1621102 (Refugee)

1621102 (Refugee) [2020] AATA 5612 (17 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621102
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Roslyn Smidt
DATE:17 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2020 at 8:41 am
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – religion – Buddhists – harassment from local Muslims – targeted by members of JI – false murder charges – fraudulent document–applicant was not a credible witness –credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 17 May 2016. The delegate refused to grant the visa on the basis that he did not find the applicant to be an entirely credible witness and did not accept that he genuinely feared harm in Bangladesh.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of 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.
IDENTITY ISSUES
The applicant arrived in Australia [in] April 2016 on an Indian passport issued in the name [Name 1] [in] March 2015. He later provided a copy of a Bangladeshi passport which was issued [in] 2014 in the name [Name 2]. He states that the Indian passport was obtained by fraud, that he is a citizen of Bangladesh and that the details on his Bangladeshi passport are correct, apart from his name which is [Name 3], not [Name 2].
In addition to his Bangladeshi passport the applicant has provided copies of a Bangladeshi birth certificate, a Bangladeshi National ID card, an undated identity card from the Bangladeshi police and several school and university documents, all of which give the name [Name 3].
I accept that the applicant is [Name 3] and that he is a citizen of Bangladesh. I accept that the passport issued in the name [Name 1] was fraudulently obtained and the applicant is not a citizen of India.
BACKGROUND
The applicant is a [age]-year-old single man of Buddhist religion from Cox’s Bazar in Bangladesh. His parents and two younger siblings remain in Bangladesh. His father has a [business]. His brother is in Dhaka. His sister is still at school.
The applicant’s family are members of the Barua Buddhist community in Cox’s Bangladesh where his father had a [business]. The applicant commenced a [university] degree in 2011. He ceased or suspended his studies when he gained entry to [a workplace] in Chittagong in March 2012. He underwent [training] from [March] 2012 to [September] 2012 after which he was appointed as [an occupation]. He was a member of [a specified section] in Chittagong City throughout his time in the [workplace]. Chittagong City is located about 150 kilometres from Cox’s Bazar.
The applicant left Bangladesh for India in November 2014. He resided in India, mostly illegally, until April 2016 when he came to Australia.
SUMMARY OF CLAIMS
The applicant claims that he is at risk of serious harm in Bangladesh primarily because of his involvement in lodging a complaint with the local police following violence against the Buddhist community in his local area in September 2012. He claims he was unable to return to his village following this because his life would have been in danger from the people named in this complaint or their associates. He claims that members of his family were harassed and attacked by these people, forcing his brother to flee to Dhaka where he remains in hiding. He also claims that he was falsely accused of involvement in the murder of a member of a group associated with Jamaat-e-Islami in 2014, that a warrant was issued for his arrest in relation to this murder and that he was forced to flee Bangladesh as a result.
The applicant claims that Buddhists are generally at risk of serious harm or discrimination in Bangladesh because of their religion.
COUNTRY INFORMATION
The situation for Buddhists in Bangladesh
The following is intended to provide a context for the applicant’s claims. Unless otherwise stated it is based on DFAT Country Information Report Bangladesh dated 22 August 2019.
The Bangladesh Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religions, 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.
According to a 2016 report by the UN Special Rapporteur on freedom of religion[1] people interviewed by the rapporteur stated that people generally live peacefully together across religious divides in Bangladesh, for example they frequently attend each other’s religious celebrations. The report observed that while the threat of Islamic extremism cannot be denied, this was generally viewed as originating from an “abuse” of religion for political gains.
[1] UN Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief on his mission to Bangladesh, A/HRC/31/18/Add.2, 22 January 2016, (Special Rapporteur Report), pp 4–5.
Buddhists are a small minority in Bangladesh, with most Buddhists being indigenous people living in the Chittagong Hill Tracts (CHT). Disputes between predominantly Muslim Bengali settlers and indigenous groups in the CHT from minority religions occur frequently, particularly over land ownership and usage with Muslim settlers. While some of these disputes may take on religious overtones, DFAT assesses that in most cases religion is a contributing factor rather than a causative one.
There have been occasional instances of societal violence elsewhere in Bangladesh that have targeted Buddhists based on religion. The most serious incident occurred in September 2012, when up to 25,000 Islamists burned several Buddhist temples and approximately 50 Buddhist houses in Cox’s Bazar during protests against a Facebook posting by a Buddhist man that showed a desecrated Koran. DFAT understands an effective police response to the incident prevented further violence, and that Buddhist leaders blamed the violence on outsiders rather than the local Muslim community. Separately, Islamist militants in the CHT killed one Buddhist monk in May 2016 during the wave of militant attacks against minorities.
