1620694 (Refugee)

[2020] AATA 5616

1620694 (Refugee) [2020] AATA 5616 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620694

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:25 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 25 November 2020 at 9:16am

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh – religion – Hindu –member of Hindu community – fears harm from the Bangladeshi Muslim extremist and Radical Groups – relocation not reasonable ­–applicant meets the complementary protection criterion – decision under review remitted  

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MZAKC v Minister for Immigration and Anor [2016] FCCA 834
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZSSM v Minister for Immigration and Anor [2013] FCCA 1489
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 28 April 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 30 October 2020 at 10am. The Tribunal was assisted by the use of an interpreter in the Bengali and English languages. The Tribunal took evidence from the applicant’s brother, [Mr A]. The applicant was represented in relation to the review by his registered migration agent.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – Bangladesh, 22 August 2019. The applicant’s migration agent indicated that he had a copy of this report.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant arrived in Australia by air [in] March 2016 and was immigration cleared. The applicant applied for the protection visa on 28 April 2016. The applicant states that he arrived in Australia via India, and that he travelled from Bangladesh into India illegally via an agent who took him through the Benapole border. The applicant writes that he did this due to his (and does not complete the sentence). Prior to visiting Australia, the applicant lived in India from [date] February 2014 until [date] March 2016 in order to hide out, and visited [Country 1] from [date] February 2015 until [date] February 2015 in order to use an illegal transit to Australia. The applicant visited his family in Bangladesh from [date] June 2015 until [date] June 2015, and [date] July 2015 until [date] August 2015.

12. The following information is apparent from the application for protection forms. The applicant was born on [date] in Dhaka, Bangladesh, and states that he also had a date of birth listed as [a different date]. The applicant is a Hindu who speaks, reads, and writes Bengali and speaks English. The applicant has never been married nor in a de facto relationship. The applicant’s father is deceased, and the applicant’s uncle, aunt, and one of his brothers live in Australia. The applicant’s mother, [some of his siblings] reside in Bangladesh, and the applicant is in infrequent contact with them by phone. The applicant lists one address in Bangladesh from birth until February 2014. The applicant lived in West Bengal, India from February 2014 until March 2016.

13. The applicant attended primary and secondary school from January 1999 until graduating from [a specified year] at [a] High School in December 2009. The applicant states that he worked as a [Occupation 1] in his family’s business from February 2006 until February 2014. The applicant has since been unemployed.

14. The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):

    I was persecuted by the Muslim Extremist along-with law enforcing agency (Police and Rapid Action Battalion), because of my my religious belief in Hinduism.

    I declare that I had been receiving continuous threat from the above mentioned Muslim fundamentalist religious groups, and received injury in my [Body part 1] (which can be recognisable by a scar now) and inside my ear due to their slap when they attacked me.

    Because of continuous threats to the members of Hindu community, and one incidental attack in my area and specifically on my family itself, I fled to India leaving my home, workplace (family business), family, friends and community only to save my life, as it was impossible to continue my life there because a serious and imminent threat from Muslim Extremist (Jamaat — e- Islami etc.) along-with law enforcing agency in Pakistan.

    The current situation in my area warrants that my life will be in serious danger if I return to my place, because of my attachment to Hindu religion.

    For this reason, I apply for shelter and protection (onshore protection) in Australia to save my life from the execution of radical militant groups.

    My Background History:

    I was born in an orthodox Hindu family at [address deleted] on [date]. I had my primary scholl completed and further up to [a specified year]. When I was admitted into [a specified year] I had to leave my school.

    I used to work in my family business and I am [Occupation 1] by profession. I am the son of [Mr B] and [Ms C].

    My nationality is Bangladeshi. My date of birth and place of birth and nationality would be verified from my school certificates, Bangladeshi passport (No [deleted]), which was given [in] 2013 in Dhaka Bangladesh and other documents. I have two sisters [Ms D] and [Ms E] ([Ms E’s new name]) and three brothers [Mr A] (Australian Citizen), [Mr F] and [Mr G].

    My family and I believe in Hinduism and value the concepts of Hinduism as our greatest treasure. But the facts of being Hindu in a Muslim country like Bangladesh has caused my family and relatives suffering through discriminations, tortures, persecution, despondency and destitution. Our village has [a small percentage] population of Hindu families and the rest are Muslims.

    My father ([Mr B]), [Occupation 1] by profession, is the active member of the local Hindu minority committee. We have a [shop] at [a] Bazzar. Our family overserves the rituals and religious duties of Hinduism earnestly. The reigning deity of [deleted] in Hinduism is god "[Deity 1]". At our home we have temple of god "[Deity 1]". From very early childhood I have seen my father and other brothers used to get up early, and after taking bath used to worship in the temple of god "[Deity 1]". Only after that he used to partake of any nourishment and started on his days' work. Every year on [date] (in the Hindu Bengali calendar), the celebration of god "[Deity 1]" was being performed at our family home with special arrangements.

    I myself and all of my bothers also devotee of god "[Deity 1]" and regularly follow the ritual of worshiping (puja) the deity. But, regrettably, on the yearly celebration day of god "[Deity 1]" some local Muslim fundamentalists assisted by Muslims came to our temple and seized my youngest sister [Ms E], who was [age] years old at that time, carried her away and raped her. After that they forcefully converted [Ms E] into accepting Islamic religion and coerced her to marry [Mr H], the son of local Jamat-E-Islami leader [Mr I], and also renamed her as [Ms E’s new name]. These Muslim fundamentalists had previously forbidden us many times to worship in Hindu method. But we did not stop our rituals and worshiping in in Hindu system heeding to their advice.

    While Bangali is my native language, I can speak very little in English language as well.

    I am never married in my life.

    Religion:

    I am a Hindu by religion, I belong to `[deleted]' caste in particular.

    Citizenship:

    I am a Bangladeshi Citizen by birth. I have an Indian passport which I managed through an agent in [India]. I spent [amount] Indian Rupees for this service. The passport No: [deleted].

    Profession:

    In Bangladesh, I was engaged in self-employed profession of [Occupation 1]. Basically I was helping my father in the business and this way I became a [Occupation 1].

    Problems/situation in Bangladesh:

    I have to describe my family's experience before I start my own situation in order to give a full picture of the situation:

    On that fateful [date] ([date]September 2006), Sunday, around [time]. in the evening, all our family members including all my brothers and friends were gathered at our temple for the worshiping of god "[Deity 1]", drums were beating, inside the Temple of "[Deity 1]" my mother and younger sister [Ms E] [preparing] the meal for offering to the god "[Deity 1]". All of a sudden, [Mr I] (a known person), [Mr H], [a named person] and many more known and unknown people thronged on use with various arms, [shouting] "Nare-Takber-Allah-Akbar" and coming to our temple stopped us from beating the drums.

    [Mr I] and his son [Mr H] waving their handheld [implements], forcefully entered into our temple, and when my father and my brothers tried to dissuade them, they (rest of people) started threatening us. They thumped my brother [Mr A], me and my father to the floor then bound our hands and feet and two of them sat on our chests, which prevented us from any movement and one of them attacked my brother [Mr A] with knife and struck him on the [specified body part], for which he still have the scar.

    By now my mother and younger sister [Ms E] were shaking with fear inside the temple. In this sudden attack, the other Hindu attendees who came for the celebration, filed form the scene to save themselves. The attackers shouted at us saying "You will now see the results of worshiping of heathen (Kafir) idols in an Islamic country. Let us see if your earthen idols can save you." While uttering such words, [Mr I] was roaming inside the temple wielding his handheld [weapon], and his son [Mr H] cut down the idols limbs and head in succession. All other Muslim attackers were shouting the slogan "Nare-Takber-Allah-Akbar" and "Islam Jindhabad".

    I can clearly remember this incident as this was a very vital incident of my life and severely affected our family as a whole. I can remember, my mother came to help my father and me when one of them pushed her to the ground and another caught her by the hair and dragged her away. As my mother had been a patient of [a medical condition], she had [a medical episode] after she hit the ground and her face got somewhat distorted. Till date she cannot talk normally, nor can she move easily.

    On the other side the fundamentalists' attackers destroyed the arrangement of puja, and [Mr H] carried my sister [Ms E] forcefully into our residential rooms of the house and raped her there. [Ms E] was crying out "save me brother" and all our brothers were forced to view the scene in a desperate situation with tears flowing down my eyes. [Ms E] swooned out in the unbearable pain and fear. The attackers shouted slogans of "Nare-Takber-Allah-Akbar" and "Islam Jindhabad" while leaving and carried [Ms E] away with them in the unconscious condition. After the attackers left, our people called up [a named doctor], who advised to admit my mother in the hospital and bandaged our injuries. My mother spent [number of] days in a Nursing home without much recovery and she can neither walk nor talk normally till date.

