1620444 (Refugee)

[2022] AATA 1382

1620444 (Refugee) [2022] AATA 1382 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620444

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Silva

DATE:6 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 06 April 2022 at 1:37pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Buddhist – discrimination, personal and property damage and land dispossession by local Muslims – deaths of mother and sister, threats to father and applicant and false murder charges filed against applicant – fled to third country and later convicted in absentia – obtained third country passport in another name and travelled extensively and to Australia – passport assessed as genuine but other documents and evidence establish Bangladeshi national – general anti-Buddhist policies, actions and violence – credibility – vague and inconsistent claims and evidence – family’s and Buddhist community’s continuing presence in home village – authenticity of corroborative documents – timing and circumstances of leaving home country – travel to other countries without seeking protection there – country information – ethnic and religious conditions in local area – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (2A), 65, 438(1)(a)
Migration Regulations 1994, Schedule 2

CASES  

AVQ15 v MIBP [2018] FCAFC 133

MZAFZ v MIBP [2016] FCA 1081

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his mid-[decade] who claims to be from Bangladesh and to be a national of that country.

2. The applicant arrived in Australia [in] April 2016, on an Indian passport and holding a visitor visa. He applied for a protection (class XA) visa on 30 May 2016. On 28 November 2016, the delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is summarised in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

6. The applicant is a member of the Barua community, a Buddhist minority who identify as Bengalis. He claims that local Muslims targeted Buddhists and other minorities, with discrimination, and more serious physical and property damage. He claims that in 2002, Muslim extremists killed his mother during an attempted land grab. After his father filed a murder case, they continued to intimidate and threaten the family, steal livestock and demand that the murder case be withdrawn. In 2004, they were implicated in the death of the applicant’s sister.

7. In 2010, a member of the Bangladesh Jamaat-e Islami party (JeI) was killed during political clashes near the applicant’s shop. Members of the Islamic gang, including a person accused of his mother’s murder, unexpectedly demanded that the applicant come forward as an eyewitness to the killing, or they would kill him. The applicant fled to relatives in a neighbouring area. On learning that his opponents had filed false murder charges against him, he then fled to India, without documents.

8. The applicant’s life as an undocumented foreigner in India was insecure, so he obtained an Indian passport fraudulently. In the meantime, he learned that he was convicted of the false murder charges in absentia, and has been sentenced to life imprisonment. The applicant claims to fear imprisonment and mistreatment on his return. He also vows to pursue the murder charges against his mother’s killers, which will motivate local Islamic fundamentalists to seriously harm or kill him. More generally, he claims that, against a backdrop of rising anti-minority sentiment and Islamic extremism in Bangladesh, he is at risk of persecution or significant harm as a Buddhist.

9. The applicant claims that he is at risk throughout Bangladesh. The authorities, who are corrupt and have often fostered anti-minority sentiment, will not protect him.

   Background

10. The applicant is a [Age] year old man from a village in Ukhiya, Cox’s Bazaar district. He is a member of the Barua community and a Buddhist. He speaks Bengali (Bangla), namely the Chittagonian dialect.

11. The applicant claims to have lived in his village until 2010, i.e., [age]. He said that some 1,300 Barua live in the village, but that they are outnumbered by Muslims. The Tribunal had been unable to locate the name of the village on any maps, but the applicant readily named some nearby villages with apparent familiarity[1]. One of the letters that the applicant presented[2] indicated that there was a Buddhist training and meditation centre in the village. He correctly named the centre, but vaguely said it was a ‘bit far away’ in Kutupalong. The Tribunal found this unconvincing and concludes that the centre is in fact in the village.

    [1] The applicant gave the village name as [Village 1], with several variations that appear to reflect both transliteration from Bengali to English, and local dialectal pronunciations. Although the Tribunal has been unable to find the village on maps, several sources suggest that it is about [distance] from Ukhiya, a town in Rajapalong union, near Patabari. The applicant’s mention at hearing of nearby villages corresponds with those of names that appear in Mindat.org. The copies of the applicant’s, his father’s and his sister’s national ID cards contain coding consistent with his claim to be from Rajapalong union.

    [2] Letter from [Mr A], [Official 1] of [a Buddhist organisation] in ‘[Village 1], Ukhiya’.

12. The applicant attended high school until 1999 ([age]), and then undertook [an Occupation 1] apprenticeship in a neighbouring village. In 2006, he set up his own business in Ukhiya [(town)]. These were rented premises, and he purchased equipment for [his] work. The applicant claimed to have abandoned the shop in May 2010 (in connection with his protection claims). At hearing, he said that, after he left Ukhiya, his father returned to the shop and arranged to sell the contents.

13. The applicant’s parents are deceased; his mother died in 2002 and his father in 2019. His father was a landowner who farmed the land, with hired workers. An older sister died in 2004. He has one younger sister, who currently looks after the land while the applicant is abroad. The Tribunal formed the impression that she has nominal responsibility for the land, i.e., is managing it, but not actively farming it.

14. The applicant claims to have left Bangladesh in late May/early June 2010, in response to threats. He was based in India in the following years. He obtained an Indian passport in the name of another person, and went to [Country 2], where he lived and worked from May 2013 to March 2014. In early 2016, he undertook travel to [Country 3], [Country 4] and [Country 5]; and from the last of these, to [Country 6] and [Country 7]. It appears that the purpose of this travel was to demonstrate a travel history, to support his application for an Australian visitor visa.

15. The applicant obtained an Australian visitor visa on 29 March 2016, as the holder of an Indian passport in the name of [Alias]. He entered Australia [in] April 2016 and, as noted above, he lodged his protection visa application on 30 May 2016.

16. The applicant claims to be working part-time [in] Australia, and to be involved in the Bangladeshi Buddhist community, through a temple in [Suburb]. During the course of the hearing, he indicated that he continues to have contact with family members and friends in his home area.

    Evidence

17. The evidence before the Tribunal includes the following relevant material (this is a consolidated list of material to the Department and the Tribunal, and is not exhaustive):

    §The protection visa application lodged on 30 May 2016, which the applicant claims to have completed with the assistance of a person in his home village in Bangladesh. The applicant set out his claims in brief comments on Form 866C, and in a nine-page statement.

    §During the course of this review, the Tribunal received submissions (including substantive ones dated 11 January 2022 and 16 February 2022, and statements from the applicant, dated 11 January 2022 and 10 February 2022.

    §Identity documents:

    -The applicant provided a photocopy of an Indian passport issued in [2011]. It in the name of [Alias], born in [India] on [Date]. A property receipt form on the Department file indicates that the Department has the passport in its possession. The passport shows evidence of travel to [Country 2] in 2013, and [Country 6], [Country 4], [Country 5] and [Country 3] in early 2016.

    -Birth certificate for the applicant, registered [in] April 2010 in Cox’s Bazaar (Extract of birth certificate, in Bengali with English translation, notarised on 21 April 2016).

    -National ID card.

    -Letter from [a] High School (Bengali with English translation), allowing the applicant to leave school; issued on 5 September 2010.

    -Father’s birth certificate, registered [in] April 2010, and nationality certificate.

    -Mother’s death certificate, notarised on 21 April 2016.

    -Sister’s death certificate ([December] 2004), notarised on 28 November 2016.

    -Sister’s birth certificate.

    §The applicant did not provide supporting documents to the Department, but submitted numerous documents to the Tribunal (unless otherwise indicated, in Bengali with poor quality English translations[3]). On 16 February 2022, the representative provided the Tribunal with a plain English summary of the key police and court documents.

    [3]

    -Police report (General Diary, GD) dated [March] 2002.

    -First Information Report (FIR) (undated).

    -Charge sheet dated [December] 2002.

    -General Diary (GD) lodged by [Mr B], dated [May] 2010

    -First Information Report (FIR) prepared [in] May 2010.

    -Arrest warrant dated [June] 2011.

    -Charge sheet (undated).

    -Criminal court verdict dated [October] 2017.

    §Supporting statements:

    -Letter from [Mr C], President, [Organisation 2], Ukhiya Upazila branch, dated [November] 2021.

    -Letter from [Mr A], [Official 1], [Buddhist organisation], [Village 1] (the applicant’s village), dated [December] 2021.

    -Letter from [Mr D], Advocate, Chittagong Bangladesh, dated 6 January 2022.

    -[Mr E], [Organisation 3], 13 July 2021; and [Mr F] (same organisation and date).

    §Photographs of damaged Buddhist places of worship, described as having been taken in the applicant’s locality.

    §The applicant attended a protection visa interview (‘Department interview’) on 25 November 2016. The Tribunal has listened to the audio recording, which is on the Department file.

    §The protection visa assessment (delegate’s decision record) of 28 November 2016, which is the subject of this review.

    §The application for review dated 2 February 2017, attached to which was a copy of the delegate’s decision record.