The Buddhist community in Cox’s Bazar has expressed strong concerns that local anger against the persecution in Myanmar of the Muslim Rohingya population may lead to a violent backlash against local Buddhists. DFAT understands Bangladeshi authorities have deployed additional police in Buddhist areas in Cox’s Bazar to prevent a repeat of the Islamist protests that targeted Buddhists in 2012. There have been anecdotal reports of harassment of some Buddhists in Dhaka and elsewhere in relation to the Rohingya issue.
The Barua are a large Buddhist group living in the CHT. They speak Bengali and many do not identify as indigenous. The majority live among other Bangladeshis in Chittagong, but DFAT understands that a substantial Barua community still resides in the CHT. DFAT is not aware of any tensions in the CHT between Barua and other ethnic groups. DFAT assesses that most Barua, particularly those living in Chittagong, do not face social discrimination and violence based on their ethnicity. Barua who identify as indigenous and who live in the CHT face a moderate risk of experiencing official or societal discrimination.
An article published on 1 October 2012[2] which reported on the violence and destruction in Cox’s Bazar reported that the violence followed the publication of what was believed to be pictures of people abusing the Koran and clashes between Muslims and Buddhists in Myanmar. It states that the local deputy police chief some 200 people had been arrested by that time. There is no mention of any JI involvement.
[2] 'Bangladesh deploys troops to guard Buddhist neighbourhoods', Globe and Mail, The (Canada), 01 October 2012, CX296702
An article published in October 2019[3] gives further insights into the situation. It reports that most of Bangladesh’s 1 million Buddhists live in Chittagong, the CHT and in Cox’s Bazar areas, with about half residing in the Cox’s Bazar area. It states that Baruas are a well-to-do Buddhist community in Bangladesh, many of whom are professionals such as doctors, engineers and teachers. It reports that following the violence in 2012 Prime Minister Hasina visited temples in the affected area and ordered the government to help rebuild the monasteries.
[3] Kalinga Seneviratne, Bangladesh Buddhists Live in the Shadows of Rohingya Fear
The quotes local Buddhist leaders who reported that the government had provided protection to the Buddhist community, including armed police guards for temples. They described relations between Buddhists and Muslims in the Cox’s Bazar area as reasonably friendly and respectful prior to the attacks of 2012. It notes that many in the local Buddhist community believed that the attacks were instigated by Rohingya Muslims from Myanmar, not local Muslims. Wherever the responsibility for the attacks lies, the article observes that the attacks appear to have had a lasting impact on local Buddhists with some reporting that they no longer try to preach or even talk about their religion out of fear of future attacks. However, other Buddhists interviewed for the article said that local Muslims and Buddhists continued to attend each other’s festivals.
Jamaat-e-Islami
Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh. It is committed to the creation of an Islamic state. Chittagong is one of the party’s strongholds.
Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal and rural-based, while the BNP has traditionally been more accommodating of political Islam, conservative and urban-based, although it has worked to cultivate close ties with some conservative Islamists in recent years. The AL has been in power in Bangladesh since 2008. During that time has significantly restricted the activities of opposition political parties, particularly the BNP and JI. In 2014 DFAT reported that since 2008 high-profile members of both parties had been arrested and there had also been allegations of disappearances, kidnappings and use of false charges, although these practices had diminished over time.
According to DFAT reports, JI violence and AL repression have both increased since 2014. JI strongly supported the Pakistani army during the Liberation War and five leading members were convicted of war crimes committed during that war and executed between December 2013 and September 2016. In response JI has periodically held major strikes and violent demonstrations across the country and the authorities have detained thousands of JI members in counter-terrorism operations. There have also been enforced disappearances. Senior JI leaders have been particular targets and few remain free and active. Other targets have included prominent leaders, youth wing members and, in some cases, family members. Lower-level JI members have reportedly been able to avoid the attention of authorities either through the paying of bribes to AL leaders or by physically relocating and the situation appears to be better for JI members in villages than in cities.
FINDINGS OF FACT
For the following reasons I did not find the applicant to be a truthful or a credible witness.
