaning of s.5J(1) and consequently is not a refugee as defined in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection criterion

4. 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).

5. I have rejected the applicant’s claims regarding the land dispute and found there is not a real chance that he will be subjected to significant harm as defined in s.36(2A) if he returns to Bangladesh. I thus find there are 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 he will suffer significant harm. 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 – s.36(2)

6. 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

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

   Mila Foster
   Member

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   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.

   …