18. The Department file includes a Department Document Examination Report dated 6 September 2016, relating to the Indian passport that the applicant used. It states: ‘It is my opinion that this is a legitimately manufactured document, personalised in an appropriate manner with no alteration’.

19. The applicant appeared before the Tribunal at a hearing held over two sessions, on 18 January 2022 and 27 January 2022, to give evidence and present arguments. The hearing was conducted via videoconference, with the assistance of an interpreter in the Bengali and English languages. At the applicant’s request, the Tribunal provided an interpreter familiar with the Chittagonian accent/dialect of Bengali. The applicant’s representative, [Mr G], was present. During the hearing (during the course of discussion about the correspondence from the applicant’s lawyer in Bangladesh), the Tribunal alerted the applicant to his legal professional privilege in relation to communications between him and any legal advisor.

20. The applicant nominated as a witness [Mr A], but the Tribunal was unable to reach him.

21. The Tribunal has taken into account relevant aspects of the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report – Bangladesh, dated 22 August 2019, and has had regard to a range of other country information, details of which are recorded below.

    Non-disclosure certificate

22. On 6 December 2016, the Department issued a certificate under s.438(1)(a) stating that it is in the public interest not to disclose certain information contained in documents on the Department file [Reference]. The certificate stated that folios 58-60 contain information, the disclosure of which would be contrary to the public interest because they relate to ‘an internal working document and business affairs’. The certificate relates to the Department’s Document Examination Unit report on the applicant’s Indian passport.

23. The Tribunal formed the preliminary view that the certificate was not valid, as it did not specify a reason that could form the basis for a claim to public interest immunity.[4] The Department subsequently revoked the non-disclosure certificate and decided that a new certificate was not required. The Tribunal wrote to the applicant to alert him to the existence of the now-revoked certificate, and the information that was relevant to his protection claims. Neither the applicant nor the representative made substantive comments in response.

    [4] The Tribunal has regard to the Federal Court’s decision in MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    Receiving country

24. The applicant claims that he is a Bangladesh national, even though he obtained an Indian passport in 2011 and used it for travel to [Country 2] in 2013, and South East Asia and Australia in 2016. He claims that the Indian passport was issued in the name of a different person, and he obtained it fraudulently.

25. The applicant speaks Bengali (Bangla), which is used in Bangladesh as well as eastern India (the state of West Bengal). At hearing, he demonstrated his familiarity with the Chittagonian dialect of Bengali, the geography of Chittagong District and aspects of life in Bangladesh, including the national anthem. All of these factors are consistent with his claim to be a Bangladesh citizen. The applicant also produced copies of a Bangladesh birth certificate and National Identity (NID) card in his name; a letter from a local high school; and Bangladesh documents relating to other family members. Given the applicant’s reliance on agents who have engaged in fraudulent migration practices, and country information about the prevalence of document fraud in Bangladesh (including in relation to birth certificates)[5], the Tribunal is reluctant to accept any of these documents at face value. However, a closer examination of the NID cards of the applicant and his family members, including the composition of the 17-digit codes (which reveal the year of birth, the location of the card holder, and the serial number of the NID application form), suggest that these are genuine documents. Taking all these factors into account, the Tribunal accepts that the applicant is a Bangladesh national, as claimed.

    [5] For instance, in its most recent Country Information Report -Bangladesh dated 22 August 2019, DFAT noted its understanding ‘that people are still able to apply for birth certificates without any supporting documentation (in cases where people have lost their original birth certificate or have never been in possession of one), and there is a high prevalence of document fraud in relation to birth certificates.’

26. In relation to the Indian passport in the name of [Alias], the applicant has consistently claimed that he paid a ‘broker’ to obtain the passport, using a false name and date of birth. The Department assessed the passport to be a genuine document that had not been altered. As discussed at hearing, country information indicates that, while Indian passports contain security features, the use of non-genuine source documents to obtain a genuine passport is an issue. DFAT noted this in its most recent country information report on India,[6] concluding: ‘As such, the Indian passport is not conclusive evidence of an individual’s identity as it is possible fraudulent base documents to obtain a genuine passport’. Given the applicant’s account of how he came to obtain an Indian passport and in light of country information, the Tribunal finds that his real name is [the applicant], and he holds only Bangladesh citizenship.

    [6] DFAT, Country Information Report – India, December 2020, paragraph 5.58.

27. Bangladesh is therefore the receiving country for the purpose of assessing the applicant’s protection claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Assessment of facts

28. The Tribunal must make findings of fact as a basis for assessing Australia’s protection obligations. It is mindful of the principles that apply in fact-finding generally, and assessments of credibility.

29. The Full Federal Court in AVQ15[7] observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] However, it is also well-established that the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is it required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[9] The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility in evaluating the applicant’s evidence as a whole.

    [7] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

    [8] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor

30. The submission of 11 January 2022 emphasises the need for an ‘open, fair and generous decision making process, particularly with respect to assessments of credibility’  and quotes two principles: The first is that the claimant's testimony should be presumed to be true and second, the claimant should be given the benefit of the doubt once his general credibility has been accepted.’ 

31. The Tribunal accepts that the applicant based his protection claims in part on his background, growing up in a Buddhist community in eastern Bangladesh, and then spending ten years in India and other countries seeking a basis for permanent residency. Beyond this, however, it found inconsistencies, anomalies and gaps in his evidence, and often sensed that he was not speaking with candour and from personal experience. The Tribunal addresses these in detail in the assessment below.

32. The Tribunal takes into account that persons fleeing persecution or significant harm may need to rely on unorthodox means to reach safety, including the use of agents and false documents. A striking feature of the present case is the extent of the applicant’s reliance on a network of Buddhist contacts to secure his travel and migration plans. Some examples of this serve to illustrate the scope of such assistance: (a) the applicant’s departure from Bangladesh to join a Buddhist monk and relative in Kolkata, who quickly ordained him as a monk to make his stay in India more secure; (b) another monk referring him to an agent who arranged the fraudulent Indian passport; and (c) another monk who helped the applicant get a visa for [Country 2], in return for the applicant paying his (the monk’s) travel costs. On his return to India, the applicant claims to have paid two agents who failed to obtain visas for Europe. He then engaged another who arranged visits to [Country 3], [Country 4], [Country 5], [Country 7] and [Country 6], prior to making his successful visitor visa application for Australia. Even after the applicant’s arrival in Australia, he claims that he contacted a friend in his home area, who put him in contact with another person (presumably with English and legal skills) to help him complete the protection visa application form.

1. The Tribunal accepts that these arrangements and travel are potentially consistent with, and support, the applicant’s claim that he is at risk of persecution or significant harm in Bangladesh, and is desperate to find permanent residency in a safe place. However, it is unsettled by the applicant’s lack of candour about his activities in India (in particular, how he funded his travel); and the network of contacts (including Buddhist monks and agents) who have assisted him. For instance, there is friction between his claim that it is unsafe for Barua in Bangladesh on the one hand, with his continued reliance on Barua in his home area, such as his lawyer and the people who helped him complete his protection visa application.

2. The Tribunal alerted the applicant to the prevalence of document fraud in Bangladesh, noting his own evidence (which the Tribunal accepts) that he entered Australia on a fraudulently obtained Indian passport. In its August 2019 country information report, DFAT noted that, despite the increasing use of biometric data collection, ‘the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given the civil documentation is generally held by local issuing offices in paper-based files without networked systems’.[10] The report confirmed that this also applies to court and police documents, concluding that ‘fraudulent court documents, or court documents that are obtained fraudulently, are relatively common on Bangladesh’.[11]

   [10] DFAT, Country information report – Bangladesh, August 2019, para. 5.39.

   [11] Ibid, para 5.44.

3. To be clear, the Tribunal draws no adverse inferences from the applicant’s reliance on various agents, or country information about document fraud, in isolation. However, these factors require it to examine closely the substance of the applicant’s protection claims, and the supporting documentary evidence. In addition to its general credibility concerns, the Tribunal found the applicant’s evidence about the source and transmission of the police and court documents that he relied to be unsatisfactory.

4. Overall, the Tribunal is concerned that the applicant has based his protection claims in part on his personal background and experiences, and general country information, but the claims and evidence he has presented are of low reliability. The Tribunal’s detailed assessment is below.

   Family background

5. The applicant claims that his grandfather had a large landholding and was ‘financially progressive’; and that his father inherited the land. [Mr A] (the head of a [Buddhist organisation]) in the village, who the applicant also nominated as a witness) described it as a ‘Bangladeshi Buddhist aristocratic family’. At hearing, the applicant did not know what the reference to ‘aristocratic’ meant, but said that his grandfather had in the past donated land for a Buddhist temple and a college. The Tribunal accepts from this that the applicant’s family had some local standing, particularly in the Buddhist community. It notes that the continued presence in the village of a Buddhist centre, [Mr A]’s support for this application, and the applicant’s advice that his sister still manages the family’s remaining land (which appears to be rented out to farmers) all suggest that the family have a lasting presence and/or legacy in the area.