Problems during and after 2012 violence
The applicant has consistently claimed that he and his family were amongst the victims of the violence which occurred in Cox’s Bazar in 2012 and he was targeted by members of a group associated with Jamaat-e-Islami because of a complaint which he made to the police regarding the perpetrators of that violence.
Statement dated 16 May 2016
This statement is somewhat difficult to follow due to problems with the language. It states that the problems began in September 2012 and appears to suggest that fundamentalist and local political leaders, including Jamaat-e-Islami leader [Mr A] were the instigators of this violence. At the time he was involved in several local Buddhist organisations and was an eyewitness to the violence.
[In] October 2012 the applicant and another local man lodged a first information report naming Mr [A] and others with the local police. The police attempted to arrest them but without success. After that Mr [A] and other terrorists entered the applicant’s house illegally and beat his parents and other family members. His father was injured, and his business stopped. The men threatened to kill the applicant if he did not withdraw the complaint. They involved many people to act as spies to find the applicant. The applicant was forced to flee and stayed with a relative in Chittagong for about [number of] days.
In support of these claims the applicant provided:
· A letter from [Organisation 1] dated [September] 2016 which states that the applicant and his family had been victims of the 2012 violence and that the applicant was in danger because he had been an informant in a criminal case.
· An FIR dated 1 October 2012 which accuses nine men including Mr [A] and another 100–150 men of attacking the applicant’s Buddhist temple. It suggests that the applicant was present and attempted to confront the attackers before fleeing for his safety. The attackers looted the temple and then came to his home searching for him. He was not there but his parents were assaulted and the temple and his home were destroyed.
The applicant also provided several reports on the 2012 violence including:
· A report from a website [which] states that the police brought the violence under control relatively quickly, that the man accused of posting the offending photograph which sparked the violence was given police protection and that political leaders condemned the violence.
· A report which appears to be from Wikipedia which notes that some Rohingya refugees were suspected of involvement in the violence and that Tofail Ahmed, a local leader in Banddarban who was a prime suspect in the attack, had been ordered to surrender to the court. It also reports that the Prime Minister had ordered the army to rebuild temples destroyed in the violence and provided funding for this.
Statement provided on 7 November 2016
The applicant asked that his first statement be replaced as the earlier statement was prepared with the assistance of someone in or from Bangladesh and it contained many errors due to miscommunication.
According to this new statement the applicant was at home on leave from [in] September 2012 when a large group of Muslim fundamentalists organised by JI and students from a local madrassa (Muslim school) attacked his village causing much destruction. He said that his family was amongst the victims, but did not provide any details of the harm they experienced. As he held responsible positions in the local Buddhist community, he and another man lodged a complaint naming some of those involved in the violence and he became a plaintiff on behalf of his organisation and the local community.
[In] October 2012 he returned to his work as [an occupation] in Chittagong City. At that time no action had been taken against people accused of being involved in the violence. In November 2012 the police attempted to arrest some people, but the main culprits including Mr [A] were able to escape. Mr [A] began to threaten his family in an attempt to make him withdraw his complaint. On one occasion Muslims tortured his father at the local market.
The statement provides no information on the period between late 2012 and February 2014 when the applicant claims a member of JI was murdered (see below). These events were not discussed in detail during the delegate’s interview.
Evidence to the Tribunal

On 28 November 2020 the applicant provided pictures. One shows Buddhist monks at a demonstration expressing concern for their future safety in Bangladesh. It appears to have been held [in] August 2019. Most of the others show people who appear to have been killed or injured. Most of the photographs do not include any text and are not accompanied by an appropriate translation. According to the applicant the photographs show Buddhists who have been victims of violence between 2016 and 2020.
The applicant attended a hearing which was held on 7 December 2020 and 14 December 2020.
The applicant said that he had [some] leave in September 2012 and was at home with his family in Cox’s Bazar when the violence began. He said that members of JI and other Muslims were responsible for the violence which began on one day and ended on the following. He and his family took shelter in a nearby school and escaped injury, but their home and local temple were destroyed. The police responded and quelled the violence, but because the area was remote, they took some hours to arrive in force. The applicant and his family stayed with an uncle whose house had not been destroyed for about two weeks while their house was rebuilt. It was not as good as the house which had been destroyed, but his parents and sister still live there.