    There was always running tension in between these two religious groups in our locality, still we never thought that they might attack on our religious celebration. But beyond our imagination, the fundamentalist group did that with us and our families. We had never anticipated that the situation will be worsening, our living place will become a dangerous place for living, and we will not be able to live in our birthplace.

    On that same fateful night [Mr H] married my sister [Ms E] after converting her into Islamic faith and she had been given the new name of "[Ms E’s new name]". [Mr H] has another wife from a previous marriage and the act forcing [Ms E] into marrying him is due to the fact that Muslim fundamentalists believe if a Muslim man can forcefully marry any Hindu woman after raping and converting to their religion he gets a better stand in "Behesht" or heaven after death. This incites the Muslim fundamentalist men in our country into the act of raping and marrying by force of Hindu women. And this led to the woeful state of my sister [Ms E]. We did not receive any help from the local police or administration in this case of my sister [Ms E]. The local police refused us in lodging the case; in the contrary they threatened us with proceedings to imprison us. [Ms E] is surviving as "[Ms E’s new name]" the second wife of [Mr H] and has given birth to a son. These days [Ms E] has to live by eating beef (forbidden as food for Hindus), prays with Namaz and has to cover herself with burqa (veil).

    The anarchic situation was worsening rapidly. That fundamentalist group targeted Hindu community and started attacking Hindus in market area, and in public place. My elder sister [Ms D] had also suffered gravely, though her fate was not as woeful as [Ms E]' s. Some fundamentalist Muslim boys used to threaten regularly [Ms D] and also us. They used to tell us that we would carry away (kidnap) [Ms D] forcefully and rape her. In fear of such actions [Ms D] almost had to stop her studies in school. When she was in [a specified year] and started on her puberty, my brother [Mr A] and me (as advised by my father) used to accompany her to school both in reaching and returning from school. I cannot forget the events of that ill-fated day. [Ms D] was going through her [final] examination days. The days of December ([day] on [date] Dec 1994) being of a shorter duration, it becomes dark by [time] in the evening. On that particular day, my brother [Mr A] were accompanying [Ms D] on her return journey from school. When the examination finished at [time]. in the evening they started on their way back from school with many other students. The school is about [number of kms] distant from our home. For the first half kilometre of the road they were accompanied by other students, after that [Mr A] and [Ms D] together crossed a field, and then started passing by a graveyard. As described by both of them, it was little bit dark then and the graveyard is circled by bushes around. Suddenly four Muslim fundamentalist boys ([two named person]) and rest of two unknown boys; I heard the names from [Mr A] after the incidents) came out from the bushes, and before they could even understand anything they (two unknown boys -one of them had [weapon]) caught hold of [Mr A] and bound his mouth with a piece of cloth and started beating him. On the other side, [two males] caught hold of my sister and bound her mouth by cloth. [One of them] pressed a [weapon] to her breast and dragged her into the bush. [Mr A] tried to stop them to save my sister, then one of unknown boy tried to decapitate him with a [weapon] and he stopped that with his [Body part 1] resulting in a deep incision on his [other body part], ensuing scar is still visible.

    There all the four boys raped her successively one after one. She was howling in agony and pain and my brother was vainly lying there feeling the disaster. Before the boys left the scene they warned them direly that if our family report this incident to police then they would kill us. After they left, my sister crawled up to [Mr A] and unbound him. My sister dress was blooded. They managed to come back home and found us waiting for them worried. Then he told us about the incident in detail and mother gave [Ms D] and [Mr A] primary medical assistance. My father decided to keep quiet on this issue as it involved dishonour, life's threat and safety of the family. [Ms D] had to stop further studies and she was married to a member of a very low-income family, [in] Feb 1995.

    My grandfather Late [Mr J] (my mother [Ms C] 's father) had been a member of [a] union Council and continued for 15 years in this position, founder of local Hindu Minority Committee, and founder of [temples]. He tried to protect the Hindu religion and its followers, the sacred Hindu places from the atrocities of Muslim fundamentalists and died in the act after being cruelly murdered [in] 1970 by Muslim fundamentalists.

    [In] March 1995, during the time of "Ramadan" the Muslim fundamentalists and Muslims kidnapped my uncle [was] coming home after attending a meeting of Hindu minority committee. They took him to a nearby Islamic Mosque, tortured him, feed him beef, circumcised him and finally converted him to the Islamic religion by force by kolema (one of the key 5 fundamentals of Islam). Finally, he fled to Australia via India [in] 1997 to save his life. He applied as a refugee and granted [in] 1999 from RRT, his file number [deleted].

    My [cousins] of [Dhaka] Bangladesh. They and their family members are tortured, raped, persecution and killed his father by Muslim fundamentalists and Muslim. They are both sons of [a named person] are successful candidate of refugee status as refugee's convention, [one of them] have come to [Country 2] [in] 2004 to save his life and claimed as a refugee, FILE [NO], [Country 2] Government granted him as a refugee [in] 2005. [The other one] has come to [Country 2] [in] 2006 to save his life and claimed as a refugee FILE [NO], [Country 2] Government granted him as a refugee [in] 2009.

    In 1971, though Bangladesh got its freedom on the basis of secularism, the Hindu minority group could never enjoy their religious freedom. The Hindu community people who live in Bangladesh do not have the fundamental right to express their opinions. The persecution against the Hindu minority people has not changed. The Hindu minorities' mobile and immobile properties have become the regular target of the Muslim fundamentalists and Muslim. Even the great pioneer and leader of Bangladesh freedom fighting, Sheikh Mujib, himself joined the OIC conference in Pakistan after the freedom struggle, and supported Islamic principles, as well as granted amnesty to those anti-freedom vocalists who were pivotal to acts of Hindu property looting and raping of Hindu women. Under the instruction of Sheikh Mujib the famous "Ramna Kali" temple was destructed, and in that site an office complex has been build up. During the freedom fighting the Hindu population got most affected, tortured and hurt. General Zia introduced in the fifth correction of the constitution of Bangladesh the concept of Islamic faith of "Bismillahir Rahmanir Rahim" as the principle guidelines for the country and removed the secular basis of the country. This started the era of religious torture on Hindus. After this, General Ershad, in 1988, declared Bangladesh as an Islamic country. This enhanced the forceful occupation of Hindu property, compelling Hindu women into marrying Muslim people, and threatening remaining Hindus with life consequences to get them converted into Islamic faith. Many Hindus during this time fled to the neighbouring country of India to save their lives, those who could not leave are persecuted in various ways, many have been murder, robbed, raped and have been force to convert to Islam. During this time, our sharing farmers and Muslim fundamentalists confiscated some our land using the power of VP (vested property) laws.

    In December 1992, the destruction of Babari masjid (mosque) in India has affected our life severely. The revengeful acts in Bangladesh that started against destruction of Babari masjid in India, resulted in mass killing of Hindu population and destruction of Hindu temples as instigated by Muslim fundamentalists. They also initiated disrupting the life pattern of young Hindu women for worse and started killing the people who were involved with the Hindu Minority Committee. There is an incident in our family life what I heard from my parents and brothers. The day was [day] on [date] December 1992 and around [time] some fundamentalists came to our home with the slogan of "Allah-Akbar" and started pillaging. They went on to set fire to our holy shrine of "[Deity 1]". My grandmother (my father's mother) tried to stop them but the fundamentalists pushed my grandmother into temple, poured kerosene on her and set her along with the rest of the shrine on fire. She was burnt to death in the temple fire. My parents were tortured inhumanely by the attackers. I also could not escape their atrocities despite being a child. Moreover, the Muslim fundamentalists and Muslim community people on the same day destroyed all the Hindu temples of our [Village 1] and slaughtered the [priest]. Later my father rebuilt our Temple the god of "[Deity 1]".

    From a very young age I observed my father and my family's activities in relation to Hindu Minority Committee and learnt the methods of preserving Hindu beliefs and customs. My brothers became deeply involved with various institutions of Hindu community and religion, and became actively involved in protecting the rights of Hindu women and institutions from Muslim fundamentalists and Muslims. My brother [Mr A] was an active member of a local Hindu minority committee since the 2000, I used to visit with him the people in minority groups and saw him explaining their rights and their political situation to them. Hindu minority community only our local ([Village 1] branch established my grandfather late [Mr J]); there was no other branch of it other town. The job was, if somebody from this organisation notice a Muslim fundamentalist or Muslim man or boy looking at a Hindu girl or a Hindu woman, would inform her guardian that he had an interest in her. This could be dangerous because Hindu girl or woman are frequently kidnapped by a Muslim oOr Muslim fundamentalists men, raped and forced to marry and convert to Islam. In the Muslim religion a person can be guaranteed a passage to heaven if they convert a Hindu woman or a girl or a man to Islam. So that the ordeals that were suffered by my sister — [Ms D] and [Ms E], do not transpire to any other woman. Henceforth I have also taken measure to ensure that no one is forcefully converted into the Islamic faith and coerced to marry at a very young age like [Ms E]. My involvements (after my brother [Mr A]) in such activities irked the local Muslim fundamentalists and Muslim community people and they started looking for chance to take revenge.