   Discrimination and targeting

6. The applicant made broad claims that in Cox’s Bazaar district and Ukhiya, local minorities were subject to ongoing mistreatment, including land dispossession, theft of cattle and crops, unlawful collection of levies, and kidnapping and ransom. He described the area as a stronghold of the JeI, who work closely with the (now opposition) Bangladesh Nationalist Party (BNP), and who have allowed Rohingya refugees to engage in terrorist activities against local minorities.

7. Throughout this application, the applicant has variously referred to his family’s Muslim adversaries by reference to them as neighbours (who were looking to seize their land), their criminal tendencies (as members of a gang, or ‘hooligans’), as ‘terrorists’, and in terms of their political allegiance to the JeI. General country information about land seizures in Bangladesh and the political culture (where party politics, local networks and criminal activities may overlap) leads the Tribunal to conclude that the applicant is referring to a group of local Muslim activists, rather than Islamists or terrorists in general.

8. The applicant gave information about the ongoing seizure of small parcels of land, from 1990. He named Muslim neighbours, many with political links, with details of their land grabs. Three seized about one acre in 1990; another two seized 0.6 acres after that; and another three (including president of the JeI’s Ukhiya branch) seized 1.3 acres near the family home. By around 1993/1994, they had built a mosque on this land.

9. The applicant presented a ‘certificate’ from [Mr C], President of [Organisation 2] in Ukhiya, dated [November] 2021. In poor English, it appears to state that [Organisation 2] sought to mediate a dispute between the applicant’s father and other parties, whom he described as ‘blind local Muslims’. The latter refused to participate. The letter then refers to death threats and politically motivated false charges that allegedly prompted the applicant to flee Bangladesh. The letter is vague as to the contents or timing of any dispute, despite it having been prepared recently and for the purpose of this application. The Tribunal accepts that it may refer to a land dispute, rather than the (claimed, later) killing of any of the applicant’s relatives. Given broader concerns about the provenance and authenticity of this letter, the Tribunal places minimal weight on it as evidence either of a land dispute, or the circumstances of the applicant’s departure from Bangladesh.

10. The Tribunal accepts that land seizures as described in the applicant’s claims do occur, including for personal gain and/or the construction of mosques. These claimed land grabs took place almost thirty years ago, and the alleged perpetrators in 1993 were political figures (not neighbours as such). The Tribunal accepts that there is a mosque in the applicant’s village (just as there is a Buddhist centre), but has insufficient evidence as to when it was constructed and/or whether it is on land directly adjacent to the applicant’s family ‘homestead’. The fact that the applicant’s family continues to own and operate farmland in the village, even after his father’s death in 2019, casts doubt on these claimed past land seizures, and local Muslims’ ability to do so with impunity.

    Murder of the applicant’s mother in March 2002

11. The applicant claims that [in] March 2002, Muslims led by a notorious local terrorist named [Mr H] started erecting a fence between the family home and some adjoining land, in another land grab. The applicant’s father tried to defend the property, and was assaulted. When the applicant’s mother intervened, the attackers struck her on the head and then ran away. Neighbours rushed her to the hospital, but she died later in the morning.

12. The applicant’s father filed a complaint alleging murder. The police, afraid of pursuing a case against the powerful [Mr H] gang, took no action. Nonetheless, [Mr H] and his associates have pursued the applicant’s father and his family over a prolonged period, demanding that they withdraw the case, whilst continuing to threaten and to steal more property.

13. The applicant presented to the Department a death certificate for his mother, notarised on 21 April 2016, certifying that the date of death according to the death register, was [March] 2002. It does not state a cause of death.

14. The applicant presented to the Tribunal further documents relating to the father’s complaint. These are transcripts in Bengali, with poor English translations, attested and notarised on 28 November 2016 (the date of the delegate’s decision record). The submission of 16 February 2022 includes better English summaries of these documents.

    §  A complaint (General Diary) lodged by the applicant’s father [in] March 2002. This alleges that on the morning of [date] March 2002, three Muslim extremists[12], [Mr I],[13] [Mr J] and [Mr H] tried to seize land. When the applicant’s father resisted, they attacked him. When the applicant’s mother tried to intervene, they attacked her. When she fell to the ground, they fled the scene. She died later that morning in hospital. The statement emphasises that this was an attack by Muslims on the father as ‘a person of minor Buddhist communities’. The Ukhiya police took the body for a post-mortem.

    §  A First Information Report (FIR) prepared [in] March 2002, relating to the complaint of [date] March 2002.

    §  A Charge Sheet dated [December] 2002, in which the officer records that the three accused are Islamic extremists and businessmen, leaders of the JeI and BNP. It describes their attack on the applicant’s father, and the death of his mother due to bleeding following a head injury. The sheet nominates ten witnesses, including the applicant and his father. The sheet states that the police arrested the accused and held them on remand.

    [12] Described as Muslim extremists, leaders and workers of the JeI and BNP.

    [13] Also spelt [Alternative spelling], due to transliteration from Bengali.

15. At hearing, the applicant said that his father had obtained these documents for him, through a lawyer, after the applicant became aware that he needed them for his case (his protection visa application). In response to the Tribunal’s questions, he said that there had been media reports of the killing, but he did not have these.

16. The Tribunal notes that [Mr A], [Official 1] of the local [Buddhist organisation], referred to the killing in his letter of 5 December 2021, and offered to give oral evidence (although, as noted above, the Tribunal was unable to reach him).

17. The Tribunal accepts as plausible that the applicant’s mother died in 2002, as indicated on her death certificate. However, it has a number of concerns about the applicant’s claim that she was murdered by local Muslims.

    §  First, it is difficult to imagine the scenario as described by the applicant and in the documents, i.e. that three Muslim men attacked the applicant’s father; that his mother intervened; and that the three men then run away after she falls to the ground.

    §  Second, the applicant relies on purported transcripts of police and court documents that were prepared only in November 2016. There is no copy of the original documents, and little information about how the transcripts were obtained and forwarded to the applicant. The applicant’s past reliance on fraudulent documents, in Bangladesh and India, suggests that he has the connections, resources and willingness to obtain and use such documents. In these circumstances, the Tribunal places no weight on these documents as independent corroboration for the claim that Muslim neighbours (‘extremists’) murdered the applicant’s mother in 2002.

    §  Third, [Mr A], the head of a training and mediation centre in the applicant’s village, wrote about the killing in a letter of 5 December 2021, and offered to give oral evidence at hearing. The letter was clearly written to support this application, and indicates that the Buddhist centre is located (and continues to operate) in the applicant’s village. At hearing, the applicant indicated that his father had donated land for a temple and college in the village. All this suggests that [Mr A] is closely linked with the applicant’s family. The Tribunal places limited weight on his letter, and his willingness to give oral evidence, as independent corroboration of the claimed murder of the applicant’s mother.

18. The Tribunal asked the applicant about his father’s lodgement of a case against the three men accused of killing his mother, as evidenced by the purported police and court documents. He said that the police are closely linked to the JeI and BNP, and did not act on his father’s complaint. He nonetheless thought that the case was still on foot, but was not sure. The applicant’s uncertainty is odd, given the centrality of this murder case to his protection claims (i.e., the applicant’s belief that these charges motivated the accused to pursue him, and lay their own (false) murder charges against him).

19. The Tribunal asked whether, in the absence of police action, he and his family had brought the killing to the attention of others, such as the Awami League (AL, which is now in government nationally), Buddhist leaders or other groups. The applicant replied vaguely that he thought the Buddhist community had filed a case, but conditions were not favourable. He believed that the case against the Muslim men still exists (but implied that it was inactive). The Tribunal formed the impression that he had not really thought through these matters, and was not speaking from direct experience.

20. Given the above observations and concerns, the Tribunal does not accept at face value that local Muslim men murdered the applicant’s mother in 2002; or that the applicant’s father lodged a complaint that resulted in murder charges against three local Muslims.

21. It now considers developments in the subsequent years, before reaching firm conclusions.

    Developments from 2002 to 2010

22. 2004: Death of sister: The applicant claimed that [in] December 2004, Muslim students attending the mosque built on the family land had an argument with his father, and two sisters (who were married, and visiting the family home). One of the students pushed his elder sister [to] the ground. She suffered injuries, and died in hospital two weeks later. The applicant produced a death certificate indicating that his elder sister died on [date] December 2004.

23. The applicant claimed that his brother-in-law wanted to lodge charges, but his (the applicant’s) father dissuaded him, given the lack of assistance the authorities had provided after the mother’s killing, and the risk of added threats and harassment.

24. At hearing, the applicant described this incident in terms broadly consistent with the written statement, and spoke in general terms about the family’s inability to seek protection, as this would have been futile and perhaps risky. His comments were generally vague, and the Tribunal formed the impression that he was blurring this incident with the earlier claimed killing of his mother.