Following the violence, a number of local Buddhist leaders lodged FIRs naming people who had instigated or been involved in the violence. [In] October 2012 the applicant and another leader from the same temple lodged an FIR about the situation with their temple. The applicant’s evidence regarding this FIR was somewhat confused, but it was established that it stated that [number of] people were involved in the violence at his temple and the FIR named four of them, including a man called [Mr A]. The applicant said that he heard that one of the four people named in the FIR had been briefly detained and then released. Some other people were arrested and charged but not the people he had named.
The applicant took an extra [number] days’ leave and returned to his job [in] Chittagong City [in] October 2012. He did not face any further problems before returning to Chittagong because of the presence of police and army in the area. However, he said that the other signatory to the complaint was beaten and injured [after] one of the men named in their FIR was detained and released in late 2012 or early 2013. When asked about the fate of other leaders who had lodged FIRs making allegations against those involved in the violence he said that they had also been forced to leave the area and go into hiding. He said that he had not returned to his home in Cox’s Bazar after October 2012.
I asked the applicant if his family had experienced any problems after he returned to Chittagong in October 2012. He initially said that they had only faced minor problems, but then said that they were constantly threatened by people who were searching for him and that the situation was so bad that his brother had left about four years ago and was in hiding in Dhaka. He also claimed that his father had been beaten by people associated with [Mr A] about a month ago because they had been wrongly advised that he (the applicant) had returned to Bangladesh and were looking for him.
The applicant said that his family had continued to be harassed by people angry about the FIR following 2012. Because of the continuing threats against him (the applicant) his brother had been forced to flee in about 2016 and was in hiding in Dhaka and in October 2020 his father had been beaten by men who had heard a false rumour that he had returned to Bangladesh and came looking for him.
I advised the applicant that I had difficulty accepting these claims. I noted that country information suggested that the violence mainly involved people from outside the area, not local Muslim leaders and that none of the evidence suggested that JI had played a leading role in the violence. I also noted that the evidence suggested that JI had faced repression by the ruling Awami League since it came to power in 2008 which was at odds with his evidence regarding the ability of local leaders to avoid problems following the violence in 2012.
The applicant maintained that his claims were true.
Conclusions
The violence against Buddhists in parts of Cox’s Bazar in 2012 has been well documented and I accept that the applicant’s family home may have been destroyed at that time. However, I found much of his evidence regarding the events of 2012 and the problems he and his family faced as a result lacking in credibility.
In the first place, the applicant’s evidence regarding the events of 2012 and the problems which followed was confused and unpersuasive. According to his initial statement and the FIR provided in support of the claims in that statement, he confronted the people who attacked his local temple in 2012 and the perpetrators of the violence came to his home on the day of the violence and assaulted his parents. When asked about his experiences during the violence in 2012 at the hearing he said nothing about confronting the attackers at the temple or anywhere else, nor did he suggest that any member of his family was attacked or injured during the violence. He said that he and his family sheltered at a school and none of them was injured. In considering these claims I have noted the applicant’s submission that the information in the statement of May 2016 contained some errors. However, even if I accept this claim, it does not explain why the account of events in the FIR he provided is significantly different from the account provided during the hearing.
Secondly, the applicant’s claim that local JI leaders played a leading role in instigating or carrying out the violence in 2012 is at odds with the country information regarding these events, most of which suggest that the violence was mostly carried out by people from outside the local area and none of which suggest any involvement by JI. If JI had played a significant part in this violence, I believe it would have been reflected in the reports on the violence.
Thirdly, even if I accept that JI members had some involvement in the violence in the applicant’s local area (which I strongly doubt), I find the claim that the people named in the FIR lodged by the applicant escaped arrest and were able to continue to threaten him and harass his family over a period of years with impunity far-fetched and implausible. As noted in the country information section above, JI activities have been restricted and members of the party have frequently faced repression since the AL came to power in 2008. As also noted above, the authorities acted relatively quickly to stop the violence and continue to provide protection to the Buddhist community in the area. I am unaware of any evidence which suggests that there have been outbreaks of anti-Buddhist violence in Cox’s Bazar since 2012 or that Buddhists in the area are generally at risk of harassment or acts of violence from JI or Islamic fundamentalists or anyone else.
After considering all of the relevant evidence, I do not accept that the applicant or members of his family have been threatened or harassed by members or associates of JI or anyone else from 2012 until recently because he lodged an FIR accusing them of instigating or carrying out acts of violence or for any other reason. I find that he concocted these claims in order to support his application for protection in Australia.