    Another incident that with my family was involving my brother [Mr A]. The Muslim fundamentalists and Muslims have a way of calling names for Hindus as "Charal or Malayan or Kafir (heathen)". The school he attended for secondary education introduced Islamic religious books for all students without paying heed to the requirements of secularism or Hindu preferences, in addition to universal compulsory usage of Islamic skullcaps, that was in [specified year]. One day he protested by saying "I will not real Islamic religious books" and he was cruelly beaten up by the then head Mowlobee teacher with a bamboo stick in returned. After that he never been school again and stopped study and took the profession as a [Occupation 1]. To dissuade us from activities related to Hindu Minority Committee we were regularly given life threats. Days after days we suffered through such innumerable physical and mental tortures which resulted in destruction of our mental stability.

    Our [shop] was running reasonably well. But after 1988, when Bangladesh was declared as Islamic country, my father had to pay subscriptions to Muslim fundamentalists' group fund regularly. There was no way to avoid this payment as they constantly threatened us with life. They used to tell us "You should go to India, this is the country of Muslim people only, and here is no place for any heathen (kafir) people." In all these difficulties my father and I continued to work for the Hindu Minority Committee, partly openly, partly under cover and continued with regular meetings and communications. These activities were not approved by the Muslim fundamentalists and Muslims community. So, I particularly became a main target for their revengeful acts.

    Now I will describe another incident where our family was involved. The day was [day], [date] October 2005, during the month of Ramadan (Islamic religious month for fasting during the daytime), and my father had to attend some activity elsewhere. My brother [Mr A] was attending the shop that day, and having lunch during the midday break on a bench at the back of the shop. Suddenly, [Mr K], with [a weapon] a follower of Jamat and four other members entered the shop and asked about him to our assistant, they got the reply that he was having lunch at the back of the shop- they got infuriated with the information and came to the back of the shop shouting "you son of Kafir (an Islamic name for heathen and Hindus), you dare eating lunch during Ramadan. Do you not realise that this is an Islamic country." And they kicked at my plate throwing up my food, and then they started punching and kicking [Mr A], pushed him to the ground and continued with swearing at him. He tried to save himself, then [Mr K] attacked him with a sharp [weapon] and struck [him]. He was severely beaten and his cloth was full of blood from bleeding, the wound has become a permanent mark. In the bazar (local shopping complex), about 99% of the shops are owned by Muslim people, so none came to our rescue him on that event. On the other hand, the attackers shattered the Hindu idols if "Ganesha and [Deity 1]" that we kept in our shop, trampled on the broken pieces. Even after all this, they were not satisfied; they dragged him to the Muslim community office at the bazar, and declared his faults as having lunch on a Ramadan day. This incited some people, as many were present that day bazaar and some came to attack him as it was a fashion to attack and intimidate Hindus. Finally, a punishment was meted out to him of carrying out sit-ups with holding of ears by hands a hundred times, in presence of the crowd. Also he had to take an oath (kalma) and had to promise that in his whole life he will not ever partake of any lunch or other food during the daytime, in the Ramadan period and will not keep any idols of "Ganesh or [Deity 1]" in our shop. They also told him that if we intend to continue our stay in Bangladesh we have to observe these directives, otherwise we must go to India or they will forcefully convert us to Islam and we will be forced to go for namaz and eat beef etc. After this incident, we never had been keeping any Hindu gods of "Ganesha or [Deity 1]" in our shop.

    We described the incident to the local authority and seek help from the police and local council. The Government office openly showed sympathy to our request, but in reality they failed to take appropriate action against these activities and in fact they were very reluctant to disturb the Islamic faith.

    My bother [Mr A] was also involved in another incident with the daughter of [the] local Jamat leader, "[Ms L] ". He was deeply in love with her that created another vital problem for our stay in Bangladesh. They knew each other from their school period. [Ms L] used to come to the shop and met him whenever she could get some opportunity. But Muslim fundamentalists did not like these meetings. My parents and [Mr A] requested [Ms L] many times not to come to the shop as this portends to our danger. However, one day [the leader] came to our shop and threatened to kill him if he finds [Ms L] visiting him ever. [Ms L]'s father arranged her marriage in some other family but she did not agree to the proposal and discussed their relationship with her mother in detail. Her parents started coercing her into following their own designs. At last one day the Muslim fundamentalists and some Muslim decided after meeting in the mosque that they will marry her to [Mr A] after converting him into Islamic faith. We were not taken into confidence and had no inkling of the decision. The day was [day, in] January 2007; about 50 to 60 men from the Muslim fundamentalists and Muslim group came to our home shouting the slogans of Allah Akbar Naraye Takbir" and forced my father to accompany them and then picked [Mr A] up against his will from the shop, arrived at the nearby mosque. There the Muslim fundamentalists group declared that as result of my loving a Muslim girl, they have meted out a punishment to him. And the penalty is that he will be converted to Islam first and then will have to marry [Ms L].

    My father tried to dissuade them by pleading and they started pounding him. My brother [Mr A] denied to follow them and one of them smashed his [Body part 1] by striking it with [object]. The scars still there, also one of them struck him on his [Body part 1] with a knife and the scars are still visible. They took off all his clothes to humiliate him and one of them started poking at my genitals with a stick and mocked me "so long you have not done the Islamic ritual of circumcision but you will have to perform it today." One of them brought some beef and bade him to eat it, an act that considered sacrilegious to Hindu religion. Imam asked me to read the kalema or religious oath and he had to follow him in repeating the words "Bismillahir Rahamanir Rahim". In fear of life my brother cooperated with them following their every wish and finally the decision was taken that net day being a Friday (very good day for Muslim), after the namaz of Jummabar they will perform the circumcision and other activities related to conversion to Islamic faith. Then they let my father go and detained my brother at the outhouse of local Jamat [leader], after binding him with ropes as a continuous penalty.

    With the help form [the leader]'s younger brother [my] brother escaped from [his] custody. When they could not find him there they beat up my father and my brother [Mr F], they then entered our temple and tore down the idol of god "[Deity 1]". Some people ransacked our [shop] in the bazar. They searched for him everywhere. For the rest of the day our family was too scared and shocked to even venture outside the house. On the other side, when the news of my fleeing reached [Ms L], she tried to do suicide by consuming poison unsuccessfully. This triggered the whole situation into an explosive mood, and they started harassing every Hindu home in the locality in groups, particularly they targeted the families who were related to Hindu Minority Committee activities. They tortured my father to the extent that even after spending about [number] days under intense medical care in a nursing home he did not recover fully. Furthermore, [Ms L]'s father coerced my father to transfer the shop and most of our agricultural lands in their names without any monetary transactions. My father in fear of life of our [brothers] agreed to write all the property in their names, otherwise they threatened to kill all of us.

    It is alleged that rather the Government of Bangladesh indirectly supported these fundamentalist activities. With this alleged support from the Government, the radical groups had become more active and dangerous and continued their attacks with much inspiration. The security enforcing forces come after their attack, and rather accuse Hindu people for false criminal charges.

    After these incidents living in Bangladesh became impossible for [Mr A] and he became a main target for the Muslim fundamentalists and Muslim community. Finally, all our relatives advised him to leave Bangladesh and he crossed the border to India without any valid documents, with the help of a broker. Again his life in India was not an enjoyable one. He became desperate to leave India and came to Australia to save his life. Australia, being a reasonable and secular country accepted his application to stay permanently and he is an Australian Citizen now living in Australia free from any kind of fear.

    Now I want to describe the specific situation that affected me in Bangladesh and the reasons behind my escape. After my brother's escape, the whole Muslim group that used to work agains us became very voilant. And certainly our remaining family were their first taget. They started to attacks on my brothers and me as an after effect of my brother's escape from Bangladesh. Now, they do not want only to get our properties, they are after our life. The sons of [Mr I] beat our parents in such a way, they became paralysed and they lost their capacity to walk and normal daily life. They have beaten my brother [Mr F] and ask him to leave the village forever and threaten him that if he comes back, they will kill him and also told him if they saw him again in the village they will burn him and our family like our grandmother. After that incident my brother stopped coming to the village and he started living a very risky life.