25. The Tribunal accepts as plausible that the applicant’s [sister] died in 2004. However, the applicant’s account of this was vague and confused. The Tribunal does not accept at face value that Muslim neighbours had any involvement in her death.

26. Circumstances in Ukhiya up to 2010: The applicant’s and his family’s continued residence and activities in Ukhiya reinforce the Tribunal’s concerns about the alleged killings in 2002 and 2004.

27. At hearing, the applicant said that he started an apprenticeship in 1999 and worked as [an Occupation 1] up to 2006, when he opened his own [shop], leasing premises [and] buying equipment to [do his work].  After he left Bangladesh in 2010 (allegedly in the wake of false murder charges), his father sold the contents of the shop. The Tribunal finds nothing in these circumstances to suggest that local Muslims had targeted the applicant or his family, including the killing of two family members. Rather, they suggest he had vocational and employment opportunities, successfully ran a business, and continued to have access to his property after his departure for India.

28. Other circumstances – such as his father’s residence in the family home until his death in 2019, without major incident; the family’s ownership of at least some land to this day; and the continued operation of a Buddhist centre in the applicant’s village – all reinforce the Tribunal’s view that local Muslims did not target the applicant and his family at all.

29. In his post-hearing statement, the applicant drew a distinction between his father’s circumstances and his own (i.e., if he were to return to Bangladesh). His father was old and, although he had filed a complaint about the killing of the applicant’s mother, it is the applicant who wants to actively pursue the case. The Tribunal is not satisfied that this adequately explains the father’s ability to remain in the village, despite being the complainant and main witness in the murder case, and to maintain contact (and according to the applicant, some financial support) for the applicant after 2010.

30. Taking all these concerns together, the Tribunal does not accept that the applicant and his family came under intense pressure from local Muslims (or ‘extremists’) attempting to seize parts or all of the land (even though this is a recurrent problem in Bangladesh); that they murdered the applicant’s mother; that they also caused the death of his sister; or that the applicant’s father filed murder charges. The Tribunal also does not accept that the accused Muslims (despite police and court inaction over the now-rejected criminal charges) were motivated to pursue the applicant and his family, through intimidation, theft or similar actions.

    False murder charges

    The killing of a BJI member in Ukhiya

31. The applicant claims that [in] May 2010, at around [time], BJI and AL activists clashed during a political [procession] ‘not far from [his] shop’. The applicant, like other local shopkeepers, had to close the shop. The Tribunal notes that this is a commonplace precaution during general strikes (hartals) and political protests, due to the risk of mob violence, including physical harm and property damage. During the fighting, AL activists killed a BJI member, [Mr K].

32. The applicant claims that the following day, [date] May 2010, [Mr I] (one of the men accused of killing the applicant’s mother) came to his shop with some other men, demanding that the applicant present as an eyewitness to the killing of [Mr K]. [Mr I] threatened to kill the applicant if he refused. The applicant believed that [Mr I] was targeting him because of the pending murder charges relating to the applicant’s mother, i.e., that this was related to the ongoing harassment and threats his family had experienced.

33. At hearing, the applicant recalled that [Mr I] and his men came to his shop in the early afternoon of [date] May 2010 (around 2:00pm). He responded to [Mr I’s] and his men’s request by raising his hand, to emphasise that he did not see what happened to [Mr K]. The applicant said that, after they left, he closed and left the shop, and never returned. Asked what happened to the shop and its contents – for instance, the equipment and any [products] - the applicant replied that his father later returned and they arranged to sell the contents. There is no claim or evidence of [Mr I] and his men returning to the shop or pursuing the applicant’s family, in relation to the events of [date] May 2010.

34. The Tribunal had difficulty confirming with the applicant the exact location of the protest and killing in relation to his shop; and whether there might have been any other factors (apart from the claimed link with [Mr I] having been charged with his mother’s killing in 2002) to explain their unexpected pursuit of him.

35. The Tribunal put to the applicant that the purported First Information Report (FIR) that he had submitted stated that [Mr I] had lodged his complaint about the applicant (the allegation that he was involved in the murder of [Mr K]) at 8:30am on [date] May 2010, in other words, some five hours before he allegedly went to the applicant’s shop. This could raise doubts about the truthfulness of his claims, and/or the authenticity of the documents he relied on. The applicant replied briefly that he had not checked the FIR. The representative observed that ‘they’ (i.e. persons lodging false claims) can ‘do anything’. The Tribunal accepts that record-keeping in Bangladesh may include clerical errors and other mistakes, and that it would be inappropriate to place much weight on an individual discrepancy. However, it is the applicant’s claim that [Mr I] confronted him on the afternoon of [date] May 2010, and (by implication) it was only after the applicant’s refusal to give evidence that [Mr I] had cause to go to the police and lay false charges. Indeed, it would have made no sense for [Mr I] to make false allegations against the applicant in the morning, only to press him to present as an eyewitness to a different crime later that day. In the Tribunal’s view, the time and date recorded in the purported FIR cast doubt both on the applicant’s claim that [Mr I] approached him on [date] May 2010 and on the authenticity of the purported FIR transcript itself.   

1. The applicant had no corroborative evidence about the violence in Ukhiya on that day, any killing or subsequent criminal charges.

   The applicant’s ‘flight’ from Bangladesh

2. The applicant claims he believed [Mr I’s] threats to be credible, and immediately fled his home area. He went to the house of a maternal relative in [Village 2]. (According to Google Maps, this is some [distance] north of Ukhiya, near the coastal city of Cox’s Bazaar.) Three days later, the applicant’s sister told him that the police had come to the family home looking for him, in relation to [Mr K]’s murder. The applicant realised immediately that [Mr I] was responsible for this false allegation, and decided to flee Bangladesh.

3. The Tribunal notes that on Form 866C (protection visa application, ‘Personal details for each person included in this application’), the applicant stated that [in] October 2010, he was falsely convicted of murder. The statement of 11 May 2016 also reflects this: ‘They informed my father that I was a convicted person in the murder case of [Mr K]’. Clearly this is at odds with the applicant’s later claims, i.e. that he was charged in 2016 and only convicted much later. This may reflect some lack of familiarity with criminal procedure and/or translation, and the Tribunal draws no adverse inferences from this.

4. The applicant claimed he had a relative living in a Buddhist monastery in Kolkata, India, and left ‘home’ (implicitly, Cox’s Bazaar district) [in] May 2010. [In] June 2010, he managed to cross the Benapole land border, on foot, with the help of a broker. Later that day, he arrived at the Buddhist monastery in Kolkata.[14] The applicant gave some further details at hearing, indicating that his maternal uncle had accompanied him from [Village 2] to Cox’s Bazaar; that he travelled by van to Chittagong, where he spent five days; and he then went to Benapole, where he found a people smuggler who assisted him to cross the border.

   [14] According to Google Maps, the Benapole border crossing is about 85km, or 2 hours 45 minutes by land transport, from Kolkata.

5. The applicant has consistently claimed that he fled Bangladesh without a passport or other documentation. The Tribunal observed, however, that he had produced birth certificates for himself and his father, both showing their registration [in] April 2010, with successive registration numbers (the applicant’s ending in […360], and his father’s in […361]). The Tribunal considered this potentially relevant, as the birth certificates are required for passport applications. In other words, this could indicate that the applicant departed Bangladesh on a passport and in an orderly manner, rather than in response to threats in May 2010. At hearing and in the post-hearing submission, the applicant explained that there had been a local birth registration drive (door-to-door campaign) at the time, and it was coincidental that this had occurred just weeks before his departure. After the hearing, he provided a copy of his sister’s birth certificate, which ends in […362].

6. The Tribunal has a number of concerns about the claimed events in May 2010, and the applicant’s departure from Bangladesh.

   §  The applicant’s suggestion that [Mr I] targeted him because of the criminal charges that his father had brought against him is, in the Tribunal’s view, speculative and weak. The death had been eight years earlier; there had been no actual court proceedings; and, according to the applicant, [Mr I] and his associates had acted with impunity. Hence, there is no obvious trigger as to why [Mr I] would act in 2010, or why he would target the applicant rather than his father. The Tribunal finds unconvincing the idea that, because [Mr K]’s death had occurred somewhere near the applicant’s shop, that might have prompted [Mr I] to settle an old score. Most significantly, however, having rejected the claims that [Mr I] and two others murdered the applicant’s mother, and were subject to criminal charges, the Tribunal does not accept the applicant’s account of why he thinks [Mr I] pursued him.

   §  The applicant’s claims relating to this period were generally vague and unsubstantiated. For instance, he did not appear to have looked for evidence of the alleged political violence in Ukhiya on that day, let alone news of [Mr K]’s death or subsequent events.