In reaching this conclusion I have considered the FIR dated [October] 2012 provided by the applicant. However, as noted above, the information in this statement is at odds with the applicant’s evidence at the hearing. I believe that it is a fraudulent document obtained by the applicant or manufactured on his behalf to support the claims in his initial statement. In any event, even if I accept this document at face value (which I do not) at most it indicates that the applicant lodged a report with the local police which made allegations against a number of people. It provides no evidence regarding the actions taken by police in relation to these allegations or the problems faced by the applicant or his family after October 2012. As discussed above, I do not accept that the applicant or his family were threatened, harassed or harmed by members of JI or anyone else following 2012.
I have also considered the letter dated 5 September 2016 from [Organisation 1] which states that the applicant and his family had been victims of the 2012 violence and that the applicant was in danger because he had been an informant in a criminal case. As noted above, I accept that the applicant’s family home may have been destroyed during the violence in 2012. However, the letter provides no information regarding the applicant’s role as an informant in a criminal case and I have given it little weight as evidence of the problems he claims to have experienced following 2012.
I accept that the applicant’s family home was damaged or destroyed in 2012. However I do not accept that he or anyone else in his family was threatened or harassed or harmed by members of JI or anyone else because he lodged a complaint against people he believed were responsible for the violence with the local police.
Murder charges
Statement dated 16 May 2016
In this statement the applicant said that on 21 February 2014 some JI and rational activists (sic) attacked an Awami League celebration. One of the JI activists was shot and killed. A JI leader lodged an FIR accusing the applicant of involvement in this murder. At the time he was staying at a relative’s house in Chittagong. He arranged an appointment with a lawyer who told him there was no way he could expect mercy. He paid someone to obtain a Bangladeshi passport and Indian visa for him and [in] November 2014 he left for India.
Statement provided on 7 November 2016
The applicant said that [in] February 2014 a celebration organised by the Awami League in [Region 1] (his local area in Cox’s Bazar) was disrupted by local JI members. During the violence which followed a member of JI was shot and killed.
In July 2014 the applicant was called into the office of Chief [with] the [employer] in Chittagong City. He was advised that JI leader [Mr B] had lodged a complaint alleging that he was involved in a murder five months earlier in [Region 1]. The applicant said this was false and he could prove his innocence. The chief accepted this but told him that he was suspended from his job and that if he continued to work as [an occupation] he would be arrested. He was forced to leave his job.
The applicant said that he believed that the false accusation was related to the allegations he had made against Mr [A] in 2012. He stayed with a relative in Chittagong for about six weeks. While he was staying with this relative the local police in [Region 1] came to his home looking for him. His father told him not to return home.
The applicant decided that he should leave Bangladesh to escape arrest on the false murder charges. He found a broker to assist him to obtain a passport. The broker advised him to change his name to avoid problems, so he added the name [Name 2]. He contacted a relative of one of his neighbours who was the abbot of a temple in India who told him that he could shelter at the temple for a few days after arriving in India. After obtaining a passport he left quickly for India.
According to the delegate’s decision the applicant repeated the substance of these claims during the interview held on 14 November 2016. In support of these claims he provided:
· An FIR dated [February] 2014 lodged by [Mr B] which states that [in] February 2014 the applicant and five other named people and 10 to 12 unidentified people attacked a gathering of activists associated with [Mr B], one of whom died. It does not provide the political affiliation of [Mr B] or anyone else.
The delegate observed that country information from DFAT indicated that it was easy to obtain false FIRs and other documents in Bangladesh. The applicant maintained that the documents which he had provided were genuine.
Evidence to the Tribunal
At the hearing the applicant again claimed that he had been accused of involvement in the murder of a JI member in February 2014. He said that JI had lodged an FIR accusing him of involvement. He was not present during the incident. He was at work with [colleagues] at the time. He said that he believed that Mr [A] was behind the accusation but agreed that this was speculation and not based on any evidence. He said that in July 2014 when he was residing in Chittagong his [supervisor] had advised him that there was a murder case against him following a complaint by a JI leader and that he would be suspended from duties until he could prove his innocence. The [supervisor] advised him to go into hiding to avoid arrest and to wait and see what happened. I noted that an FIR is simply an allegation and asked if he knew what investigations had been carried out and whether any charges had been laid. He said that a friend had told him that a warrant had been issued for his arrest and sent to his workplace and that the local police had gone to his home in Cox’s Bazar looking for him. He also claimed that JI leaders had gone to his parents’ home.