    These serial incidents made me so angry that I was always thinking of taking revenge and was planning how to save my family. We have suffered a lot after my brother [Mr A] escaped from their custody. I cannot forget the incident that happened on a Friday ([date] January 2014), I was taking my mother to the doctor for check-up. We were travelling by the side of the local Mosque. They called me in my name and ask the Rickshaw-puller to stop and then came to us. There were [named persons] and couple of other local boys (I don't know their name). They ask me and my mother to come down from rickshaw and were asking where we were going. I was so scared that could not answer them properly. Then they [kicked] me off and I fell on the ground. In that situation my mother couldn't even shout for help and went senseless. Then they started to tell me that "your brother [Mr A] went to Australia. We know he is sending money and you people are surviving on this money. It cannot be happen. We will also make you the same "circus" like your brother". Then they took me inside the area of mosque and started beating [me].Then they slap me on my ear so hardly that I got a permanent problem in my ear. I got hearing problem after that incident. Then when I started crying, son of [Mr I] tell everyone that we should kill this "Malaun" and "Charal". Then someone suggested from the crowed that, it would be better if we keep him alive and ask him for money. Then they told me to ask my brother [Mr A] to send [money] from Australia. Otherwise they will do whatever we cannot even think of. Then someone also suggested from the crowed that I may forget the threat. So that I can remember someone (I was not in a position to check who was telling what) lit a Cigerrate and put that fired thing on my [Body part 1] and burn in order for me to remember their threat. I was screaming in pain and then they left me outside of the mosque. When doing so they were communicating between themselves that "we could not get the older one (thay were talking about my brother [Mr A]), but let us kill this bustard".

    I was severely injured on my ear and it was bleeding. Then some people took me and my mother to the doctor. I still bear the marks of that injury on my [Body part 1]. Because of other follow up incidents, my family and friends who visited me in the hospital had become very concerned about my safety as they apprehended that I might face the similar attack in future as I was already recognised. They advised me to leave the place.

    We are constantly in danger of being shot at, stabbed or tortured in one way or another. The attacks happen randomly and the authorities are powerless to stop it. I lived in constant fear that I would one day be the next victim of one of their attacks. They have taken every step so that Hindu people can't live there and they are compelled to leave the place. All attacks were designed with the purpose of eliminating Hindu people from Bangladesh, the officially recognised Islamic state. They were frequently instructing us to leave the place, and threatened that if you continue living you should be prepared to dig your own graveyard. As a member of Hindu community, it had become impossible to continue my life there. We were under threat every day by the Islamic Fundamentalist and Radical groups.

    I though by myself to go some other parts of Bangladesh. Then I thought by myself, even if would go other place in Bangladesh still I Hindu by surnamed [name], I am not circumcise, I don't eat beef, moreover Muslim fundamentalists (specially Jamaat-e-Islami) and Muslim community have great communication among them all over Bangladesh. So the Muslim fundamentalists and Muslim community people will kill me or convert me to Islam if they get hold of me or find out me. I can be easily recognisable as I do not eat beef and I do not pray or dress in Islamic way. So my live was totally over in Bangladesh, like my bother [Mr A]. My other [brothers] are hiding. We have no idea where is [Mr F] is. We heard some people saw him in different temples to stay at nights (not an specific one) and [Mr G] does not live in any specific place as well. Sometimes he goes to see and live in my sister's place in [Area 1], Dhaka for couple of days and again goes in hiding. My entire family is living an inhuman life due to our believe in religion.

    All these situation and incidents left a sense of insecurity about my life, as a result of my injury and the trauma I have faced throughout my life, I find it very hard sometimes to remember all the specific dates and all the specific incidents cause me fear. With the advice of my family and friends, I decided to leave Bangladesh illegally. Because If I go somewhere legally, there could be a chance of getting caught. I was so scared that I could not even think logically. I contacted with an agent and they prepare everything for me. I left for India [in] February, 2014, [by] a bus [in] Dhaka. When I reached [location], the agent's person came and picked me up from there. On the day at [time] they helped me to cross the border at the very dark of [night]. I cannot recognise anything rather followed their instruction.

    When I reached India, it was a new life for me. I thought I would never be a subject to torture again. I got a SIM and contacted with my family. My family was very happy. My brother got one agent for me who will look after. I went to his home with him and stayed there for 7 days. After that that agent handed me over to someone else. My life became a misery again. In India, I had no right. I had no passport. I cannot go for work. I had no money.

    The name of the person was [name]. He was the agent there. I thought he would be from my same religious background. But finally I discovered he was also a Muslim and that was the reason for his behaviour. He started using me in this situation. He wanted me to help his in every of his household work including looking after his cows and goats. Then after couple of weeks he introduced me in a [workplace] to work. The agent told me, continue work here until we find a better solution for you.

    My dream was destroyed, this is not that India which I expected. I had tried to stay in India (west Bengal) but without Indian voter registration identity and a ration card very hard to live there, so I tried to obtain a voter registration identity and a ration card but those were very difficult to get it. I cannot speak Hindi and have an accent of Bangladeshi dialect in my spoken Bengali that expresses me to the local people and administration and they realised easily that I am illegally come from Bangladesh. So they always abused me, persecuted me after knowing my immigration status, they demanded money from me, I could not pay, as a result they assaulted me and beat me. I then left that area and went a new place here and there but I got same result from everywhere. I lived in a slum area of the city and work [in] the [workplace]. I did not get any better job there because I am come from a schedule cast, which gave rise to discrimination all over place in India (W.B.), also most of time I gave them free labour to live in peace and save my life from assault and harm. Only west Bengal is the state of India have Bengali language, rest of states have different language, so I stayed in West Bengal, and I would not survive any other states of India.

    The agent and his people always tried to abuse me and used to take all my money that I got from my work. They used to threaten me to deport or push back to Bangladesh as well.

    My life was over in India, I was so scared, and always thought that they would harm me, push back me to Bangladesh and if I would push back in Bangladesh, there Muslim fundamentalists and Muslim community people would kill me or convert me to Islam. I became extremely dejected, and constantly suffered from the phobia. Sometimes I feel living like this is unbearable, but I became desperate to find a place or country where I would not be discriminated against on the basis of my religion. I became desperate to leave to India and come to Australia for save my life. I talked the whole scenario with my brother [Mr A]. I heard from him that Australia is a beautiful country which is respectful to human dignity and human rights, where all people can live together in peace irrespective of colour, cast, creed, religion etc. In Australia, freedom of religion is guaranteed, diversity and multi-culturism are promoted; all are equal before law; respectful to human dignity and oppressed people are protected.

    He was so helpless with that agent and then he confirmed me that he will do something for me to save my life. He dealt with the same agent and arranged my Indian passport with different name and different date of birth. The agent send me to [Country 1] to use [Country 1] as a transit to Australia. They supposed to send me by Air, but later on decided to send me through boat. Then I and my brother disagreed. When I returned to India again they send me to Bangladesh twice to get some history of travel. They told me in order to get Australian visa it is important to get some travel history. Later they arranged my Australian visa. I had never made contact with Indian passport office nor the Australian Embassy.

    My fears if I am returned to Bangladesh:

    If I am returned to Bangladesh, I am afraid that I will be subjected to serious harm including torture, persecution and death. I am afraid of this harm from the Bangladeshi Muslim extremist and Radical Groups.

    I am afraid that I would not be protected by anyone, including the authorities, because the authorities lack of resources and Bangladeshi police are one of the most corrupt in the world.

    After I came to Australia [in] March 2016, I found that this is the most accepting country on the earth and that the Australian community are the most tolerant people in the world. I was convinced that the Australian government and the Australian people would sympathetically understand me and my situation and would permit me to remain here for the rest of my life like they did in my Brother's case. I was so traumatised that even today (Australia) I have nightmares about all incidents, I woke up and felt embarrassed, ashamed and scared. But later I feel save that I am in now Australia.

    Therefore I believe that the department of Immigration will be kind enough to consider my application sympathetically.

1. The applicant provided to the Department copies and translations of his and his family’s identity documents, and evidence of the applicant’s qualifications. The applicant also provided a copy and translation of a petition lodged in a Bangladesh [Court], stating that the applicant’s father was being threatened and was attacked by several people, who claimed that they would kill the applicant’s father and his family. The petition lists the applicant as a witness.

2. The applicant provided a further statement to the Tribunal dated 20 October 2020, a week before the hearing. In that statement, the applicant indicates that on [date] May 2020, during the month of Ramadan, 20 to 25 Muslim fundamentalists entered the family home asking for the applicant’s father who was not there. The applicant’s ill mother was there. The fundamentalists indicated that they wanted [amount] every month otherwise they will kill the applicant’s father. The applicant mother’s indicated that if they come again in two days, the money should be in hand.

3. Two days later the fundamentalists returned and used vulgar words and attacked the applicant’s father and kicked the applicant’s mother. They took the applicant’s father to another house. They took the applicant’s contact number from the applicant’s father’s mobile phone and a person [called] the applicant and said that if you want to see your father alive, give them [amount] within one day.