   §  The applicant’s account of his arrangements and movements during this period was also guarded, and the Tribunal does not accept at face value that he acted in response to credible threats from [Mr I] or other thugs. Although the applicant claimed that he ‘abandoned’ his shop in the wake of [Mr I]’s threats, there is no persuasive evidence of [Mr I] having followed up his demands (for instance, the applicant’s father managed to sell the contents of the shop, with no claims of [Mr I] having returned there or other looking for the applicant). The applicant’s account suggests, rather, that he and his father closed the business in an orderly manner.

   §  The Tribunal is not satisfied that the applicant’s decision to leave Bangladesh, his travel to the Indian border over a period of almost three weeks (via Ramu, Chittagong and then Benapole), and his arrangement of his financial affairs, reflect a genuine flight in response to threats from a local Muslim.

   §  Finally, the Tribunal cannot exclude the possibility that the applicant in fact departed Bangladesh on a passport in his own name, based on the identity papers that he and his father secured in late April 2021. However, it is unable to draw firm conclusions about this on the limited available information. It accepts as plausible that he entered India through the Benapole land border, with the assistance of an agent; and that he did not hold a Bangladesh passport.

7. Given the Tribunal’s previous adverse findings (in particular, that the applicant’s mother was not murdered) and taking into account the above concerns, it does not accept that [Mr I] and other Muslims confronted the applicant on 12 May 2010; that they demanded he give false evidence relating to the killing of [Mr K] the previous day; that they then pressed false murder charges against him; that the applicant went into hiding in [Village 2]; that the applicant later learned that he had been ‘charged’ (or ‘convicted’) of murder; or that he fled India in response to the threats and false criminal charges.

8. The Tribunal finds instead that none of these events occurred as described, but that the applicant left Bangladesh for reasons other than these (now-rejected) incidents. It accepts that Bangladesh’s political and economic conditions, as well as discrimination and sporadic violence against minorities, may also have influenced his decision to leave the country.

   Experiences in India and other countries – 2010 to 2016

9. The applicant’s statement of claims described his precarious situation in India, as an ‘undocumented’ Bangladeshi; his reliance on Buddhist monks and brokers to assist him obtain documentation and secure residency in India; and to undertake visits to [Country 2] and several south-east Asian countries. The key elements of this are:

   §  [In] June 2010 (eight days after arriving in India), the applicant was ordained as a Buddhist monk, as it was a safer means of ‘liv[ing] in India without a visa and passport’. Nonetheless, there remained the risk of being found during police checks.

   §  The applicant then went to [a location], where a monk introduced him to a broker who arranged a false Indian passport in the name of a different person. However, unable to speak Hindi or local dialects, the applicant remained fearful.

   §  In November 2012, the applicant’s father told him about anti-Buddhist violence in their local area, including the destruction by fire of the family home.

   §  In May 2013, he went to [Country 2]. A monk in Mumbai arranged a 3-month visa, in return for the applicant paying the monk’s travel costs to accompany him. The applicant managed to get a visa for 12 months but was unable to extend this. He returned to India, and continued looking for a place where he could live permanently and safely.

   §  He twice paid brokers to apply for European visas, but these did not eventuate. Eventually, a broker in Mumbai assisted him with a visa for Australia, after first visiting [Country 3], [Country 4] and [Country 5]; and later, [Country 7] and [Country 6].

10. At hearing, the applicant said that while in India, he engaged in monastic duties such as prayer, and did not undertake paid work or other activities. He received free accommodation and food, and obtained some money from donations. He also stated that he did not work in [Country 2], but only engaged in monastic duties.

11. The Tribunal asked about his major expenses such as the cost of the false Indian passport ([details deleted][15]); the costs for his and the other monk’s travel to [Country 2]; the agents’ fees for European visas (ca. [amount]); and his travel costs to Australia (ca. [amount]). The applicant’s responses were vague and evasive. He said that he brought some 400,000 Bangladesh taka (ca. $A6,170) with him from Bangladesh, later adding that his father also sent him money.

    [15] At current exchange rates, according to XE.com.

12. The Tribunal disbelieves the applicant’s claims about the purpose of his travel to India, and later [Country 2], and his activities there. It does not accept that he engaged only in unpaid monastic duties; and that he relied on donations, savings brought from Bangladesh and/or occasional funding from his father. (The Tribunal notes that, in any event, the suggestion that the applicant brought funds from Bangladesh and that his father was in a position to send him money, undermine his claims about the family’s dire circumstances in Bangladesh in particular after Muslim rioters allegedly burned their house down.) The applicant’s lack of candour suggests that he went to India and [Country 2] for economic or other purposes unrelated to his protection claims.

13. The Tribunal accepts as plausible the applicant’s account that he did not have permission to stay or work in India, and that he focused on efforts to secure visas and permanent residency for other countries, such as [Country 2], Europe and Australia. A striking feature of this account is the role of various Buddhist monks in helping him secure residency in India (for instance, ordaining him as a monk and introducing him to a broker who arranged the false passport); and in traveling abroad (for instance, the willingness of an Indian monk to assist his travel to [Country 2], in return for the payment of his own travel costs).

14. The applicant highlighted the anti-Buddhist violence that erupted in Ramu in September 2012, and its spread to his home. He claimed that in November 2012, his family informed him that Muslim extremists came to burn down the temple in the village, and also burned down the family home. The perpetrators were JeI terrorists, acting together with Rohingya terrorists. He linked the religious violence to a Facebook message that had antagonised Muslims.

15. The applicant submitted to the Tribunal a number of photographs showing burned homes and temples, including damaged Buddhist statues, broadly described as ‘photos of incident regarding attacks on our local Buddhist worship place[…]’. There are no annotations or further explanations. At hearing, the applicant confirmed his claim that the family home had been burned down, adding that his father had rebuilt it. He gave no details as to the source or transmission of the photographs. Although he mentioned that his father had to pay for the reconstruction of the house, there is no photographic or other evidence that clearly relates to the applicant’s village home.

16. There are many reports on the ‘Ramu violence’ in late 2012. According to DFAT, some 25,000 Islamists burned several Buddhist temples and about 50 Buddhist homes during protests against a Facebook posting by a Buddhist man that showed a desecrated Koran.[16] Although the violence started and was concentrated in Ramu upazila (sub-district), next  to Ukhiya, the Tribunal has found reports of six Buddhist temples and monasteries having been attacked in Ukhiya.[17] The mob violence was sparked by rumours and spread quickly. Local Buddhists complained about ineffective police responses, and there were allegations of the major parties (especially JeI) instigating the violence. The Cox’s Bazaar district administration implemented measures to contain the violence.

    [16] 'Bangladesh: Buddhist', MRG, 1 July 2018; 'DFAT Country Information Report Bangladesh', DFAT, 22 August 2019, 3.52

    [17]New Age Bangladesh, Mobs torch two more monasteries in Cox’s Bazaar, 2 October 2012:

17. The Tribunal accepts that the [Village 2] violence reinforced the Buddhist community’s concerns about the volatility of communal relations, and potential future flare-ups based on rumours. It accepts that the applicant, in India at the time, was also unnerved by these developments.

18. The applicant has provided photographs of burning and burnt-out structures, including homes and Buddhist temples. The photographs do not show a clear link to the applicant’s village, and their source is unclear. One of the images shows several untranslated Bengali language signs, although there is no damage evident in that image, and its relevance is not explained. The Tribunal also notes the mention in [Mr A]’s letter of the applicant’s home having been burned down on 29 September 2021. While the Tribunal notes [Mr A]’s willingness to give oral evidence, it places limited weight on his statements as independent corroboration of this claim.

19. Given the Tribunal’s adverse view of the applicant’s credibility, his family’s continued stay in Ukhiya and the paucity of reliable evidence about any violence in the applicant’s village or its immediate vicinity, the Tribunal does not accept that the Buddhist centre or any other Buddhist facilities in his village were vandalised, or that the family home was burned down.

20. The applicant visited [Country 2] from May 2013 to March 2014. His account strongly suggests that, working through Buddhist contacts and agents in India, he obtained a visa to [Country 2] on the pretext of participating in a monastery. The Tribunal does not accept that the [Village 2] violence in 2012 (or any possible impact on his family) was relevant to the applicant’s travel to [Country 2], or his stay there; or that he went there for religious purposes. It finds instead that he went there for economic or other reasons unrelated to his protection claims.

21. As noted in the delegate’s decision record, the applicant’s failure to seek protection in [Country 2] could raise questions about the applicant’s need for protection. At hearing, he merely commented that his maximum stay in [Country 2] would have been five years, implying that he did not know about the availability of protection in that country. Given the applicant’s access to agents engaged in passport and migration fraud, the Tribunal is sceptical that he did not know about protection in [Country 2], as a potential pathway to permanent residency. However, the Tribunal is unable to reach firm conclusions on this. It finds on the limited available material that the applicant went to [Country 2] to work, and that he returned to India when he was no longer able to stay and work in [Country 2] as originally planned.