I advised the applicant that I had difficulty accepting that he would have been charged with murder in the circumstances claimed. I observed that if he was at work [in] Chittagong when the incident took place it would have been easy for him to prove that he was not involved. I also advised him that the authorities would have acted on a complaint from a JI leader given the problems which JI faced with the AL government and that the incident occurred during a JI attack on an AL celebration. The applicant maintained that his claims were true. He said that it was not uncommon for people to face false charges in Bangladesh and he may have been targeted because he belongs to a minority. He said that he had a good [job] in Bangladesh and that such jobs were hard to obtain and he would not have left his homeland if he had not been at risk of serious harm.
The applicant said that he had hidden at his uncle’s home in Chittagong. On the advice of an agent he obtained a passport in a different name to avoid being arrested. I noted that he had stated in his initial application that he had held a Bangladeshi passport prior to obtaining his current passport [in] 2014. I also noted that his former passport is mentioned in his current passport and asked how he was able to obtain a passport in a different name in these circumstances. He said that he paid an agent who obtained the passport for him and he did not know the details.
I asked the applicant why he had not sought protection in India. He said that nobody had suggested this possibility to him.
Conclusion
I find the claim that the applicant was charged with murder in 2014 following a false complaint by a JI leader far-fetched and implausible and I do not accept it as true.
In the first place, as discussed above I do not accept that the applicant was targeted by a JI leader or anyone else because of a complaint he lodged in 2012 and it follows that I do not accept this motivated another JI leader to lodge a complaint against him in 2014. The only other explanation for the 2014 complaint was the applicant’s Buddhist religion. As discussed below, the evidence does not suggest that Buddhists such as the applicant are generally at risk of serious harm and I am not persuaded that a JI leader would have falsely accused him of murder in 2014 merely because of his religion.
Second, and more significantly, as discussed above, JI members have faced repression and many JI leaders have been arrested since AL came to power in 2008. I do not accept that [an employee] who was at work [some] [number] kilometres away from the scene of the crime would have been charged with murder because a JI leader made a complaint against him, particularly as the alleged offence took place when JI members disrupted a celebration by the ruling AL.
In reaching this conclusion I have noted the FIR dated 22 February 2014. As pointed out by the delegate fraudulent FIRs can easily be obtained in Bangladesh. I also note that the FIR provides no information on the political affiliation of [Mr B] or the circumstances of the alleged attack on his activists, nor does it confirm that the applicant was charged with murder or suspended from his [position]. In these circumstances and in light of my findings regarding the credibility of the applicant’s claims regarding the 2014 murder charges and the problems he faced following 2012 I have given little weight to this document.
I have also considered the applicant’s claim that [his job is] hard to obtain in Bangladesh and he would not have left his job as [an occupation] if he had not been at risk of serious harm. I accept that [the specified jobs] may be difficult to obtain in Bangladesh but the mere fact that the applicant left a good job is not evidence that his stated reasons for leaving that job are true. I do not know why the applicant decided to leave his job and his homeland in 2014, but I do not accept that he fled because he had been targeted by members of JI or falsely accused of murdering a JI member.
On the evidence currently before me I am not satisfied that the applicant was falsely accused of murder by anyone for any reason in 2014.
Problems related to the applicant’s Buddhist religion
In his statement provided on 7 November 2016 the applicant said that his village was surrounded by Muslims and since childhood Buddhists in the area had not had religious freedom because of harassment from local Muslims. He said that Buddhists were a small minority in Bangladesh and suffered not just on religious grounds but in areas such as financial security.
At the hearing the applicant confirmed that he had not experienced any problems because of his religion prior to September 2012.
I advised the applicant that I was aware of the violence in Cox’s Bazar in 2012, but it was my understanding that the Bangladeshi government had moved quickly to provide protection to Buddhists in the area and that they continued to provide this support. I advised him that advice from DFAT suggested that while Buddhists with his background may face occasional problems, they were not generally at risk of serious harm because of their religion. The applicant said that Buddhists continue to be at risk of violence and provided examples of people he claimed had been attacked or killed.
I accept that the applicant is a Buddhist. However, I do not accept that he has faced significant problems practising his religion since childhood as claimed in his November 2016 statement or that he faced significant problems of any kind prior to his departure from Bangladesh because of his religion apart from during the events of late September 2012. The issue of future harm for reasons of religion is addressed below.