4. They passed the mobile phone to the applicant’s father who was crying and told the applicant he was being tortured. The applicant requested that they do not torture the applicant’s father and they will send money to them. The applicant called his brother [Mr A] and told him everything. Although they did not want to, they gave the [payment] to get back the applicant’s father.

5. The applicant continues that [in] August 2020, Muslim fundamentalists came again to the applicant’s family home and requested that the applicant’s father give them [amount] taka as his sons live abroad. The applicant’s family gave them [amount] on ‘Ramadan Eid’.

6. Muslim fundamentalists brought with them [weapons]. The applicant’s father was hit on the head with [an object]. After the applicant’s mother tried to rescue her husband, she was attacked [causing] bleeding. She lost her ‘sense’. Because no money was paid, they ‘fired out our cow house’ and one cow was dead as a result of the fire. A neighbour called the doctor for the mother’s treatment. Treatment was not sought from the hospital because the minority Hindu community is ignored.

7. The applicant’s family were told that when the sons, including the applicant, enter Bangladesh, they will be killed for sure.

8. The applicant’s brother and witness to the proceedings, [Mr A] also provided a statement to the Tribunal dated 20 October 2020. That statement outlines claims of harm suffered by him in Bangladesh due to being Hindu. The statement refers to [Mr A] returning to Bangladesh for his marriage in July 2014. [Mr A] indicates that the home was ransacked on his return by Muslim fundamentalists who took products that he had brought from [Australia]. [Mr A] went to live in the home of his future in-laws.  [Mr A] indicates that he left for India, but the individuals tortured his brothers and parents.

9. [Mr A]’s statement indicates that recently during Ramadan he got a call from his mother and father indicating that Muslim fundamentalists in Bangladesh had raided the home and demanded money. It was indicated that his father was taken to one of the homes of the fundamentalists. [Mr A] indicated that he called his sister [Ms E] in Bangladesh and arranged for money to be paid to the fundamentalists.

10. The applicant submitted the following documents to the Tribunal:

    ·a copy and translation of a receipt for a donation [from] [Mr B] to the [Village 1] Hindu Minority Committee, dated [date] August 2011;

    ·a copy and translation of a receipt for a donation [from] [Mr F] to the [Village 1] Hindu Minority Committee, dated [date] May 2016;

    ·a copy and translation of a receipt for a donation from the applicant to the [Village 1] Hindu Minority Committee, dated [date] October 2016;

    ·a copy and translation of a receipt for a donation [from] the applicant to the [Village 1] Hindu Minority Committee, dated [date] July 2016;

    ·a copy and translation of a receipt for a donation [from] the applicant to the [Village 1] Hindu Minority Committee, dated [date] September 2015;

    ·a copy and translation of a receipt for a donation [from] the applicant to the [Village 1] Hindu Minority Committee, dated [date] May 2013;

    ·a copy and translation of a certificate from [president] of the [Village 1] Hindu Minority Committee, dated 26 November 2016, stating that the applicant is a member of the organisation, that Hindus are victimised in Bangladesh and face social and religious discrimination and persecution, that an offence has been committed against the applicant’s family, that Muslim extremists attacked the applicant and his family, and that the applicant has now left for Australia;

    ·a copy and translation of a written statement from the [Village 1] Hindu Minority Committee dated 16 November 2016, stating that the applicant and his family faced persecution, and that 10 people from the Committee testified in support of the applicant;

    ·a copy and translation of an undated handwritten note, presumably to the applicant’s father, which states that the recipient should leave the country and go to India as it is not his country, that they will kill the recipient’s children and burn his house, that one son has gone to Australia and another lives in [Area 1], and the author knows the place, that they have already attacked the recipient’s house several times, and that all Hindus who help will suffer the same consequences;

    ·a copy and translation of a letter from [Mr F] to the officer-in-charge of [a] Police Station dated [date] November 2016, requesting a police report that an unidentified person abused the author’s father and family members over an internet call to the father’s mobile phone, and threatened to kill them; and

    ·a written statement from the [Village 1] Hindu Minority Committee dated 17 September 2016, stating that the applicant’s father and family have been tortured by Muslims, who have also tried to burn their house and kill the family, that other Hindu families are tortured by Muslims, that many Hindus have left the country, and that Hindus cannot engage in religious practices due to the Muslims.

    Independent information

11. The DFAT Country Information Report – Bangladesh, 22 August 2019, provides the following information on religion and Hindus in Bangladesh:

    Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people. Religious minorities reside throughout the country in small numbers.

    The Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. The Constitution also commits the state to upholding secularism by not granting political status in favour of any religion, by prohibiting the abuse of religion for political purposes, and by prohibiting discrimination or persecution of persons protecting any religion. It provides for the right to profess, practise, or propagate all religions ‘subject to law, public order, and morality’, and states religious communities or denominations have the right to establish, maintain and manage their religious institutions. The Constitution stipulates that no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which they do not belong.[1]

    [1] DFAT, Country Information Report – Bangladesh, 22 August 2019, p. 19, paras [3.27] – [3.28].

    …

    Hindus

    Most Hindus are ethnically and linguistically Bengali, and are not physically distinguishable from the majority Muslim population. Hindus live throughout Bangladesh, including in Dhaka. There are, however, a small number of ‘Hindu belts’ in the south, east and north of the country where Hindus comprise up to 40 per cent of the local population. Some exclusively Hindu villages exist, although most villages are religiously mixed.

    The percentage of Hindus in Bangladesh has fallen considerably over time. There have been two mass emigrations of Hindus from Bangladesh (and East Bengal). At the time of Partition, approximately 2.5 million Hindus left then-East Pakistan for India – the 1951 Census indicated a fall in the Hindu population of 21.4 per cent from the previous Census ten years earlier. The second occurred during the 1971 civil war, when up to 8 million Hindus (70 per cent of the Hindu population of East Pakistan) fled the country and as many as 2.4 million died, including from being deliberately targeted by the Pakistan Army and its local allies. The overwhelming majority of Hindus who have left Bangladesh have gone to India, although small numbers have also gone to western countries.

    No legal or other restrictions prevent Hindus from freely practising their faith, or from participating in broader society. Hindus have made a significant contribution to Bangladeshi public life, including in politics, government, academia, business, and the arts. While they have traditionally supported the AL and other left-leaning parties such as the Communist Party, all major political parties have fielded Hindu candidates. While the current AL Cabinet has Hindu members, the overall level of Hindu political representation remains low and Hindu community groups have campaigned for reserved seats in parliament. Similar to other religious minorities, Hindus are not well represented in the security forces, but local sources told DFAT that that situation is now changing and more Hindus are being recruited.

    Like other minorities, the Hindu community is disproportionately affected by historical and continuing land appropriation (‘land grabbing’). During the 1965 war between Pakistan and India, the then-Pakistani government designated Hindus as ‘enemies’ and many had their property seized under the Enemy Property Act (1965). The Vested Properties Return (Amendment) Act (2011) allowed Hindus to apply for the return of, or compensation for, property seized under the 1965 Act. However, Hindu communities and advocacy organisations have complained that the Act is too narrowly defined, and the application process cumbersome and convoluted. In June 2016, an NGO representing organisations with claims for property returns alleged that government officials tasked with reviewing claims were denying them even when required documentation was in order, or were classifying properties as state-owned and therefore not eligible for return. The NGO reported that 70 per cent of all claims remained unresolved four years after the enactment of the 2011 Act.

    In the lead-up to and following the 2014 elections, activists from the Islamist Jamaat-e-Islami party (see Jamaat-e-Islami (JI)) launched a wave of attacks against the Hindu community, killing more than two dozen, destroying hundreds of homes and businesses, and displacing thousands. DFAT understands that the primary motivation for the anti-Hindu violence, which was most prevalent in the northwest, was resentment over the testimony of Hindu witnesses in International Crimes Tribunal (ICT) proceedings (see International Crimes Tribunal (ICT)). In the aftermath of the violence, the High Court ruled that law enforcement agencies had ‘seriously failed’ to protect members of vulnerable groups, including Hindus. The government responded by providing assistance to victims and helping communities restore religious and private property damaged in the violence. The 2018 election was not characterised by such violence.

    The small-scale localised attacks carried out by Islamist militant groups against minority religious and social groups across the country in 2013-16 killed or seriously injured several Hindus. Police were despatched to protect temples and clergy in response to the attacks and to death threats made by militants. DFAT is not aware of any subsequent attacks of a similar nature.