    Criminal charges and conviction

22. The applicant’s original statement of claims, submitted on 30 May 2016, indicates that the applicant’s younger sister informed him (while he was still in Bangladesh) that the police had told his father that he (the applicant) ‘was a convicted person in the murder case’ of [Mr K]. Allowing for possible poor translation, or that the applicant’s relatives may be unfamiliar with criminal procedure, the Tribunal takes this to mean that he was subject to allegations or a charge of murder. There is nothing in the nine-page statement of claims to suggest that the applicant enquired about or was aware of any further developments in relation to these (claimed) false charges.

23. Having found that the applicant’s mother was not murdered in 2002 and that [Mr I] did not confront him in 2010, the Tribunal does not accept at face value that the applicant genuinely believes that anyone brought false murder charges against him.

24. The applicant presented new claims and supporting evidence during the course of this review.

25. The documents consist of Bengali transcripts (texts purportedly reflecting the content of court documents) with poor quality English translations. The representative provided summaries of these documents later in the review. They are:

    §  General Diary dated [date] May 2010, lodged by [Mr I]. This names the applicant as the fourth of seven persons alleged to have shot dead [Mr K], near Ukhiya [location].

    §  FIR dated [date] May 2010. This states that [Mr I] lodged the complaint at 8:30am on [date] May 2020, and reflects the contents of the General Diary entry.

    §  The Charge Sheet, which does not appear to have a date. This states that the seven accused are members of the (then ruling) AL, described as a ‘Hindu, Buddhist religious party’, who shot [Mr K] dead [in] May 2010. It names the applicant as one of three absconding accused.

    §  Document described as the ‘criminal court proceedings’ before the District and Session Court, Chittagong, which in fact appears to be a court verdict, dated [October] 2017. The translated text is difficult to follow, but it appears to state that the applicant has been convicted in absentia and sentenced to life imprisonment; and that a warrant for his arrest is issued.

    §  The applicant also submitted to the Tribunal a copy of an arrest warrant, dated [June] 2011, issued by the Magistrate of the Court of the Chief Judicial Magistrate in Cox’s Bazaar, in connection with the murder allegation. This document was also attested on 28 November 2016, and appears to be part of the bundle of documents that the applicant received after the delegate’s decision was made.

26. The applicant submitted a letter from Advocate [Mr D], dated 6 January 2022, characterised as being a ‘legal opinion’. Again, the translation is very poor. Under the heading ‘to whom it may concern’, [Mr D] confirms that he has acted on the applicant’s behalf during the criminal proceedings. He stated that he was unwell in the period from September to December 2016, and was therefore unable to send supporting evidence to the applicant to present to the Department delegate. The letter states that the applicant has been convicted, sentenced to life imprisonment and is now subject to an arrest warrant. It purportedly warns the applicant directly that, in addition to the murder conviction, he also faces risks from Muslim fundamentalists and from Rohingya refugees in the area. It goes on to express the hope that the Australian Government protects the applicant as a member of a ‘rejected, undeveloped Buddhist communit[y].’

27. There was discussion at hearing about the contents of these documents, and the applicant’s acquisition of them. The applicant said that he did not know the details about these documents, and had not made further enquiries. After he left Bangladesh, his father dealt with the criminal proceedings, through the lawyer, [Mr D]. Following his father’s death, the applicant engaged [Mr D] directly. Asked whether he had supporting evidence (such as a contract, payment, etc.), the applicant replied vaguely that he and [Mr D] made all their arrangements by telephone only.

28. In relation to the submission of the court documents only after the delegate’s decision, the applicant noted [Mr D]’s letter which explained that he had been unwell and therefore unable to send the documents to the applicant in time for the delegate’s decision. As for the arrest warrant, which the applicant did not submit until 17 January 2022, the applicant said that he had been unable to locate it. Given that the arrest warrant (that is, the purported copy of the original, the transcript and the translation) appears to have been attested on the same day as the other documents, namely 28 November 2016, the Tribunal accepts as plausible that the applicant had it in his possession earlier, but had simply overlooked it until recently.

1. Country information indicates that the laying of fictitious criminal charges against political opponents is commonplace in Bangladesh.[18] The purported charge sheet refers to the accused persons as leaders and workers of the (then opposition) AL reflects this.

   [18] For instance, East Asia Forum, 6 March 2018: ‘Democracy decaying in Bangladesh’, CXBB8A1DA31871

2. The Tribunal discussed with the applicant country information about the prevalence of document fraud, including the availability of court, police and other legal documents. Country information indicates that agents or middlemen may be used to obtain such documentation, and that it is facilitated by widespread corruption in the judicial system[19]. In the present case, the applicant’s account of how he obtained these documents, and the extent of his past reliance on brokers in Bangladesh and India (including to obtain fraudulently an Indian passport) reinforces the Tribunal’s concerns about these documents, i.e. the applicant’s capacity and willingness to engage in such practices for migration purposes.

   [19] See for instance, DFAT Country information Report – Bangladesh, para. 5.44.

3. As noted above, the applicant had not familiarised himself with the contents of the documents or the criminal proceedings themselves. At one level, it is understandable that persons subject to trumped-up charges may consider it futile to engage with the substance of such charges, particularly when they are abroad and do not have to face a court directly. However, the Tribunal also considers that even such persons would have an interest, particularly if they have engaged a lawyer, in knowing about the proceedings, whether there is any scope to address the charges, and the identity and fate of any co-accused persons. The applicant appeared not to have turned his mind to any of these issues, reinforcing the Tribunal’s doubts that he is in fact subject to any criminal charges at all.

4. The Tribunal found the applicant’s account of his father, and later himself, engaging [Mr D] to represent him in the matter, to be vague and unsubstantiated. [Mr D]’s letter does not appear to be a genuine communication with his client, but rather a text designed to support the applicant’s protection claims, by explaining why critical documents were not presented until after the Department interview. The applicant’s claim that all of his and [Mr D]’s other dealings have been conducted by telephone, i.e. without any paper trail, raises further doubts. The Tribunal finds [Mr D]’s letter to be of no probative value, as evidence that [Mr D] represented the applicant during a criminal trial or indeed that there are any such proceedings.

5. Taking all of these concerns together – and given its finding that his mother was murdered in 2002, or that anyone has an adverse interest in him for any other reason – the Tribunal places no weight on the documents as evidence of the applicant having been falsely charged and convicted of murder.

   Developments since 2016

6. The applicant arrived in Australia [in] April 2016. His statement of claims dated 11 May 2016 stated briefly[20] that, a few days after he left his hometown and while he was still in Bangladesh (hence, in May 2010), the police told his father that he was a ‘convicted’ person in the murder of [Mr K]. That prompted him to flee Bangladesh.

   [20] Paragraph 25

7. As discussed above, the applicant claims that the main development since his arrival in Australia was his conviction [in] October 2017 under section 302 of the Penal Code, and his sentencing in absentia to life imprisonment. Section 302 states: ‘However commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine’[21]. As noted at hearing, the substantive offence of murder is set out in s.300 of the Penal Code.

   [21] Government of the People’s Republic of Bangladesh website, Laws of Bangladesh, The Penal Code, 1860,  

8. For the reasons given above, the Tribunal does not accept that the applicant was subject to any false murder charges or associated criminal proceedings. It follows that the Tribunal does not accept that he has been convicted of any such offences, or sentenced to life imprisonment.

9. The applicant made general claims about Muslim fundamentalists in his area, ongoing threats to his family and their property, and the added pressure from Rohingya refugees in the area. The poorly translated letter from [Mr D] appears to refer to Rohingya settlements close to the applicant’s home village, and tension between them and local residents (the translation reads: ‘the sheltered Rohingya Muslims does not received the local peoples of Ukia PS by any way’ [sic].) The Tribunal notes that the applicant’s local area, Ukhiya, is home to Kutupalong refugee camp, one of the world’s largest. As noted in the August 2019 DFAT report[22] and other sources[23], Buddhists in the Cox’s Bazaar area registered strong concerns that local Muslims and displaced Rohingya would commit acts of vengeance against them as a result of the mistreatment of Rohingya in Buddhist-dominated Myanmar. However, the applicant has not presented clear claims or supporting evidence to indicate that his family or community have been subject to such targeting. The Tribunal finds on the available evidence that the applicant’s family and friends continue to live in Ukhiya and other areas of Cox’s Bazaar, and that they are not subject to any immediate threats from Islamist militants, political groups such as the JeI or the Muslim community as a whole. The Tribunal does not accept that the applicant has any genuine fears arising from any changes in Bangladesh since his arrival in Australia.

   [22] DFAT report, para 3.53

   [23] For instance, 'International Religious Freedom Report for 2019: Bangladesh', USDOS, 10 June 2020, p.10.

   Assessment – Refugee Criterion

10. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct and relevant country information, he has a well-founded fear of persecution for any reason set out in s.5J(1) of the Act, on his return to Bangladesh, now or in the reasonably foreseeable future.