The applicant’s residence in India
The applicant states that after travelling to India in 2016 he was ordained as a novice Buddhist monk so that he could continue to live with the community he had contacted prior to leaving Bangladesh. After his initial visa expired, he obtained an Indian passport by fraudulent means in order to remain in the country. He used that passport to travel to [various countries]. He never felt secure in India and when the authorities began to investigate people who had obtained false documents, he asked a travel agent to obtain a visa so he could travel to [other countries]. He obtained a visa for Australia where he stayed with members of the Barua Buddhist community and sought protection.
I accept the applicant’s account of his time in India. At the hearing I explained to the applicant that as he was not a citizen of India his treatment there was not relevant to his current application.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet the refugee criterion?

As discussed above, I do not accept that the applicant was threatened or harassed by members of JI or other Islamic extremists or anyone else because he made a complaint against them in 2012 or that he was falsely accused of murder by JI members or anyone else in 2014. It follows that I do not accept that there is a real chance that he will suffer serious harm on return to Bangladesh for these reasons.
I accept that the applicant is a Buddhist.
As discussed above, the constitution of Bangladesh designates Islam as the official religion but also guarantees equal status and rights to minority religions including Buddhism and prohibits discrimination and persecution on the basis of religion. The evidence also indicates that Bangladesh has a history of pluralism and tolerance in relation to religion and people generally live together peacefully and are able to practise their religion freely. That said, it is also clear from the evidence that Buddhists can experience discrimination, harm and even violence for reasons of religion particularly in the CHT region where Buddhists who belong to indigenous ethnic groups have been victims of illegal land appropriation and physical violence and there have also been instances of societal and Islamist violence, most notably the event in Cox’s Bazar in 2012. However, in my view the evidence does not suggest that these problems are so widespread and frequent that Buddhists in Bangladesh are generally at risk of experiencing serious or significant harm. I also note that the government’s response to the 2012 violence and continued deployment of security forces to protect Buddhists in Cox’s Bazar demonstrate a willingness to protect and support Buddhists and their places of worship.
Apart from the destruction of the applicant’s family home and being forced to shelter during violence in September 2012, which I acknowledge was a serious and no doubt terrifying experience, there is no credible evidence that he or members of his family have experienced any significant harm or discrimination because of their religion. The applicant was able to attend university but decided to leave in favour of a job as [an occupation]. According to his own evidence positions of this kind are much sought after in Bangladesh.
In these circumstances and in light of my findings regarding the general situation of Buddhists in Bangladesh, I am not satisfied that there is a real chance that the applicant would experience serious harm for reasons of religion within the reasonably foreseeable future if he returns to Bangladesh.
In considering the applicant’s case I have noted that he is a Barua Buddhist. No specific claims have been made in relation to his Barua ethnicity or background. Nevertheless, I have considered the possibility that the applicant might be at risk of harm for this reason. However, there is no evidence before me which suggests that he has experienced problems in the past because of his Barua ethnicity and the evidence does not indicate that Barua Buddhists are generally at risk of suffering serious harm because of their ethnicity or background.
In these circumstances, I am not satisfied that there is a real chance that the applicant would experience serious harm within the reasonably foreseeable future if he returns to Bangladesh because he is a Barua Buddhist.
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution if he returns to Bangladesh.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection criterion?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
The applicant’s claims in relation to this criterion are the same as those put forward in relation to the refugee criterion. As discussed above, I do not accept a number of these claims. I do not accept that he was threatened or harassed by members of JI or other Islamic extremists or anyone else because he made a complaint against them in 2012 or that he was falsely accused of murder by JI members or anyone else in 2014. It follows that I do not accept that there is a real risk that he will suffer significant harm on return to Bangladesh for these reasons.
I accept that the applicant is a Buddhist and of Barua ethnicity. However, as discussed above, there is no credible evidence which suggests that he experienced significant problems in the past for these reasons nor does the information on the situation in Bangladesh suggest that there is a real risk that he would suffer significant harm on return to Bangladesh for this reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion – s.36(2)
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). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…
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.
…
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.
…
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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…

Bangladesh Buddhists Live in the Shadows of Rohingya Fear - IDN-InDepthNews | Analysis That Matters 11 October 2019

[2020] AATA 5612

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