    There have been occasional cases of mob violence against Hindu targets. In October 2016, a mob of at least 100 violently attacked a Hindu village in Brahmanbaria district in east-central Bangladesh. Although police reinforcements and paramilitary border guards were despatched to the area, the attack left dozens injured, and at least 15 Hindu temples and over 200 Hindu homes badly damaged and looted. Initial media reports suggested Islamists had incited the violence by alleging a Hindu had posted on Facebook an edited photograph of a Hindu deity seated atop the Kaaba in Mecca. A subsequent government investigation found the Facebook photograph had been planted, most likely as a means to incite the violence. A NCHR investigation concluded that the incident was a pre-planned effort aimed at appropriating Hindu land. Authorities arrested and/or charged more than 1000 people connected to the incident, including a local police officer, while the AL suspended three local leaders from the party for their involvement. In a separate incident in November 2017, a mob of approximately 20,000 in Rangpur district in northern Bangladesh set fire to and vandalised approximately 30 private homes belonging to Hindus. The violence followed a Facebook posting judged to demean the Prophet Muhammad. A press report stated one person was killed during the incident, and five suffered critical injuries. Police arrested more than 50 in the wake of the attack, and the government pledged to compensate those affected.

    DFAT assesses that Hindus with historical land claims face a moderate risk of official discrimination because they are unlikely to be able to reclaim their property or obtain compensation despite a legal pathway enabling them to do so. DFAT assesses that Hindus face a low risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions such as national elections. Hindus also face a risk of physical violence in the form of mob attacks triggered by localised factors, although these are relatively uncommon; and from sporadic attacks by Islamist militants.[2]

    …

    INTERNAL RELOCATION

    Article 36 of the Constitution guarantees citizens the right to move freely throughout Bangladesh, to reside and settle in any place therein, and to leave and re-enter Bangladesh. There is no legal impediment to internal movement within Bangladesh, and Bangladeshis can and do relocate for a variety of reasons. Major cities, such as Dhaka and Chittagong, offer greater opportunities for employment. DFAT assesses that women without access to family or other support networks are likely to face greater difficulties in relocating then men, particularly if they are poor, single, and/or have suffered gender-based violence.

    As noted in Chittagong Hill Tracts (CHT) indigenous people, the CHT is a heavily militarised area.[3]

    Access to large sections of the CHT is restricted, and military checkpoints prevent free movement in the CHT by local people. Local NGOs report that many indigenous people have left the CHT to live in other parts of the country.

    [2] DFAT, Country Information Report – Bangladesh, 22 August 2019, pp. 21 – 23, paras [3.43] – [3.50].

    [3] DFAT, Country Information Report – Bangladesh, 22 August 2019, p. 48, paras [5.22] – [5.23].

12. The US Department of State’s 2019 International Religious Freedom Report – Bangladesh, provides the following information:[4]

    [4] US Department of State, 2019 International Religious Freedom Report – Bangladesh, (accessed 22 October 2020).

    The Bangladesh Hindu Buddhist Christian Unity Council (BHCUC) said “atrocities” against minorities continued, but had slowed.

    …

    The U.S. government estimates the total population at 161.1 million (midyear 2019 estimate). According to the 2013 government census, Sunni Muslims constitute 89 percent of the population and Hindus 10 percent. 

    …

    According to the constitution, “The state religion of the Republic is Islam, but the State shall ensure equal status and equal rights in the practice of the Hindu, Buddhist, Christian, and other religions.” The constitution also stipulates the state should not grant political status in favor of any religion. It provides for the right to profess, practice, or propagate all religions “subject to law, public order, and morality” and states religious communities or denominations have the right to establish, maintain, and manage their religious institutions. The constitution states no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which he or she does not belong.

    …

    Hindu men may have multiple wives. Officially, Hindus have no options for divorce, although informal divorces do occur. Hindu women may inherit property under the law. Buddhists are subject to the same laws as Hindus. Divorced Hindus and Buddhists may not legally remarry. Divorced men and women of other religions and widowed individuals of any religion may remarry. Marriage between members of different religious groups is allowed and occurs under civil law. To be legally recognized, Muslim marriages must be registered with the state by either the couple or the cleric performing the marriage; however, some marriages are not. Registration of marriages for Hindus and Christians is optional, and other faiths may determine their own guidelines.

    …

    Religious studies are compulsory and part of the curriculum for grades three through 10 in all public government-accredited schools. Private schools do not have this requirement. Muslim, Hindu, Buddhist, and Christian students receive instruction in their own religious beliefs, although the teachers are not always adherents of the students’ faith.

    …

    The Restoration of Vested Property Act allows the government to return property confiscated from individuals, mostly Hindus, whom it formerly declared enemies of the state. In the past, authorities used the act to seize property abandoned by minority religious groups, especially Hindus, who fled the country, particularly following the Indo-Pakistani War of 1965.

    …

    Law enforcement concluded one of eight investigations into a 2016 attack on Hindu individuals, homes, and temples in Brahmanbaria District. In December 2017, 228 were charged with the attacks on the Hindu community, pending prosecution. However, according to media reports, all accused persons were since released on bail. According to media reports, in the three years since the attack, there was no further progress in this case following the completion of one of eight investigations, and no timeline was given for completing the other seven investigations or for scheduling hearings for the 228 charged. The courts held no hearings before the end of the year. The attackers injured more than 100 individuals and vandalized 52 Hindu homes and 15 temples following a Hindu resident’s Facebook post showing a Hindu deity pasted over the Kaaba in Mecca. The National Human Rights Commission stated the attack was orchestrated to drive Hindus from the area and obtain their land.

    …

    According to the Ministry of Land, authorities adjudicated 15,224 of 118,173 property-restitution cases filed under the Restoration of Vested Property Act as of 2018, the most recent year figures were published. Of these judgments, the owners, primarily Hindus, won 7,733 of the cases, recovering 8,187.5 acres of land, while the government won the remaining 7,491 cases. Media reports, rights activists, and the Bangladesh Hindu Buddhist Christian Unity Council attributed the slow return of land seized under relevant legislation from Hindus who had left for India to judicial inefficiency and general government indifference.

    …

    Hindus, Buddhists, Christians, and members of other minority religious communities, who are also sometimes members of ethnic minority groups, continued to report property and land ownership disputes and forced evictions, including by the government, which remained unresolved at year’s end. 

    …

    The government continued to place law enforcement personnel at religious sites, festivals, and events considered potential targets for violence, including the Hindu festival of Durga Puja, celebrations during the Christian holidays of Christmas and Easter, and the Buddhist festival of Buddha Purnima.

    …

    In October rioters clad in Islamic garb and brandishing Islamist banners protested the arrest of two Muslims in Bhola accused of hacking a Hindu student’s Facebook account to plant disparaging comments on Islam for extortion. The rioters demanded the incarceration of the Hindu student, ransacked a local Hindu temple, and incited local residents to join them. Police responded to the rioters, who they stated were armed with shotguns, and used lethal force in what they stated was self-defense, which resulted in four deaths. More than 100 people were injured in the riots. The two Muslims accused of the hacking remained under arrest, as did the Hindu student who reported to police the hacking and subsequent extortion attempt.

    In November according to several media reports, unidentified persons broke into a Hindu Kali temple in Tangail and vandalized five idols. A local Hindu leader said the perpetrators acted in this manner to damage communal harmony between Hindus and Muslims in the area. Local authorities and law enforcement said they opened an investigation into the incident.[5]

    [5] US Department of State, 2019 International Religious Freedom Report – Bangladesh, (accessed 23 October 2020).

1. A Standard Q&A Report from the Country of Origin Information Services Section of the now Department of Home Affairs concerning Treatment of Hindus in Bangladesh[6] reports on a number of instances of violence towards Hindus in Bangladesh in 2015 and 2016.  The report provided a table prepared by Bangladeshi human rights NGO, Ain o Salish Kendra, which collected statistics on violence against the Hindu community in 2015. It refers to 60 people being injured, 213 places of worship damaged, 104 homes destroyed and/or set on fire, six businesses destroyed and set on fire.[7]  The Tribunal refers to statistics compiled by the same organisation for 2014 referred to in the US Department of State, Bangladesh 2014 International Religious Freedom Report:

   Violence directed against members of minority religious groups continued to result in the loss of lives and property. Religious freedom organizations said it was often difficult to determine to what extent the attacks were motivated by religious animosity or by criminal intent, personal conflict, property disputes, political concerns, or a combination of these factors. Members of minority religious groups often had the lowest socio-economic status and the least recourse to political means to redress wrongs done to them. The most common type of abuse was destruction and looting of religious sites and homes. Attacks against Hindus, in particular, continued throughout the year. According to the human rights organization Ain o Salish Kendra (ASK), one person was killed; 255 persons were injured; 247 statues, monasteries, or temples were destroyed; and 761 homes and 193 businesses were vandalized in violence targeting Hindus.[8]

   [6] Standard Q&A Report from the Country of Origin Information Services Section of the Department of Immigration and Border Protection, Treatment of Hindus BGD CI6022217035092, 23 March 2016.