11. The Tribunal has found that the applicant is a Barua Buddhist from a reasonably well-off family; that he may have experienced or witnessed some discrimination in the past; and that he will be aware of and unsettled by sporadic communal violence, including in his district. It does not accept, however, that he or his family have been the direct targets of such violence, or that he has been falsely charged and convicted in absentia of murder.

12. Asked about his future plans if he were to return to Bangladesh, the applicant replied that he cannot safely live in any part of the country; he would not be drawn on his options if he were to go back. The Tribunal proceeds on the basis that he would most likely return to Ukhiya, initially, as he has family and social contacts, and some property, there. The Tribunal is not aware of any legal or practical barriers to him moving to another area in Bangladesh, if for instance, he decides not to settle back into his local area (for instance, if he prefers to live in a large city, after many years abroad). In this context, it notes that the Barua community is well-integrated into Bangladesh society. The Tribunal does not accept that any such decision to live in another part of Cox’s Bazaar district, Chittagong division or Bangladesh as a whole would be in response to localised threats, or in order to evade any nationwide pursuit of him.

13. The applicant’s absence of over ten years from Bangladesh is obviously a factor in assessing his prospects on return. However, it appears that he has had ongoing contacts with local people in Ukhiya (for instance, the individuals who helped him complete his Australian protection visa application form), and that he would therefore have some social network to assist him if he returned to Ukhiya. Also, to the extent that there may be ongoing issues relating to his family property, the Tribunal notes that the applicant’s sister has taken care of these in recent years, and he would therefore be in a position to decide with her whether to continue this.

    Claims linked with past events in Bangladesh (including claimed criminal conviction)

14. For the reasons stated above, the Tribunal does not accept that the applicant was falsely charged with the murder of a Jamaat-e Islami activist, convicted in absentia, and sentenced to life imprisonment. The Tribunal does not accept that the Bangladesh authorities have any adverse interest in him, in relation to any criminal charges, or for any other reason.

15. The Tribunal also does not accept that local Muslims, including the persons named by the applicant in his statements, have any ongoing adverse interest in him, including for any reasons associated with his mother’s death in 2002, his sister’s death in 2004, any land dispute or for any other reason. The Tribunal places weight on the continued residence of the applicant’s father in the family house, until his death in 2019, and his sister’s continued supervision of the remaining family land. The Tribunal does not accept the applicant’s claims that the Muslims are angered with him, in particular because he refused to be an eyewitness in a murder case; or that he has unfinished business with them.

16. In his statement of 10 February 2022, the applicant stated his intention to seek justice for the murder of his mother in 2002, stating that he has ‘the courage, determination, willingness and financial capacity to pursue the matter to seek justice’. In doing so, he drew a distinction between his father’s situation while he was alive. In light of the above findings, in the absence of persuasive evidence that he has taken any legal steps in recent years and taking into account its adverse view of his credibility as a whole, the Tribunal disbelieves this claim and does not accept that the applicant has any such plans.

    Discrimination and religious violence

17. The applicant also presented claims, conveyed indirectly through the (purported) letter from his lawyer [Mr D] and the submissions with country information, that he has a well-founded fear of persecution as a member of the Buddhist community (the ‘rejected, undeveloped Buddhist communities, in [Mr D]’s translated text). The Tribunal understands the applicant’s contention to be that he is at risk of persecution, including discrimination and violence, at the hands of the Muslim community at large, local aggressors and strongmen (such as those referred to in his claims), officials and Muslim extremists.

    Country information

18. The applicant and the representative submitted a large volume of country information. Essentially, they contended that recent country information indicates it is unsafe for (implicitly all) minorities in Bangladesh, and that, considered together with his personal and family history (which the Tribunal has he largely rejected) and local conditions in Ukhiya, he faces a real chance of persecution.

19. The Tribunal has had regard to country information set out in DFAT’s most recent country report on Bangladesh,[24] mindful that it was published more than two-and-a-half years ago, and that updated information is therefore important. There was detailed discussion of country information at hearing, and the Tribunal received submissions addressing societal and official violence, as well as the specific risks from what the applicant called ‘a continuous escalation of violence due to Islamic extremism in Bangladesh’.

    [24] DFAT, Country Information Report – Bangladesh, 22 August 2019

20. The 2019 DFAT report notes the homogenous nature of Bangladesh society, in terms of Bengali race (98 per cent) and religion, with about 89 per cent of the population being Muslim. The Constitution holds that Islam is the state religion, but commits the state to ensuring equal status and equal rights for all religion, with specific mention of Hinduism, Buddhism and Christianity.[25] It adds, however, that ethnic and religious minorities are subject to varying degrees of societal and official discrimination, and sporadic physical violence.

    [25] DFAT, Country Information Report – Bangladesh, 22 August 2019, para. 3.27.

21. The numerous articles submitted by the applicant was a copy of the US State Department’s 2020 Report on International Religious Freedom in Bangladesh[26], with underlined text stating: ‘The Bangladesh Hindu Buddhist Christian Unit Council (BHBCUC) said communal violence against minorities continued throughout the year, including during the COVID-19 pandemic. There was also an incomplete copy of November 2021 article in The Economist, entitled ‘Bangladesh’s religious minorities are under attack’.[27] This article describes recent anti-Hindu violence, and makes general points about the treatment of minorities.

    §   In mid-October 2021, a rumour that some Hindus in Cumilla[28] had defiled the Koran spread quickly on social media, leading to anti-Hindu protests, violence and property damage across the country. This led to at least three deaths.

    §   The article quotes a Western Sydney University academic who observed that, despite the ruling Awami League’s formal secularism, ‘rising Islamic conservatism has made religious minorities feel insecure’. It also quotes the advocacy group Bangladesh Hindu-Buddhist-Christian Unity Parishad (BHBCUP) as criticising the government for flirting with Islamist groups and failing to prosecute those responsible for attacks. The article goes on to acknowledge the Prime Minister’s commitment to defend religious freedom and refers to the arrest of over 580 people.

    [26] US Department of State, May 12, 2021: 2020 Report on International Religious Freedom: Bangladesh,

    [27] The Economist, Bangladesh’s religious minorities are under attack, November 6, 2021:

    [28] A city of some 300,000 in eastern Bangladesh (some 300km north of Ukhiya, according to Google Maps).

22. The applicant also submitted a report from the Minority Rights Group, referring similarly to the protests and violence in November 2021 in many districts, including attacks on at least 80 Hindu shrines and, in Rangpur, arson attacks on Hindu homes. They attribute these in large part to the increasing politicisation of religion, poor governance and law enforcement, and general political discontent.

23. In the Tribunal’s view, the DFAT report and more recent analyses show that religious (and ethnic) discrimination persists in Bangladesh; that it sometimes fuels other disputes (in particular over land); and that this can lead to violence, usually at a local level. In some cases, such as in Ramu in 2012 and Cumilla in 2021, rumours and social media can fuel more widespread protests, and even instances of mob violence. Despite broad statements such as the Economist headline that religious minorities are ‘under attack’, the Tribunal finds that incidents of serious harm (including physical and property violence) are infrequent, mostly sporadic and localised, and are not systematic or prevalent. While it appreciates that this unsettles minority groups, it is not satisfied that societal or official  discrimination against minorities generally, and isolated violence, give rise to a real chance of the applicant facing serious harm at the hands of the Muslim majority.

    Discrimination and violence against Barua Buddhists

24. The Tribunal now assesses the applicant’s prospects, more specifically, as a Barua Buddhist. DFAT assessed in August 2019 that Buddhists ‘face a low risk of societal violence in the form of occasional localised incidents. Where these do occur, they are likely in the context of other events, such as communal disputes over land ownership and usage in the Chittagong Hill Tracts (CHT). Again, reports suggest that they are sporadic, and that religion (or ethnicity) tends to be a contributory factor rather than a direct cause.

25. As discussed at hearing, most reports on Buddhists address the indigenous peoples of the CHT, rather than the Barua who live mainly in the Chittagong plains areas. Country information indicates that the Barua constitute about 35 per cent of the Buddhist population in Bangladesh. They identify and are perceived as Bengali. In 2015, DFAT provided some comments on the employment and education of the Barua: ‘Most Barua reside near market centres in all three districts of CHT (Rangamati, Khagrachari, Bandarban). As traditional landowners working in agriculture or small business, the Barua are economically successful. According to contacts, there are a large number of well-educated Barua working in local non-governmental organisations and district-level administration.’[29] These comments are from 2016, and address the Barua living in the CHT. However, they reflect the Barua in Bangladesh as a whole, and there is nothing to suggest this has changed in recent years. In the present case, the applicant’s family background, education and business activities are consistent with this kind of profile.

    [29] Department of Foreign Affairs and Trade (Australia) 2016, DFAT – the Barua of Chittagong Hill Tracts, 4 October <CX6A26A6E10141>

26. The DFAT report also stated that there is ‘no clear evidence of any type of discrimination towards the Barua in Bangladesh, including in the CHT’. However, it goes on to note that ‘a portion of Barua believes that the Bangladesh Government discriminates against them, in the sense that they do not qualify for indigenous quote opportunities in education and government service’.[30] The submissions in this case tend to blur the distinction between the well-integrated Barua community on the one hand, and the CHT indigenous peoples (and other religious minorities) on the other. In the Tribunal’s view, they exaggerate the relevance to the applicant of general reports about the treatment of minorities, and, in particular, the treatment of the CHT indigenous Buddhists, and to this extent, are misleading.

    [30] Ibid.

27. Having regard to the country information as a whole, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Bangladesh, as a Barua Buddhist. While s.5J(1)(c) states that a well-founded fear of persecution requires that there is a real chance of persecution relating to all areas of a receiving country, local conditions are relevant to the Tribunal’s assessment, insofar as the Tribunal considers the applicant will return to his family and community in Ukhiya, at least in the short term.

28. As noted above, the 2012 violence in Ramu started some 25km from the applicant’s home, and spread to Ukhiya before being contained. The DFAT report and other sources note the dissatisfaction of the Ramu Buddhist community at the lack of ‘justice’ following the 2012 violence, but there is no persuasive evidence that local Buddhist communities in Cox’s Bazaar (including Ukhiya) have been subject to any sustained threats, or repeated instances of mob violence on that scale. The applicant also alluded to local conditions in Ukhiya, in particular the proximity to his village of the large Kutupalong refugee camp, which has seen a significant expansion due to the influx of Rohingya refugees from neighbouring Myanmar. This has had a large impact on local communities, including economically, from an environmental perspective and, as noted in the SATP report, on general security conditions (such as an upswing in reported crime). These factors affect general living conditions in Cox’s Bazaar, but the Tribunal is not satisfied that they result in the applicant facing a real chance of being persecuted for one or more of the reasons set out in s.5J(1).

29. The applicant also highlighted concerns that Muslims – namely Rohingya, Bengali Muslim sympathisers and associated political parties or fundamentalist groups – could target the Buddhist community, in revenge for events in Myanmar. The Tribunal is not satisfied on the available evidence that the Buddhist community’s concerns about this are well-founded (although it accepts as plausible that in some local disputes, Muslims may have used anti-Buddhist rhetoric). Moreover, as noted above, the Tribunal is not satisfied that the applicant has a genuine fear of persecution from these or any other local circumstances in Ukhiya and the surrounding area.

1. The Tribunal, having accepted that the applicant is a Buddhist, also accepts that he will wish to continue practicing if he returns to Bangladesh. He presented several letters from Bangladesh (such as [Mr A] and [Mr C]) and Australia (such as [Mr E], and [Mr F], both of [Organisation 3] in [Suburb]), which refer to his Buddhist adherence. [Mr E] referred to him as a religious person.

2. For the reasons set out above, the Tribunal disbelieves that the applicant participated only in (unpaid) monastic work in India and [Country 2]. The applicant’s evidence that he was ordained as a Buddhist monk shortly after arriving in Kolkata, as a means of securing residency in India, is consistent with the Tribunal’s broader impression that he has a limited, pragmatic approach to the religion. The Tribunal is satisfied, having regard also to country information about the Buddhist community in Cox’s Bazaar, the applicant’s contacts with senior Buddhists in Ukhiya and the continued operation of the meditation and training centre in his own village, that he will be able to continue practicing Buddhism if he returns to Bangladesh, and that he will not have to refrain from or modify his practice to avoid persecution.

   Islamic extremists and political groups linked with sectarian violence

3. The applicant also claimed to fear harm at the hands of Islamist extremists (implicitly over and above the individuals he claims targeted his family). He and his representative submitted a number of articles addressing the security threats posed by Islamic extremists in Bangladesh, contending that they are causing ‘continuous escalation of violence’ (as per the applicant’s statement of 11 January 2022).

4. During this application, the applicant identified his family’s Muslim opponents as members of the local JeI party and hooligans associated with them, noting that the JeI has a historical stronghold in Chittagong. He also variously referred to them as fundamentalists, terrorists and criminals. For the reasons stated above, the Tribunal has not accepted the applicant’s claims that such persons subjected him and his family to sustained adverse attention. The Tribunal now addresses the residual claim that Islamists (whether acting in a religious, political and/or criminal capacity) represent a threat to him if he returns to Ukhiya, and Bangladesh as a whole.

5. At hearing, the Tribunal noted recent reports of declining instances of Islamic extremist violence in Bangladesh. For instance, the South Asian Terrorism Portal (SATP) opined in its recent 2021 Bangladesh assessment[31] that while some Islamist groups remain a security threat, it is much reduced given the Bangladesh authorities’ aggressive steps to contain them. For instance, there was just one Islamist extremist-linked fatality in 2020. The SATP did identify ongoing concerns, such as the ‘acute security dilemma’ caused by crimes associated with the influx of Rohingya, particularly in the congested camps in Cox’s Bazar, and the ongoing threats from some Islamist groups, as well as funding support from radicalised Bangladeshis abroad. The Tribunal put to the applicant that the level of Islamic extremist activity in his area or Bangladesh did not suggest he faced a real chance of serious harm from such groups. The continued presence of family and friends in Ukhiya tends to support that.

   [31] South Asia Terrorism Portal (SATP): Bangladesh Assessment: 2021:

6. The applicant and his representative contended that the SATP and similar reports (including the most recent DFAT report) gave a skewed, out-of-date picture of the risk that Islamic extremists present to the applicant on his return.

7. First, the representative questioned the reliability of SATP as a source, given that it is based in India (as opposed to being an international or regional organisation) and its founder Kanwar Pal Singh Gill was a former Indian official accused of human rights abuses and violations.[32] To be clear, the Tribunal does not rely primarily on the SATP, as the representative suggests. Rather, it noted that the SATP assessment was recent, balanced and consistent with reporting over a period since 2016.

   [32] The representative attached a copy of a Wikipedia article about Kanwar Pal Singh Gill.

8. Second, the representative invited the Tribunal to place greater weight on other recent reporting, namely a number of articles that he submitted to the Tribunal. The articles include handwritten underlining of certain paragraphs or sentences. In relation to Islamic extremism, they include the following references:

   §   In mid-November 2021, there was a lone wolf terror attack in Dhaka’s diplomatic zone, reportedly by a Japanese linked to the terrorist group Ansar-al-Islam.

   §   The Taliban victory in Afghanistan in 2021 generated interest in Islamist groups on social media, with reports of Bangladeshis going to Afghanistan for training. According to one report, ‘analysts have started worrying that Jamaat-ul-Mujahideen Bangladesh (JMB), which has its roots in an earlier Afghan war, may once again grow in strength’. Self-radicalised pro-IS youth had caused ongoing concerns in the previous years.

9. The Tribunal has examined these articles closely. The incidents and developments they describe, including those in the second half of 2021, are consistent with the country information discussed at hearing. They show that Islamic extremism is an ongoing issue in Bangladesh, that isolated violent attacks occur, and that experts are monitoring extremists’ activities (such as organisational changes, foreign links and their methods of operation). Having regard to the overall security situation and the Bangladesh authorities’ response, the Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed by Islamic extremists (or any political or criminal groups acting with, or associated with them).

10. The applicant has not claimed, and there is nothing before the Tribunal to suggest, that he faces a real chance of persecution arising from the circumstances of his departure from Bangladesh (such as his claim to have left the country without a passport or other travel document), or as a failed asylum seeker.

11. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds that he does not face a real chance of serious harm amounting to persecution, for any reason set out in s.5J(1) of the Act, in Bangladesh, in the reasonably foreseeable future. He therefore does not meet s.36(2)(a).

    Assessment – Complementary Protection

12. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

13. The Tribunal accepts that the applicant is a Barua Buddhist, but for the reasons set out above, does not accept that he has been convicted of murder and sentenced to life imprisonment or that he has suffered significant harm of any other form. Implicit in the applicant’s claims is his concern about Bangladesh’s governance, its human rights records and its political and security environment. The Tribunal accepts that these concerns may have influenced his decision to leave Bangladesh in 2010, and his resolve to remain in Australia. However, such general conditions affect all Bangladesh citizens and, even to the extent that they may have a slightly greater impact on members of the Buddhist minority, they do not involve significant harm as defined in s.36(2A) and s.5(1).

14. The Tribunal refers to the findings of fact above, its assessment of the applicant’s future conduct, and any associated risk. Having regard to his circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

15. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. He therefore does not meet s.36(2)(aa).

    Overall conclusion

16. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

17. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    ATTACHMENT - CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

    Mandatory considerations

    In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    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.

    …

    
    

(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547