   [7]Ain o Salish Kendra (ASK) 2016, Violence Against Hindu Community: January-December 2015, 7 January < (accessed 10 February 2016) <CIS38A8012160>

   [8] US Department of State Bangladesh 2014 International Religious Freedom Report, p.8.

2. A search on the website of Ain o Salish Kendra show figures for attacks on Hindus in 2019. Those figures show no individuals dead, 51 people being injured, (no individuals dead), 37 homes attacked, 2 businesses attacked, 72 attacks on temples, monasteries and statues, 7 attacks on a family.[9]

   [9] Violence Against Religious Minorities (January – December 2019, Documentation Unit, accessed 26 March 2020.

   Hearing, credibility, findings, and assessment

3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

4. In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by applicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

5. The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.

6. A credibility concern for the Tribunal is differing evidence as between the applicant and his brother in Australia, [Mr A] as to difficulties recently faced by the family in Bangladesh.

7. This evidence relates to details of his parents in Bangladesh recently being attacked and asked to pay money, which then resulted in the applicant’s father being forcibly taken to the home of a militant. The evidence of the applicant, both in his written claims and at the hearing, is that he received a phone call from one of the militants who had taken his father, with the phone number being gained from seizing the mobile phone of the father. The militant demanded that the applicant facilitate the payment of [amount] to them to prevent harm to his father. In the hearing, the applicant indicated that he then rang his brother [Mr A] in Australia and told him what happened. This resulted in [Mr A] calling his sister [Ms E] in Bangladesh to facilitate her paying money to these individuals, which she did.

8. In contrast, in [Mr A]’s evidence in the hearing concerning these events, he indicated that he came to learn of the request for money to be paid from his mother on the day that Muslim extremists came to the family home. [Mr A] gave evidence that he phoned the applicant to advise him of this, but did not speak to him, leaving a message.  [Mr A] then indicated that he contacted [Ms E] in Bangladesh to arrange that she make the payment of the money.

9. The Tribunal noted to the applicant that [Mr A] had provided a different account to the sequence of events, and did not provide evidence that, as indicated by the applicant, the applicant had received the phone call demanding the money, before speaking to his father, and then subsequently telephoning [Mr A] to advise of this, with [Mr A] than making arrangements with [Ms E] to pay the money.

10. In response, the applicant said that [Mr A] must be confused, because what the applicant had indicated was in fact what had happened.

11. [Mr A] then indicated that he was in fact mistaken, and that he had received a call from the applicant recounting the phone call demanding money and the subsequent conversation with the applicant’s father.

12. As put to the applicant in the hearing, the Tribunal has difficulty accepting that there would be understandable confusion in relation to the sequence of very impactful events claimed. The Tribunal does not accept that [Mr A] would be understandably or readily confused as to how he heard of the impactful and important news of attacks on his family in Bangladesh and a request that money be paid.

13. The Tribunal also has plausibility concerns with the scenario that the Muslim extremists would have had the presence of mind to extract the applicant’s Australian mobile phone number from the phone of the applicant’s father and readily make contact with the applicant in Australia to request money. Their need to do this is reinforced by the fact that it was, ultimately, the applicant’s sister [Ms E] in Bangladesh who paid the money. That begs the question that if there was financial capacity of family in Bangladesh to pay the ransom, why it would have been necessary to go to the effort of threatening the applicant in Australia.

14. The applicant maintained this happened. The Tribunal notes that the fact that something is implausible does not mean that it did not happen. Nevertheless, the implausibility of the scenario causes the Tribunal some limited credibility concern.

15. The applicant has claimed that he, together with family members, have been subject to concerted and systematic harm in their local area from Muslim extremists. It is on this basis, as evidence to the Tribunal indicates, that [Mr A] was granted a protection visa on 2 October 2009.

16. A credibility concern with the claimed situation facing the applicant and his family is the return visit to Bangladesh by [Mr A] after he was granted the protection visa.

17. In the hearing, [Mr A] confirmed written claims that he returned to Bangladesh in July 2014 to get married. In the hearing, [Mr A] indicated that this was an arranged marriage with a woman from a neighbouring village in Bangladesh. [Mr A] indicated that he is still married to this person, who has joined him in Australia.  [Mr A] indicated that he was in Bangladesh for about [number of] days. He resided mostly with his in-laws, and the wedding ceremony was held in the neighbouring village.

18. In the hearing, [Mr A] confirmed the written claims that items that he had brought from Australia which were in the family home were taken by Muslim extremists when they raided the home.

19. As put to the applicant and [Mr A], concerns as to the extent of the claimed negative circumstances facing the family as a result of them being Hindu arise as a product of the fact that [Mr A], who has been granted protection on similar grounds to those being claimed by the applicant, returned to Bangladesh for a marriage, returning to the same vicinity of his home area. In response, both the applicant and [Mr A] referred to a desire by [Mr A] to return because he had been apart from his family for so long. [Mr A] referred to avoiding harm by being located in the neighbouring village with his in-laws. It was indicated that there was acceptance of the degree of risk in returning but this was overcome by a desire by [Mr A] to see his family.

20. Whilst the Tribunal accepts an understandable desire by [Mr A] to see his family, it is nevertheless concerned as to the credibility of the extent of the harmed claim to have been faced by [Mr A], the applicant and his family as a result of being Hindu, and that [Mr A] would return to the vicinity of his local area and participate in a marriage ceremony, in that area. Such conduct could be seen as inconsistent with claims of the family having been subject to the degree of harm and targeting claimed based on being Hindu.

21. If [Mr A] had wanted to see his family and enter into a marriage in Bangladesh, the Tribunal considers that reunion and marriage would have taken place discreetly, and far away from the applicant’s home village, in which it is claimed that the applicant and his family are subject to sustained targeting and harm.

22. This return visit is somewhat undermining as to the claimed circumstances of the applicant in relation to himself and his family.

23. Having noted these concerns, the Tribunal in the hearing was reasonably consistent and believable as to instances of harm that have faced him and his family over the years as a result of being Hindu. Credible and consistent evidence was given in the hearing of the rape of [Ms E] in 2006 and her forced marriage to a Muslim. The applicant indicated in the hearing the she is no longer married to this person, who the applicant named consistently in the written claims, and has now married someone else. The applicant also provided consistent evidence with written claims as to the rape of [Ms D], although he clarified that it was a mistake in the written claims to state that he was present during this attack, acknowledging that he had only recently been born at the time. The applicant also gave consistent and believable evidence as to the event claimed in January 2014 when he and his mother were attacked by extremists. The applicant gave this evidence in a way that caused the Tribunal to consider that the applicant was recounting events that actually happened. The applicant provided evidence in the hearing consistent with written claims of his brother [Mr A] having a girlfriend who was a Muslim, and an attempt (unsuccessful) to convert [Mr A] to Islam and to marry the girl.

24. While there were some concerns for the Tribunal as to the various accounts of harm [Mr A] recounted in the Tribunal hearing, in terms of its consistency with written claims, the Tribunal was convinced that there were a not insignificant number of adverse and harmful events directed towards [Mr A] and the rest of the family from Muslim extremists located in the village. The fact of [Mr A] being successfully granted a protection visa based on such claims is probative.

25. While the credibility concerns identified suggest to the Tribunal that there has been some exaggeration and overreach as to the extent of the claims made, the Tribunal accepts that, over the years, there has been a targeting by Muslim extremists in the local village area towards the applicant’s family, and on some occasions the applicant, as a result of them being Hindu. However, the Tribunal is not satisfied with the truth of claims that the applicant’s parents have been subject to physical attacks of harm in 2020, and that the applicant’s father was effectively kidnapped, with his attackers finding the applicant’s phone number and calling the applicant requesting money.

26. Nevertheless, the Tribunal is satisfied that the past targeting and harm which the Tribunal does accept has occurred could continue, such that the applicant would face a real chance of serious harm or significant from these Muslim militants in his local area based on being Hindu.

27. The Tribunal is satisfied that the applicant left for India to escape difficulties in Bangladesh based on the practice of his Hindu religion. The Tribunal is satisfied that the applicant decided that he could not practically relocate within Bangladesh, including on the basis that he feared continuing harm everywhere in Bangladesh because he was a Hindu.

28. A key issue before the Tribunal remains whether there is a real chance of serious or significant harm to the applicant based on being a Hindu practitioner and a member of a Hindu organisation elsewhere in Bangladesh.

29. The Tribunal pointed out to the applicant in the hearing the statistics provided by NGO Ain o Salish Kendra in the independent information cited in this decision of deaths and injury, violence and vandalising (in 2014, 2015, and 2019 respectively).

30. The Tribunal is conscious of the dangers of the ‘safety in numbers argument’.  In this respect, it notes the decision in SZSSM v Minister for Immigration and Anor [2013] FCCA 1489 (11 November 2013) in which Driver J cautioned that the assessment of risk may be real notwithstanding a low probability of harm facing any individual. MZAKC v Minister for Immigration and Anor [2016] FCCA 834 (14 April 2016) suggests that a statistical analysis is not impermissible provided that the applicant’s particular circumstances were also properly considered.

31. The Tribunal asked the applicant in the hearing if there were any matters, particularly regarding the way that he practised Hinduism, such as being orthodox, that would increase the risk to him based on being Hindu, outside of his local village area. In response, the applicant referred just to the risk of him being harmed everywhere in Bangladesh, without referring to particular circumstances that relate to him, beyond being a Hindu, that would exacerbate the risk.

32. The Tribunal is inclined to consider that the numbers of reported instances of harm to Hindus, either in terms of deaths, injury, or damage to homes (which would be relevant to the applicant in the context of serious or significant harm), in the context of a population of approximately 13.5 million Hindus, does not lead to a real chance of serious or significant harm for any Bangladeshi Hindu.  Even if the reported figures in these categories (as compiled by Ain o Salish Kendra as outlined in this decision) were to be multiplied by 10, it would lead to a statistical chance of death, physical harm or an incident of damage or vandalising of property of less than one tenth of one per cent in any given year.  Even considering the risk several years into the future would lead to a risk of well less than one per cent.

33. As discussed with the applicant in hearing, the DFAT information indicates that there are a number of ‘Hindu belts’ where Hindus comprise 40% of the population. There are a number of exclusively Hindu villages. Further, Hindus live in Dhaka. In response in the hearing, the applicant maintained that there is a risk for Hindus from Muslim extremists everywhere in Bangladesh.

34. The Tribunal also notes that DFAT assesses that there are no legal impediments to internal relocation within Bangladesh, and that Bangladeshis can and do relocate for a variety of reasons.  There are greater opportunities for employment in larger cities such as Dhaka and Chittagong.

35. The Tribunal in the hearing indicated that it was not inclined to accept that independent information as to instances of harm faced by Hindus in Bangladesh demonstrated such instances of harm that every Bangladeshi Hindu would face a real chance of serious or significant harm in Bangladesh. DFAT’s assessment was that Hindus face a low risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions. DFAT assesses that Hindus face a risk of physical violence in the form of mob attacks triggered by local factors, but these are relatively uncommon; and from sporadic attacks by Islamic militants.

36. Also relevant to relocation for the purpose of the complementary protection criterion, is whether it would be reasonable for the applicant to relocate. The Tribunal explored with the applicant in hearing why, apart from the risk of harm elsewhere in Bangladesh from extremists, it would be unreasonable for him to relocate. The response focused on concern by the applicant for his safety everywhere in Bangladesh based on being a Hindu. The Tribunal accepts that the applicant has this subjective fear of relocating within Bangladesh combined with having practical issues of relocation in terms of having to settle and find employment in a new place.

37. The Tribunal gave the applicant, following the hearing, the opportunity to provide further written submissions and independent information on these issues. Independent information and a submission were provided following the hearing, on 13 November 2020.

38. Provided were articles and media reports referring to difficulties and instances of specific attacks faced by Hindus in Bangladesh. There is reference to the population of Hindus in Bangladesh declining significantly over time as a result of difficulties faced by them. There is reference to ethnic cleansing of Hindus in Bangladesh. One article provided posits that there will be no Hindus left in Bangladesh after the next 30 years.

39. In the submission, references are made to Ain o Salish Kendra statistics of instances of harm faced by Hindus in the first half of 2020. Reference is made to media and other independent information which counters the statistics compiled. It is indicated that there are other reports of significantly more instances of harm against Hindus in various categories that have been compiled by Ain o Salish Kendra in the first half of 2020. As noted above, the Tribunal, in its analysis, has multiplied the statistics provided by Ain o Salish Kendra by 10, which would still, in the Tribunal’s view, lead to a statistical risk of harm based on being Hindu as remote, given the number of Hindus in Bangladesh.

40. In the submission provided on behalf of the applicant, it is indicated that the applicant will be identified as an outsider wherever he relocates to within Bangladesh because he will be identified by his dialect. He will be questioned wherever he relocates to about leaving his own area, and they will find out about his minority status. There may even be attempts to contact extremists in the particular area and provide information to them about the applicant.

1. It is submitted that the DFAT information is incorrect and that there is no longer a Hindu belt in Bangladesh anymore. This is because many Hindus have left Bangladesh and land has been taken by Muslims.

2. One translation of an article is provided, dated 11 July 2020, making reference to minority persecution during the COVID-19 pandemic. This has increased because of tension created by lockdowns. A number of instances of attacks and harm suffered by minorities are cited as occurring in April 2020.

3. It is submitted that recent issues and commentary towards Muslims in France has heightened Muslim Hindu tensions in Bangladesh. It is submitted that often those targeting Muslims in Bangladesh are government supporters.

4. Based on all of this evidence and information, the Tribunal assesses whether the real chance of serious harm for the applicant, which the Tribunal accepts that he faces in his home area, relates to all areas of Bangladesh. Such a requirement is necessary pursuant to s.5J(1) for the purpose of the refugee criterion.

5. Whilst there is evidence, including that provided by the applicant, of difficulties and instances of many attacks faced by Bangladesh Hindus, in the context of the statistical information put to the applicant (multiplied by many factors), and the DFAT information that does not suggest widespread and systemic serious harm suffered by Hindus in Bangladesh, the Tribunal is not satisfied that the applicant faces a real chance of serious harm based on being Hindu in all parts of Bangladesh. This is including on the basis that the Tribunal accepts that the applicant is a devoted and serious practitioner of his Hinduism. In order to make a finding of a risk to the applicant everywhere in Bangladesh, the Tribunal would likely need to be satisfied that every devoted and serious practitioner of Hinduism in Bangladesh faces a real chance of serious harm. The Tribunal is not satisfied of this on the evidence before it. The Tribunal is, further, not satisfied that the applicant has any additional quality or characteristic, beyond being a devoted and serious practitioner of Hinduism, that would increase the risk to him in other parts of Bangladesh.

6. Given that the Tribunal is not satisfied that the real chance of the applicant facing serious harm based on the practice of his Hinduism extends to all parts of Bangladesh, the Tribunal considers that the applicant does not meet the refugee criterion.

7. That leaves determination by the Tribunal of the complementary protection criterion. As indicated, the Tribunal is satisfied that the applicant faces a real risk of significant harm in his home area based on the practice of his Hinduism, as a result of him and his family having been targeted by local Muslims over a significant period.

8. In terms of considering relocation for the purpose of the complementary protection criterion, the Tribunal must consider whether it is reasonable for the applicant to relocate to an area of Bangladesh where there would not be a real risk that he will suffer significant harm (s.36(2B)(a)).

9. For the same reasons as indicated in relation to the refugee criterion, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in all parts of Bangladesh based on his Hinduism. That then requires the Tribunal to determine whether it would be reasonable for the applicant to relocate.

10. Significant for the Tribunal in the determination of reasonableness is the fact that the applicant felt that he could not previously relocate within Bangladesh to escape the problems he had faced in his home area as a result of his practice of Hinduism. As indicated, the Tribunal accepts that the significant motivation of the applicant in relocating to India was to avoid the problems he had faced as a Hindu in his local area. The fact of the applicant not relocating within Bangladesh demonstrates to the Tribunal a combination of a continuing subjective belief of harm based on being Hindu in all parts of Bangladesh, combined with practical impediments to relocation.  The latter would include hurdles in settling as a minority group (being Hindu) integrating into a new community and finding suitable employment. Such hurdles would potentially be minimised in India, given its majority Hindu population. The Tribunal considers that it would be a significant struggle for the applicant to integrate and make a life for himself somewhere away from his close and supportive family, who the Tribunal accepts have been core to providing emotional support for the applicant. Cumulatively considered with these factors are current difficulties that the applicant would face in resettling somewhere new in Bangladesh due to the COVID-19 pandemic. Evidence has been provided on behalf of the applicant of increases in attacks on minorities as a result of the pandemic, which the Tribunal accepts as plausible. In the Tribunal’s assessment, the pandemic would make the applicant the subject of greater scrutiny, attention and potential suspicion as an outsider. This is one factor that goes to the reasonableness of relocation.

11. Whilst it has been a finely balanced decision, the cumulative impact of all of these matters result in the Tribunal forming the view that it would not be reasonable for the applicant to relocate within Bangladesh.

12. Given these findings, the Tribunal is satisfied that the applicant meets the complementary protection criterion.

13. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country.

14. In summary, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm in his home area. The Tribunal is not satisfied it would be reasonable for the applicant to relocate to a part of Bangladesh where he would not face such harm.

15. 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).

16. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

    David McCulloch
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

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

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

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …