1621445 (Refugee)

[2021] AATA 747

1621445 (Refugee) [2021] AATA 747 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621445

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Melissa McAdam

DATE:24 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2021 at 11:02am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – fear of ex-wife’s influential relatives – ex-wife’s transgender and bisexual background – brother’s kidnapping – credibility issues – 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 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 14 April 2016.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

7. 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

8. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Protection Visa application

9. The applicant is a [age] year old man from Bangladesh.

10. He lodged his Protection visa application form on 14 April 2016, two days before his Subclass 489 visa was to expire.  In the form he did not provide his reasons for claiming protection apart from a handwritten “Applicant’s wife and family will cause him harm”.

11. In a later Statutory Declaration, dated 4 November 2016, the applicant set out the following information:

    a.He was born in Dhaka, Bangladesh. He is Sunni Muslim. In Bangladesh he was [an Occupation 1] of a [company].

    b.He is separated from his wife. Their relationship began in October 2013 and ended in March 2016.  They separated in Australia.

    c.His parents, two brothers and one sister live in Bangladesh.

    d.He was refused a student visa in 2012.

    e.He married his wife in 2013 and came to Australia in September 2014, from Bangladesh, as a dependant on her skilled work visa.

    f.Since his arrival in Australia he was subject to numerous incidences of physical and verbal abuse from his wife.  She assaulted him by kicking, punching, scratching and shouting at him on several occasions.  She used household items as weapons and threatened to kill him with a knife.  Her brother[threatened] the applicant’s family in Bangladesh.  He said if the applicant ever returned to Bangladesh the brother would kill him.

    g.His wife’s cousin is  [in] the Bengali Armed Forces. The applicant has heard stories of his abuse of power to Bengali citizens, in which the authorities cannot intervene.  His wife has threatened to have her cousin kill the applicant if he returns to Bangladesh.

    h.The applicant made efforts to resolve disagreements with his wife but is now fearful for his life as she and her brother have threatened to kill the applicant if he ever returns to Bangladesh. He moved out of the home and is living on his own. His wife’s behaviour has made him concerned for his safety.  He believes his wife is psychologically unstable due to her unprovoked incidents and assault towards him and his family. He is genuinely in fear for his life.

    i.He does not believe he will be safe in Bangladesh because his wife’s connections to the military outweigh the protection the state can offer him.

12. He submitted copies of the following documents:

    - his Bangladesh passport.

    - his Bangladesh Birth Certificate.

    - his statutory declaration dated 22 November 2015 in which he declares that if he obtains permanent residency by his wife’s paper then he will never get married again or divorce his wife; he will return her all the money and “mohrana” (3 lakh taka); that his family will never interfere with their life; and that “[Ms A][Ms A] never misbehave with my husband”.

13. An undated written submission by a non-disclosed author, contains the following information, describing the applicant in the third person:

    a.The applicant married his wife [Ms A] in 2013. She was living as a student in Australia from 2007.  She was granted a subclass 489 visa. Shortly after their wedding the applicant came to Australia as a dependent on her visa.

    b.[In] September 2014 the applicant arrived at [City 1] airport from Bangladesh.  On 30 September 2014 he travelled to [Town 1], NSW where his wife resided. Upon arrival his wife took a few hours to respond to his calls. When he managed to get in contact with her, she invited him over, initially only allowing him to stay with her for 2-3 days after which he would have to organise his own accommodation.  Confused at her sudden change of behaviour, he did not argue but managed to stay with her indefinitely.

    c.On 5 October 2014, the applicant was celebrating his religious holiday of Eid. In the spirit of the holiday, he called his wife’s uncle in Bangladesh to give his well wishes. During the conversation her uncle became involved and opinionated about the applicant and his wife’s marital issues. The applicant politely requested that he refrain from interfering and at this point the applicant’s wife became exceedingly frustrated with the applicant. She hit him by punching and kicking him 4-5 times. She started becoming hysterical, shouting and crying. She tried to call the police but the applicant calmed her down and helped her regain her composure.

    d.Around early-mid June 2015 during the Islamic religious holiday of Ramadan the applicant was partaking in the celebrations by fasting for the holy month. His wife was not fasting at the time however she did make some food to share with the neighbours.  Her neighbours enjoyed the food so much they requested her to make more for a party. After she cooked for them she began to feel used. The applicant sympathised with her and agreed that they were probably using her for her cooking. This sparked another argument and on this occasion she beat him over the head with a wooden spatula so hard that it broke. The attack resulted in a significant lump. He was in a great deal of pain but did not retaliate or return the abuse but he objected to her behaviour. She then proceeded to pick up a knife. She pointed the knife at him and said that she could kill him in his sleep. Again, the applicant reasoned with her to maintain her composure. However, he knew that she was mentally unsound and that his relationship was in jeopardy.

    e.Shortly after the latest incident, around mid-late June 2015 the applicant bought his wife a dress in celebration of Ramadan. She threw it in the bin asserting that it must have been the applicant’s brother who bought it.

    f.The applicant’s suspicions of his wife's behaviour became clear as he believed she was becoming involved with their housemate, [Mr A]. Their housemate [Mr A] had left his wife and children, often drank at home and invited numerous female companions to spend the night. The applicant became frustrated as his wife often consoled in [Mr A] after any arguments, however he perceived [Mr A] as a person of poor moral character.

    g.In between June to August 2015 the applicant’s wife proposed the idea of adopting her niece (biological brother's daughter) who lives in [Country 1] with her mother. She was adamant about adopting her because her brother and his partner had separated. When the applicant told her it was not a practical idea, given the child is in the mother's custody, the applicant became aggressive and began to beat him.

    h.His wife expressed to her brother that the applicant does not like his child in order to gain support. This led to another argument where she again became instantaneously violent. She began to beat him and this time she bent his finger in an attempt to break it. She also attempted to destroy his laptop.  At the time [Mr A] was nearby drinking alcohol with his brother.  The applicant’s wife consoled in him in front of the applicant and [Mr A] wrapped his arms around her to comfort her. [Mr A] then told the applicant to leave the house. The applicant refused and returned to his room. Ten minutes later the applicant’s wife knocked on the door where the applicant was and requested entrance. When the applicant opened the door he was confronted by [Mr A] and his brother. They intimidated and threatened him asking him again to leave the house. The applicant again refused as he was the one who was targeted by violence and abuse.  When [Mr A] realised that the applicant was not going to leave he offered to take the applicant’s wife to a hotel with him. Concerned for her safety the applicant pleaded with his wife in Bengali asking her to consider the risks of her actions and to reconsider going to a hotel room with a stranger. To his relief she declined [Mr A]'s offer.

    i.On 22 November 2015 the applicant’s wife made him sign a Statutory Declaration to the effect that if he wanted to be included in her application for a permanent transition visa then he will not remarry; he will never get his family involved in their marital issues; and he will repay all the money owed for the dowry even though they had not yet separated.

    j.[In] November 2015 the applicant was in the en suite of his room getting ready to go to work when he overheard his wife muttering profanities and derogatory remarks about him which were unprovocative by nature. When he came out of the bathroom he politely asked her to stop making the negative remarks. This triggered her once again and she began to physically assault him by punching and slapping him. One of the blows missed the applicant and hit the wall behind him creating a hole in the wall. She also scratched his back to the point that he was bleeding. She then bit his wrist, also to the extent that he drew blood.  He did not physically retaliate or defend himself against her abuse. To his surprise she then called the police. When the police arrived he was taken to the station and questioned.  She lied to the police when giving details about the incident. She fabricated a story regarding the applicant punching her in the breast and that she was in pain. However, as he explained to the police, she has a condition/medical issue on her breast which causes the pain to which she was receiving treatment from a medical centre. The pain was not inflicted by the applicant as asserted by her. He was then released without charge.

    k.In early-mid February 2016 his wife’s brother, [who] lives in Bangladesh went to the applicant’s father's home accompanied by two other men. He threatened the applicant’s father that if the applicant left his wife after they obtain their permanent residency he would kill the applicant. Up until this point, the applicant’s father knew very little of their relationship problems.

    l.The applicant’s wife had always suspected him of using her to gain permanent residency. However, he expended his efforts in trying to maintain their relationship. Through the years of abuse that he endured he constantly made efforts to resolve their disagreements. He never reported her to the police. He even suggested she seek counselling from her close family members in [City 1].  He stayed optimistic about their future together and hoped things would improve once they obtained permanent residency status.

    m.[In] April 2016 his wife called his family in Bangladesh shouting and swearing at them. Her brother also threatened her family threatening to beat and kill him if he was ever to return.

    n.He is fearful of returning not only due to her immediate family's threats but also because she has connections in the armed forces. Her cousin is [in the military] and the applicant recalls stories where he has given his men illegal orders against Bengali citizens for his own gain and benefit. He knows that even if he is to relocate they will track him down. He is concerned that the police would not help him if he was to return to Bangladesh. Her brother's role in the army would supersede the protection of the Bengali police. She has threatened to use her cousin against him. After exhausting his efforts, in late April he moved out and is currently living alone.

    o.He has been subjected to extensive physical and verbal domestic abuse by his former spouse. She has threatened his life and there is a real risk that he will suffer significant harm if he was to return to Bangladesh.  He cannot relocate as his wife’s connections in the military are unbounded and widespread. He does not have adequate and effective State protection available to him.

    Department Interview, 8 November 2016

14. The following is a summary of the information the applicant provided at his Department interview:

    a.The applicant worked in a private company as [an Occupation 1] in Bangladesh and helped run a family [business].  He obtained a [degree] in Bangladesh.

    b.He was unmarried before he married his wife.  He has no children.

    c.His wife was born in [year].  They met when her maternal uncle advertised for her marriage in a newspaper.  He contacted the uncle and then was in touch with her. They chatted some times over about six weeks and subsequently got married.  She returned to Bangladesh and they met two or three times.  The first time was in September 2013.

    d.The newspaper advertisement stated that she had a [qualification], was very religious and lived in Australia and they were looking for a well-educated religious boy.  He found that attractive.  She had [qualifications] and she lived in Australia.  He chose her because he was favourably impressed by her politeness and manners.  She assured him she would never harm or disturb him.  They married [in] October 2013.  They then lived together in the applicant’s house in Bangladesh with his family.  They would visit his wife’s family. 

    e.She returned to Australia in December 2013.  There was political chaos in Bangladesh at the time.

    f.His wife had [number] sisters, including elder sisters.  In Bangladesh culture younger sisters do not get married until their older sisters get married. She had one brother who is the eldest child.  Their parents had passed away.

    g.After she returned to Australia they spoke almost daily over the phone.  She had a temporary residence visa at the time.  There was no guarantee she would obtain permanent residence.  If she did not, she would return to Bangladesh.

    h.He came to Australia in 2014.  She applied for a visa for him on his behalf.  Initially she lived in [City 1] then she had to live in a remote area, [Town 1].  She said it would be difficult to live alone in a remote place so he should come to Australia.  His marriage to her was not based upon whether she got permanent residence.

    i.In September 2014 the applicant came to Australia.  His wife did not meet him at the airport.  She did not tell him anything about his visa.  She got very angry over the phone when he told her his visa had been approved.  She called him a condescending word for ‘you’ and told him not to call her again.  He still came to Australia because he had a responsibility to the marriage.  He tried to contact her from Dhaka before he came to Australia.  Sometimes she would answer and sometimes she would not. When she did she was not very cordial or eager. 

    j.He presumed she knew he was coming to Australia if not the exact date. She told him if you are coming to Australia do not rely upon me. When he came to Australia he first met her in [City 1].  She was living in [Town 1] but was at her uncle’s house in [City 1].  The applicant knew her uncle’s address.  The uncle had a business in [City 1].  The applicant met with his wife at her uncle’s business.  She was not very warm.  They then went to a nearby restaurant for food.

    k.The applicant fears returning to Bangladesh because of physical and mental torture from his wife.  She plays a double and triple role. She has different faces at different times. 

    l.The delegate put to the applicant that his wife is living in Australia so if he feared her he should return to Bangladesh.  He responded he has evidence of her abuse.  He has the 2015 Statutory Declaration form.  Before lodging his Protection visa application, his wife’s brother, who lives in [Country 1], went to the applicant’s family house in Dhaka in February and threatened the applicant’s parents.

    m.His wife went to [Town 1]. The applicant bought a car and went there a few days later. She became physically abusive in [Town 1]. 

    n.The delegate asked the applicant why he stopped his wife calling the police if he was the victim.  He responded that he did not know how to call the police.  She played a double role, she would bash him and then call the police.

    o.Their relationship ended in April 2016. Her family threatened the applicant’s family in February 2016.  His wife’s brother told the applicant’s parents that if the applicant leaves his wife before getting PR that is fine, but if he leaves her after getting PR, they will kill him. He does not know how his wife got the idea that he would abandon her.

    p.She forced him to separate from her.  She played a mysterious role.  They lived in a house originally. One day he discovered she was staying at another house.  When she applied for PR she forced him out of the house.  She used the owner to kick him out.  She moved house just so she did not have to include the applicant in her PR application.

    q.The delegate put to the applicant that it sounded like she did not want to include him in her PR application.  He responded that is true but at the same time she was angry that he told her to stop her abuse of him.

    r.The delegate put to the applicant that his wife did not include him in her PR application, according to the application form the department holds, so why would her family want to harm him. The applicant responded that his name was not included in her application which was made sometime in March.  She called his parents and used very abusive language. Her brother then called from [Country 1] and used similar language, threatening to even kill the applicant. The brother told the applicant that he would have to go back to Bangladesh. They would force him to return to Bangladesh.  His visa was to expire on 16 April so the brother insisted he must go back to Bangladesh before that date.  The brother said that the applicant did not behave well with his sister so the applicant would have to face the consequences.

    s.The applicant became angry in the interview and the delegate told him to calm down so the interpreter could understand. 

    t.The applicant’s wife and her brother talked which is why they got the applicant to swear the Statutory Declaration in 2015.  They threatened him.  The Statutory Declaration will be applicable if he goes to Bangladesh.

    u.His wife’s brother lives in [Country 1]. The applicant’s wife lives in Australia. The applicant’s wife’s brother and the applicant’s wife are threatening they will catch the applicant if he goes back to Bangladesh. The delegate asked how and why they would do that. The applicant paid his wife $8,500 after she demanded money.  He did not pay her the money to come to Australia.  She wrote a letter that she applied for PR and it has a price.  Initially he paid no money to marry.  After arriving in Australia, under duress, he paid money.

    v.His wife has a cousin who is [in] the army.  His wife’s brother rented a house from a police officer in Dhaka, [of] a very high rank.  His wife and her brother threaten the applicant that they have very good connections and will do the applicant harm.

    w.If he had done anything wrong here, his wife could have called the police. But he has done nothing wrong here. Basically they just want to bash the applicant. They can’t do this in Australia. If he goes to Bangladesh he will be an easy catch.

    x.He hasn’t tried to divorce his wife.  She says the applicant has spoiled her life. So if he divorces her he will be beaten, and if he stays with her he will be beaten, so he thinks he should try to protect the marriage. She takes his money, whatever money he earns.

    Delegate’s decision

1. The delegate accepted that the applicant was married and is now separated; that he experienced verbal and physical abuse from his wife; and that his family in Bangladesh experienced verbal abuse from his wife and her brother.  The delegate did not accept that the applicant fears for his life and safety if he returns to Bangladesh.

2. The delegate was not satisfied that the applicant's feared persecution was for any of the reasons provided in subsection 5J(1)(a) of the Act and found that he was not a refugee as defined in section 5H of the Act and the criterion in paragraph 36(2)(a) of the Act was not satisfied.

3. The delegate noted that the applicant’s wife had excluded the applicant from her permanent residency application.  The delegate could see no reason why the applicant’s wife would harm the applicant when it was her decision to exclude him from her application for permanent residency. The delegate found it incongruous that the applicant claimed his wife would harm him if he returns to Bangladesh when she has not provided him with a visa pathway to remain in Australia. The delegate noted that the applicant’s wife’s brother lived in [Country 1] with his family. The delegate also noted that at certain points during the interview, the applicant stated that his wife and her brother threatened that he must return to Bangladesh or they will harm him, rather than the claim in his protection application: that they want to stop him from returning to Bangladesh and if he does, he will be harmed by them.

4. The delegate did not find the claim that the applicant’s wife and her brother will harm the applicant if he returns to Bangladesh plausible.

   Information to the Tribunal

   Pre-Hearing Submissions

5. On 2 September 2020 the applicant submitted a further written statement and supporting documents to the Tribunal.  In his new statement he set out the following:

   I am a Bangladeshi by birth. I was born in an aristocratic family of the southern part of Bangladesh. I was born as a Muslim. My family is well-known in terms of social status and economic condition. Although my family is from [a] coastal district [of] Bangladesh, we have been living in our own house in the capital city Dhaka for a long time.
   My parents have four children. Among them three are sons including me and one is a daughter. I am the first child of my parents.

   My father is a retired senior government official. He joined [deleted] profession immediately after he had retired from service. He was also quite successful as a [professional] and he is well known in Dhaka court. My mother is a full time homemaker. My father is [age] years of age now. He was healthy before he suffered a stroke on March 26, 2016. He was active as a [professional] till that time. (I will gradually explain in my statement why my father suffered a stroke and why my mother died on May [date], 2019. I will gradually describe my sad story to the Honorable Tribunal.)
   I completed [a] degree from [a] college [in] [year] (an explanation of ‘session jam’ in Bangladesh is pertinent). My younger (2nd) brother is doing business in the country. He is married and lives happily with his wife and child. He was well off both financially and socially. However, his life has turned into a nightmare in the last few years because of me (I will explain the reasons in the course of my statement.) My aged father is currently living with my younger (second) brother in Dhaka. My mother also died this year in his care. Basically, that is all about my family. My parents own a large house and huge properties around the house in Dhaka. In absence of two of our brother my younger (second) brother is living with his family in Dhaka. He is taking care of the huge property of my parents and he is running his own business there. He receives a fixed amount of rent every month from my father’s [house]. In addition to that, he also gets a monthly income from my father’s land property and house rent from [the home district]. In terms of Bangladeshi currency (Taka.) his monthly income is 5 Lac (approximately AUD 8333 @60 Taka per AUD) which is a handsome amount in the socio-economic condition of Bangladesh.
   Our third brother is living in Australia as a citizen. He is unmarried. Our only sister [is] married and living happily with her husband and children in the southern District of Bangladesh, Barishal. Her family is well respected and financially solvent.

   I tried many professions after my post graduation. 1) I worked as [an Occupation 1] for 12 years. 2) Besides, with the support and inspiration of my father I also used to run a [business] in joint venture with my second brother. I was never unemployed. By and large, I was financially solvent.

   I was in a serious romantic relation a girl from my class. We were in love for 6 years. We promised to each other to get married once we are done with our studies. However, my ‘girlfriend’ cheated on me and moved to Australia in 1999 with another man. My ex-girlfriend is a divorcee now and she is living with her two children in [Australia]. However, I do not want to give out any details about her for the sake of confidentiality. I became very adamant after the breakup and decided to not to get married ever in my life. So, I became very busy with my father’s properties, business and my job after I finished my studies.

   Nonetheless, I would often put under pressure for getting married from my parents, relatives, and younger siblings for the sake social norm. I would silently ignore their pressure without protesting. I totally stopped getting close to girls after my ex-girlfriend had cheated on me. I would never feel any infatuation or love for any women. In fact, I grew an aversion for relation with woman. As my relatives noticed my aversion for woman, they gradually started to interfere with my sex affairs. Ignoring all of their curiosity, and suspicion, I concentrated in my job and business. When I was approximately [age] of years of age, there was a rumor from nowhere about me that I am a misogynist and ‘silent homosexual’. I was extremely hurt and let down with this fabricated slander. This is because I have never been a homosexual. In the social context of Bangladesh if any man does not get married within a ‘reasonable age’ or if he does not show interest in woman, it is quite common to be accused of homosexuality. In case of women they are less likely to accused of this and in their case the nature of accusation is different. I want to give an example of this to the Honorable Tribunal: In 2014, an influential Member of the Parliament and former minister of the Railways Mojibul Haque had to marry a woman who is younger to him by half of age at the age of 67. There were rumors and gossips about his personal life. He was also accused of homosexuality although he has never been a homosexual. [Details deleted]. When he was appointed as a minister there was request even from the Prime Minister Sheikh Hasina to get rid of the accusation. At last he gave in and got married in 2014 in order to getting rid of the accusation. This is the social condition of Bangladesh.

   My bachelor life and lack of interest in women would cause embarrassing situation for me in Bangladesh which would eventually hurt my parents and their family members. Especially, some of my fundamentalist relatives and neighbors were the forerunner in spreading false slander about me. I was under immense social and psychological pressure. Gradually, I reached [a certain age]. My parents and uncles started to look for bride to get me married. They contacted a number of matchmakers. Even, they published advertisement in the newspaper. They also started to look for advertisement of the prospective bride in the newspaper. I was a silent spectator of this social farce.

   I decided to leave the country to avoid this social pressure. In 2012 I planned to move to Australia in student VISA and applied accordingly. However, my application was rejected. I was more upset and hurt because of the social stigma of ‘homosexuality’ on me than because of the VISA rejection.

   At the end of the 2012, my father and uncle came across a groom wanted advertisement in the newspaper. My father and uncle responded to that advertisement and contacted bride’s family. In the course of the discussion, we came to know that the bride lives in Australia and she is unmarried. Discussion of marriage gradually progressed from both parties. I also gave in to avoid social stigma and accusation. I also gave my consent to get married. The bride was in Australia and I was in Bangladesh. So, our guardians wanted us to get to know each other through telephone and other electronic media. I contacted my would-be-bride. This needs to be mentioned here that my would-be-bride’s parents’ have [number] children, among them 6 are girls. My currently separated wife is 6th child and 5th daughter of her parents. Her eldest brother, who is also the eldest child of the family, lives in [Country 1] with his family. Only two of their siblings, my ex-wife [Ms A] and her eldest brother, are married. Rests of their siblings are unmarried. Her brother’s [relative] is an influential Member of the Parliament from the ruling Awami League Party and he is also a Minister. He is a well connected in politics and in the underworld.

   [Ms A]’s maternal uncle was pivotal in setting up this marriage. In fact he is mentor to their family. (This is because [Ms A] lost her father in 1984. Her uncle is the main guardian of their family. I would request the Honorable Tribunal to have a look at the family structure and social context of Bangladesh.). [Ms A]’s uncle is a [high ranking officer] in the Bangladesh Army. [Details deleted]. [Ms A]’s uncle (younger brother of her father) is a prominent leader of the opposition party B.N.P. [Details deleted. He is one of the few leaders who is trying hard to keep the save the party. (I cannot give out any name or details of [Ms A]’s influential relatives because of confidentiality and my concern for my family back at home. This is because security of my family is first priority to me.)

   In a number of guardian level meeting some decisions made regarding pre-wedding issues. In that connection, I contacted my Australia expatriate would-be-wife over phone and other electronic media. We would try to know each other in the brief common time we could manage as both of was busy with our jobs and we were living in different continents with different time zones. Meanwhile, people who used to harass me on the false accusation of ‘homosexuality’ gradually started to become silent on that issue as they came to know about my consent to get married and my wedding was impending. Those critics and abusing neighbors and relatives curtailed the amount of abuse and rebuke about my personal life. Nonetheless, some fundamentalists Madrasha (religious school) students started to say that the story of me getting married to a girl from abroad is a hoax. They accused me of using fraud claim to avoid social pressure. I would happily (without making any fuss) avoid their indirect criticism. In the meantime, we kept our contact through electronic media from Bangladesh to Australia. We were trying to get to know each other and we were gradually getting intimate with each other. But, I was yet to give my consent to her to get married at that time. [Ms A]’s (my separated wife) eldest maternal uncle and her elder brother’s father-in-law kept on trying to influence and convince my family to arrange the marriage as early as possible. They fixed the marriage date accordingly. My father and uncles urged me to get ready for the marriage shortly. After a number of subsequent meetings of both parties, [Ms A] came to Bangladesh on some day of September, 2013 for the wedding. I need to mention here that she used to tell me over phone that she was a citizen of Australia and she had been living there for a long time. I trusted her words. However, she was not being truthful. [Ms A] was still staying in Australia with 489 sub-class temporary Visa. She claimed that she was a virgin and she never got married. However, the reality was different. Previously, She got married once and the marriage lasted only a year. (I firmly believe that the honorable Tribunal can easily verify the veracity of my statement by asking for some basic queries to the Immigration Department.) Neither she nor any of her relatives informed me about this unknown but important information. I will describe in this statement why [Ms A] lied to me and why she broke her previous marriage.

   I want to reiterate that I reluctantly gave my consent to the marriage. One the other hand, persuasion and pressure from the guardians of [Ms A] was so strong that I could not avoid that. The bitter truth is [Ms A] was not interested in the marriage either. I had a feeling that she gave her consent to the marriage due to the pressure from her family. I will also explain this reason in this statement. Because of the persistent pressure from [Ms A]’s uncles, and her elder brother’s father in-law, we were got married in an ordinary arrangement in a marriage register office in the capital city Dhaka on October [date], 2013. Neither I nor my family could understand the haste and secrecy of the marriage. They told us that [Ms A] had to go back to Australia quickly as her leave were running out.

   [Ms A] left for Australia after a few of our marriage. It was as if she came and went in a flash. Her immediate younger sister was supposed to get married in the following week of our marriage. However, for some unknown reason the groom’s party called off the marriage. (I came to know about the reason in Australia after a long time).

   After the marriage, I began to visit [Ms A]’s family regularly during my stay in Dhaka. I was gradually intrigued about some aspects of her family. For example, (1) Suicide of [Ms A]’s elder divorcee sister a year before our marriage; (2) [Ms A]’s other sisters not getting married, 3. Her younger sister’s marriage was called off. I was thinking about these issues. But, I could not inquire anything about these issues to [Ms A] because of her obstinate personality. I have always been a taciturn and peaceful person.

   I need to mention here that only a few weeks before I came to Australia I came to know from a close relative of [Ms A] that her elder sister did not die from [a medical condition] as her family claimed. Rather she committed suicide by drinking poison. This is because she was a lesbian and her marriage lasted for less than three months. Her maternal uncle forced her to marry an army [officer] who was his subordinate. The family of the [husband] was very rich and powerful. Her husband divorced when he become aware of her disinterest for men and her homosexuality. Few after getting divorced, she committed suicide because of social and extreme psychological pressure. They kept this matter secret from me and my relatives.

   I gradually came to know that before marrying me [Ms A] got married approximately in 2010 and she also tried to bring that husband to Australia. [Ms A]’s ex-husband was a prominent business in Dhaka. I am well aware of her ex-husband’s name and his present miserable condition. But, I cannot give away his details for the sake of confidentiality and security of my family back home. [Ms A]’s first husband [Mr B] (fictitious name) was forced to divorce [Ms A] when he learnt about her personal life and her lesbian sister.

   [Mr B] did not stop after divorcing [Ms A]. Rather, with the help of a ruling Awami party leader he also filed a complaint against her maternal uncle (army officer) for cheating in the disciplinary section of the army. But, nothing happened to her [high ranking] uncle because of his administrative power and for being a member of the ‘military liaison committee’ to the Prime Minister. On the contrary, [Ms A]’s unfortunate ex-husband had to suffer for it. When things got back to normal after a few years, her powerful relatives decided to take revenge on [Mr B]. This is because [Mr B] tarnished image of [Ms A]’s family. He disclosed dark sides of her family to the whole society. [Ms A] transformed into a transgender woman after treatment in her adolescence. She does not have any womanhood and she does not have any ovary to conceive child. Overall, [Ms A] is a bi-sexual and homosexual (lesbian). Neighbors of [Ms A] in Dhaka also came to know from [Mr B] the reason for the divorce of her sister, her homosexuality and her suicide. Later, when [Mr B] came to know about the fact of [Ms A]’s domestic violence with me and separation, he told everybody about deceit and social degradation of his ex-wife and her family. This once again created a social crisis for [Ms A]’s family. To avenge this, some unknown people stopped [Mr B]’s car while he was returning home from workplace and abducted him at night of August [date], 2017. As far as I am concerned, [Mr B] is still missing. Nobody knows whether he is still alive or not. I have heard that his family has lodged a general diary for missing person. But, I do not know anything about the follow-up of that case. I am certain that [Ms A]’s maternal uncle and her brother’s father-in-law’s people took revenge on [Mr B]. I need to mention here that abduction, murder and forced disappearance are very common phenomenon during the regime of the incumbent Awami League Government. This situation is reflected in the reports of various international human rights organization.
   In the social context of Bangladesh if the eldest daughter of a family has trouble getting married, or if she commits suicide, or she is a homosexual/bisexual, her whole family is affected. The family losses its credibility and honor in the society. Family life of other members could also be affected. Member who is not married yet might find it difficult to get married. This scenario is difficult to imagine in the West.

   Although [Ms A]’s maternal uncle was able to get our done hastily with his shrewdness, he miserably failed to get her younger sister married. Despite the fact that her younger sister’s wedding date was fixed, the marriage was called off only a week earlier before the wedding. The groom’s party might have come to know about the social status of [Ms A]’s family. Her younger sister’s wedding had been fixed even before our wedding was fixed. The wedding was kept in abeyance only for our marriage. This is because in Bangladesh younger member of the family gets married after the elder member. Her younger sister’s wedding was called off, but I got caught in their plan. This needs to be mentioned here that none of her sisters got married yet. I reiterate only [Ms A] and her only [Country 1] expatriate brother got married. Except them none of their siblings got married. In this case I do not want to include the name of her elder sisters in the list of ‘married’ as she died.

   [Ms A] applied for spouse dependent visa on 30/12/2013 to bring me to Australia. That was the first time I came know that [Ms A] was a not a citizen or P.R. of Australia. I did not get any satisfactory explanation to that. Rather her brigadier uncle tried to convince me by diverting the topic and asked me not to withdraw the application for migration to Australia. When my application was at the final stage [Ms A] thought the Department might ask me about our Continuation of genuine relationship. Then, she told me about her first marriage. I was thundered. I could not control myself. I instantly refused to go to Australia. I told about my decision to her relatives and her elder brother. However, I decided to come to Australia because pressure from my family members and to avoid blame of homosexuality from my neighbors. I was afraid that my relatives could accuse me of staging the marriage only to hide my ‘homosexual’ identity. Basically, I became emotionally detached from [Ms A] at that time while I was still in Bangladesh. But, I did not know that she is a bi-sexual, homosexual woman and an ‘operated transgender lady.’

   When my migration VISA was finally approved, I landed in Australia on September [date], 2014 in 489 sub-class temporary regional spouse visa. Our relation was vulnerable from the very beginning when I landed in Australia because our relation was already strained. As everything in Australia, from the country to social structure, was new to me, I was very confused and nervous at the beginning. As result, we could not feel each other. We felt we are different entity; we do not belong to each other, although we were living under the same roof. Our sex life was also very dissimilar, and uncertain. Everything was dependent on her whim. I only could have sex whenever she wanted to. She never cared for my wish or demand as a husband. I want to mention a very crucial subject to the Honorable Tribunal. I have never been able to have sex with her with the lights on in the room. For some strange reason, [Ms A] would have sex with me only after switching off every light except for the dim light. If I ever wanted to switch on the light, she would get annoyed, she would quarrel with me and even she would try to physically assault me. I want to say again that we never had sex in daylight. This is a very shameful issue but cruel at the same time. This is why I had to reveal this information here.

   I spent first approximately two months in the same bed with [Ms A] after coming to Australia. Afterwards, although we lived under the same roof, I would sleep in the lounge or a different room. She would treat me like a roommate or a sublet tenant. After coming to Australia, I gradually became aware of her secret sex life. We also started to quarrel on this issue. Every time I would restrain myself so that I did not get in any legal trouble. Meanwhile, [Ms A] took away my cash dollars on pretext of various reasons which I brought with me when coming to Australia. I was too afraid to say anything. I called her mentor uncle, her elder brother and her paternal uncles to complain about her. They did not give any consolation rather they reprimanded me and advised me to follow her instructions. My mother was still alive then. She compassionately would understand my mental condition. She called [Ms A]’s uncle one day to talk about [Ms A]’s stubbornness. My mother warned her uncle that if necessary I would divorce her. [Ms A]’s uncle and her elder brother abused my mother over phone and threatened to kill if [Ms A] got divorced. My younger brother, who runs business in Dhaka, also told [Ms A]’s brother about her repression on me. They also threatened him. Her [high ranking] uncle threatened my parents that if [Ms A] got divorced, my whole family would face consequences. I did not tell my family about [Ms A]’s secret sex life, her previous marriage and her homosexuality at that time. I was silenced in fear when I learned about such pressure on my family in Bangladesh. I tried to put up with everything without letting anyone know about my sufferings. [Ms A] was basically a ‘bi-sexual’ with an inclination towards homosexuality.

   When I was with her in [Town 1], I saw how she would shut the door and have sex with other men and women. She would approach to beat me if I ever said anything against it. She threatened me if I ever say anything to her or my family in Bangladesh, I would face serious consequences. I did not have anyone to share my sufferings of those tough times except for only [Mr D] who was a residence of [suburb] in [City 1]. [Mr D] is the nephew of my classmate and close friend [Ms E]. We went to the same school and college. [Ms E] gave telephone number of his nephew when I left Bangladesh. I would contact [Mr D] at times over telephone. When my relationship with [Ms A] became very strained, I would often call [Mr D] and tell him about my apprehension and sufferings.

   [Mr D] would get furious sometimes and at one stage he suggested me to teach her a good lesson so she could never repeat that behavior. But, I did not know the meaning of the phrase ‘good lesson’. I did not want to know about that because I am a peaceful person and I did not want to get involved in any legal trouble. Because of my close relation with his uncle [Ms E], [Mr D] visited me twice in [Town 1]. He would mentally support me and spend some time with me. But, unfortunately, [Mr D], who is the father of two children, is facing [charges]. So, I do not want to say anything about this. [Mr D] basically knows everything about me.

   In the meantime [Ms A] attacked me on a number of occasions and she also physically assaulted me. I wanted to report that to the police a few times. However, I retracted from doing so and suffered in silence because of the continuous threats of [Ms A]’s relatives. [Ms A] would tell me times and again that if I take the issue of domestic violence to the police court and if she is punished, she would not spare me. She threatened that in Bangladesh my family would be attacked and my younger brother would be abducted and killed. On the contrary, she called the police in November, 2015 to incriminate me in a false accusation. But, the police realized the accusation was false, so they did not take any action against me.

   [Ms A] warned me that if she is sentenced on the charge of Domestic Violence, she would never be able to get P.R. in Australia. If the period of sentence is (even if it is AVO), her residency VISA might be cancelled. I did not know anything about those laws. So, I kept listening silently. I would restrain myself for the sake of security of my parents and other members of the family back in Bangladesh. Although I called the police a few times after being attacked, I did not expose anything lest my family in Bangladesh will be retaliated.

   When our conjugal life became unbearable, at one stage I left [Ms A] in [Town 1] and went to live with [Mr D] despite strict warning from her uncle. Nevertheless, I could not dare to divorce [Ms A] because this could make it difficult for her younger sister to get married. Multiple divorce of [Ms A] could seriously damage the image of her family in the society. Her [Country 1] expatriate elder brother [along] with some Awami League thugs went to our home in Dhaka on [date] February this year to warn my parents that if I divorce his sister or if anyone of my family talks about her personal life (homosexuality and bisexuality), he/she would be killed. They also warned that if I return to my country, I will also end up like [Mr B]. Afterwards, my younger brother went to file a complaint (G.D.) in the local police station but the police did not file the report when they learnt about the identity of the attackers. They advised him to settle the matter by apologizing to them. In fact, I have not been brave enough to divorce [Ms A] yet.

   As [Mr D] came to know about my sufferings when I was in [Town 1] he introduced me over telephone to a migration agent from Melbourne. The agent advised me to apply for a different visa for protection to the Australian authority. I told [Mr D] about my concern for my family members in Bangladesh and consulted him what could happen to me if I go back to Bangladesh. I told him if I reveal anything to the immigration department about [Ms A]’s biological issues including her sexual misconduct and if her uncle or brother’s father-in-law of comes to know about this, they will certainly attack my whole family. When I explained the influence and power [Ms A]’s family posses, [Mr D] got the complete picture and suggested me to keep my dispute with [Ms A] confidential. After consulting the migration agent, [Mr D] prepared a protection visa application including a statement. I will never say that the statement was prepared or the application for filled without my concern. I don’t intend to claim that I do not know anything about the content of the application. I want to unequivocally declare that I intentionally did not mention certain issues. This is because I was terribly afraid and I wanted to save my family from retaliation. As [Mr D], who was my only friend and aide during my bad times, also knew the reason for my fear, he also advised me to leave [Ms A]’s sex life and personal issues out of the statement.

   When I applied for protection visa in April, 2016, I was extremely anxious and I was not in my right mind. I kept the matter confidential to everybody from doctor to counselor. But, when my mother died of heart disease because of me on 16th May, 2019, I gained some courage and decided to reveal what I have been keeping to myself for so long. I need to mention here that, just a month earlier of my mother’s death, [Mr D], my friend and only refuge during my bad days, was arrested for [a criminal offence] in [City 1] [in] 2019. [Mr D] is in prison now awaiting trial. (I request the Honorable Tribunal to maintain strict confidentiality regarding [Mr D]’s issue. This is because I do not want to get involved in his family violence or I do not want to be a witness in his [case]. Besides, I do not know whether [Mr D] had any dispute with his wife.) I lost two close people in quick succession; my mother and [Mr D]. As I have said earlier, [Mr D] knew everything about my so called wife [Ms A]. I used to tell him to keep everything in strict confidence and made him swear not to reveal anything to anybody in Australia or abroad. Otherwise, I and my family will suffer serious harm. Although [Mr D] was the nephew of my friend, he became very intimate with me because of our interaction for a few years. He also knew about the abduction of [Ms A]’s ex-husband [Mr B]. Around the end of January, 2019 [Mr D] was having some family issues and he was a little unstable. At that time, he told his uncle, who is my friend [Ms E], everything about [Ms A] and the reason for my sufferings. I believe he did in good faith and he did not intend to harm me because he has always been on my side and he has always been supportive of me during my tough times.

   [Ms E] called me over phone to verify this which I acknowledged. [Ms E] is an influential real estate business in Dhaka. He contacted [Ms A]’s powerful relatives on behalf of me which backfired. [Ms A]’s uncle became furious when he came to know about her dark sides from [Ms E]. He expressed his anger over phone and warned me that he will get back heavily on me. About two months after the incident on Friday, [date] March, my younger brother was abducted by some unknown people who said they are from Detective Branch of police.

   Afterwards, we did not know about his whereabouts for three days. My old father went to the local police station for filling general diary, but the authority did not file the report for some unknown reason. On the contrary, they made comments about my brother. They said my brother might have eloped with some girl. My father returned home disappointed. After three days my brother was left on the Dhaka-Cumilla highway by the abductors. When my brother returned home, he described horrifying experience of those three days. During my brother’s disappearance, my mother suffered a stroke which left her in bed and she did not recovered from that till her death. My mother died on May 16, 2019. I know who is behind the abduction and indescribable torture for three days. But, I cannot protest or take any action against them as those abductors are from the ruling party and this is all about teaching my family a good lesson. My whole family is scared because of me. My mother died of unnatural cause because of me. My father has been confined to bed since the death of my mother. He is yet to recover from the woe of losing his wife.

   Who will harm you in your country?

   1. My biggest fear is the powerful people from my in-laws who are at the top position in the country. I am especially afraid of her maternal and paternal uncles, and her sole brother’s father-in-law who is from the ruling party and a powerful person.

   2. I am also afraid of my close relatives and some fanatic friends as well as fundamentalist Muslim neighbors who used to criticize for my personal life and falsely accused me of ‘homosexuality’.

   3. I am afraid of any fundamentalist Sunni Muslim. I will face criticism from my neighbors to any member of Mosque committee. They will make my life miserable by criticizing my determination not to get married again and my personal life.

   Why will they harm you?

   1. As the personal life of my ex-wife and suicide cause of her elder sister has been disclosed after a long time, my in-laws are furious with me for letting these information out which damaged reputation of their aristocratic and influential family. I am certain that if they get me within their reach they will kill me for tarnishing their family reputation.

   2. Biologically [Ms A] was not a female at birth. Only her close family members and her two husbands knew about this. Her family sent her abroad for advance treatment when she was a student of primary school (up to level V). She was transformed into a woman after the treatment which was very costly. Her family got her married twice by giving advertisement in the newspaper. This was done only to stop criticism of her family and to get her sisters married. Although [Ms A] was a transgender woman, she was a homosexual as well as a bisexual. I kept this information to myself out of fear. But, because of huge mental agony and psychological stress I told this to my family (parents, brother and sister) and a close friend. My life is in danger after this information became public. This top confidential information was indirectly revealed by her second husband i.e. me and this tarnished image of her whole family to the society. So, they can harm me in every possible way. Her [Country 1] expatriate elder brother is also furious with me because the matter has also become public in Bangladeshi community in Toronto through some people who migrated there from Dhaka. I am afraid that of her powerful relatives (especially her maternal uncle and father-in-law of her elder brother). I am afraid they might kidnap and make me disappear like her former husband.

   3. Religious fundamentalist society thinks that I am an apostate and I lead of life of Hindu ascetics who do not get married. They will rebuke me again when they find out that I am not getting married again. (This is my personal issue, my freedom. Nobody has the right to rob me of my freedom.). Besides, although I was born into a Muslim family, I do not pray regularly and I am not a practicing Muslim. This will be effectively used against me.

   4. My former wife [Ms A] and her family will not tolerate that I tarnished the reputation of her close relatives’ family.

   What kind of harm will experience if you go back to your country?

   1. People will consider this disclosed secret as authentic as this was revealed by her husband. As a result, her powerful relatives might abduct me like my younger brother and her former husband.

   2. I am certain that I have to lose my life as victim of their vengeance.

   3. I do not plan to get married ever again. This is not normal in a superstitious country like Bangladesh. As a result, my relatives and neighbors will keep pressing me to get married again. If I do not listen to them, I will be accused of ‘homosexuality’ again and I will be disgraced in the society.

   4. [Ms A]’s family is extremely influential and they are well connected to the government and administration. I cannot hide from them anywhere of the country from Teknaf (Southernmost point of the country) to Tetulia (Northernmost point of the country). Internal relocation is not application in my case.

   I want to emphasize that my refugee application meets every condition of the definition of ‘refugee’ as described in the UN convention on refugees. I think my claim falls under the ‘member of a particular socials group’ and partially ‘member of a particular religious group’ of the said definition. I am asking for the moon. I only want to live as a human being. I am concerned about the security of my aged father and my sibling’s family and the future of their children. I do not want to marry again ever. I want to live my life alone because I have been cheated times and again. This is not possible in a fanatic and superstitious society like Bangladesh. I request only to live in Australia as a man with dignity. I request the honorable Tribunal to reconsider my case with a liberal and open mind. I request to assess my case only in the context of Bangladesh.

1. The supporting documents the applicant attached are:

   -A General Diary report in the Bengali language, plus English Translation which states the document is dated [date] January 2020 and written by [Mr E]. It is addressed to the Officer-in Charge of a Dhaka Police Station. [Mr E]’s son [the applicant] is an expatriate in Australia, married to [Ms A], an Australian citizen of Bangladeshi origin. She is currently in Dhaka.  She and the applicant did not get along in conjugal life so they separated after about one year of marriage.  After their separation [Ms A] claimed a huge amount of money from the applicant on the pretext of providing her with maintenance.  As Bangladesh marriage law is not effective in Australia she has been harassing and threatening [Mr E] over the phone through her relatives in Bangladesh and her brother in [Country 1] for the past few years.  Because she has failed to collect her claimed amount from the applicant, she went to [Mr E]’s home with a number of unknown people at around 10:30 am [in] January 2020. [Mr E] was not there as he was at his ancestral home in Barisal. They abused [Mr E]’s son, [Mr F], when they learned that [Mr E] was not there.  Two of the people with [Ms A] beat [Mr E]’s son.  [Mr E] has CCTV in his home and the whole incident was recorded without their knowledge.  The video footage is available for legal use.  [Ms A] and her accomplices ransacked the house.  When they left they warned they would come back to attack [Mr E] when he returned.

   -A psychologist’s report, dated 5 February 2020, stating that the applicant was regularly attending his clinic on a voluntary basis, since October 2019.  He was referred by Victims Services NSW because he was a victim of a violent crime. The applicant presented with mixed anxiety, depression, social isolation and residual relationship problems. The psychologist will continue to discuss behavioural techniques for managing his low moods and, as well as explore some of his fixed cognitive beliefs that worsen his hyper-vigilance and social avoidance.

   -A report from a psychologist at [an organisation], dated 15 May 2017. The psychologist states that the applicant is in a complex unresolved domestic violence situation and would benefit from supportive counselling and case management. The applicant had stated that the first few months of living with his wife in Australia were good, but things deteriorated when she started physically and psychologically abusing him. He did not report the abuse to police because his wife threatened him with harm if he did so. She refused to grant him a divorce and threatened to harm him if he filed for one. She has threatened to harm his family in Bangladesh if he sought a divorce or returned to Bangladesh.  He moved out of her home but she maintained control over his life as he is fearful to socialise in case she finds out where he lives.  He had high scores on measures of anxiety, depression and PTSD. A referral to Victim Services NSW was completed.

   -A letter from a clinical psychologist, dated 10 September 2018, stating that the applicant has major depression and believes his life would be in danger if he returns to Bangladesh.  He complained of a head injury sustained in an assault by his wife and her family.

   -A letter from the clinical psychologist, dated 16 November 2017, stating that the applicant said he had been psychologically and physically abused by his wife and her brother. His wife hit him on the head with a steel bar.  He left her home in April 2016 and continues to fear for his life.  His wife called the police and accused the applicant of beating her.  He was not charged or the subject of an AVO.  He presents with symptoms of depression.

2. On 8 September 2020 the applicant submitted a link to videos from CCTV recordings in his father’s home.  The Tribunal has viewed the videos.  They have no audio. They depict the following:

   -One video is approximately 5 minutes long. It shows a short and stout woman (presumably the applicant’s wife) and three men going up the stairs to a doorway to an apartment.  A small man then also walks partway up the stairs. The applicant’s wife walks down the stairs to him and appears to have a verbal confrontation with him.  Another man then walks up the stairs and the applicant’s wife and one of the three men (the largest man) appear to be arguing or explaining something with him and the small man. The small man appears to enter the apartment. The applicant’s wife appears agitated. She continues to speak agitatedly to the fourth man.  Then one of three men walks through the argument and enters the apartment. After a few minutes everyone remaining enters the apartment. The video has a date stamp on it “1/[date]/2020” ([date] January 2020).

   -The next video is approximately 4 minutes long.  It is from a camera mounted in the top corner of a room with a bed in it.  At the room doorway the applicant’s wife can be seen speaking with the same man she had been arguing with before entering the apartment. One of the first three men can be seen holding his hand up to her as she speaks as if to quieten or calm or interrupt her.  After about a minute the applicant’s wife walks quickly into the room, opens another door and looks out through it.  The small man enters the room and as he does so the applicant’s wife walks quickly out of the room again.  The small man slowly follows after her. She then walks back into the room, beckoning the other men to follow her. She goes out the other door and the men look out after her and mill around.  At one stage the largest man grabs the arm of the man the applicant’s wife was arguing with to pull him away from the doorway where he appears to be talking to the applicant’s wife.  The small man then walks to the same doorway and the applicant’s wife appears and hits him twice on his upper arms.  The written subtitle in this section of the video reads “See how my wife is violently hitting my intellectually disable person”.  The small man steps back and one of the three men come between him and the applicant’s wife to intervene. She continues to speak at the small man and points her finger at him.  The man who intervenes continues to move between the small man and the applicant’s wife.  He puts his hands on the small man’s shoulders to keep him out of the way of the applicant’s wife. The larger man then moves the small man out of the room.  The man she had been arguing with reappears and he and the man who intervened appear to try to placate the applicant’s wife. She continues to argue her point with some gesticulation but appears a little calmer. The written subtitle in this section of the video reads “My wife is putting threat to my caretaker and telling that they will come again when my father is at home.”

   -The next video is approximately 1.5 minutes long.  The written subtitle in the beginning of the video reads “My wife with the help of plain-cloth police and army personnel are terrifying my home.” It shows a room with a table set with bowls and plates and water jugs. The applicant’s wife and the men are in the room.  The applicant’s wife goes to the table and continues to argue with the same man.  A taller man appears to be mediating between them. In another part of the video the applicant’s wife enters the room and starts to throw things off the table. The taller man tries to restrain her and she storms off.  The written subtitle in this section of the video reads “See how my wife is smashing things in my home”. The next written subtitle reads “No one noticed the existence of CCTV until next day”.

   -The next video is approximately 1 minute long.  It shows a section of the street from above, with people and traffic going past. Two men are standing below and one takes a photograph or video upwards with his mobile phone. They move out of frame. Later the applicant’s wife appears with two men.  She is still gesticulating.  One of them grabs her arm to move her onwards.

   -The next video is approximately 2 minutes long.  It is again of the stairwell outside the apartment. The beginning subtitle reading “They are leaving for the day after terrifying the whole family”.  The applicant’s wife and the four men walk down the stairs. The video cuts to a different camera shot at the bottom of the stairwell which shows the applicant’s wife and three of the men leaving while the other man, described as the caretaker stands at the bottom to see them out. The video cuts to a third camera shot showing the building exit. The last two men to leave give a gentle tap to the caretaker on their way past him.  The subtitle reads “My wife and his accomplices are telling the caretaker that they will return again and not to involve council or police in this”.  The applicant’s wife then re-enters the frame to speak and gesticulate at the caretaker.

   -The next video is approximately 3.5 minutes long.  It is a section of the street shot from above.  A police car pulls up and uniformed men and the applicant’s wife get out of it. The subtitle reads “[Ms A] came to my home with the police van”. Some go with the applicant’s wife into the building and three wait outside.  The subtitle later reads “An Awami League local leader, with shoulder bag, is also standing next to the police.”  After about 9 minutes elapse the applicant’s wife appears again. She speaks with one of the police officers and the man described as the Awami League local leader.  The subtitle reads “The police and the local BAL leaders has terrified my father and other members in Dhaka.” The applicant’s wife and the man described as the Awami League local leader then walk off. The video has a date stamp on it “3/[date]/2020” ([date] March 2020).

3. On 16 September 2020 the applicant wrote to the Tribunal requesting the Tribunal arrange to take evidence from his friend in [Jail]. The applicant stated that his friend initially helped him for his protection visa and that his friend basically fabricated the story with the assistance of the applicant’s former migration agent out of consideration for the applicant’s family's safety in Bangladesh.  In December 2018 the friend felt remorseful and admitted his guilt to the applicant.  His friend assured the applicant that he will appear before any Australian authorities, if needed, to give evidence of his 'wrong-doing'. 

4. The Tribunal replied that it did not feel it was necessary to take evidence from the applicant’s witness in jail at this stage, but requested the applicant to provide further details of what information his friend had fabricated in the applicant’s Protection visa application.  The applicant did not respond to the request.

   Tribunal Hearing

5. The applicant appeared before the Tribunal on 6 October 2020 and 23 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The following is a summary of the information provided by the applicant at the hearing on 6 October 2020:

   a.The applicant wants to discuss his new submission.  He won’t discuss his old submission he made to the department because it was affected by concerns for his and his family’s safety, so he made a fresh submission to the Tribunal.

   b.The Tribunal asked the applicant what information in his initial application had been fabricated by his friend who is in prison.  The applicant replied that his family’s safety and his safety were at risk in Bangladesh.  The Tribunal asked the question again and the applicant replied that he is a very good friend in [jail]. The Tribunal asked the question again and the applicant replied that in 2016 his friend knew everything about the applicant’s family and his separated wife. His friend put pressure on the applicant that if he spoke the truth, the applicant and his family will be in danger. So in Melbourne his friend prepared a statement with the help of a migration agent. The Tribunal again asked the applicant what information his friend had fabricated in the application. The applicant replied that his friend hid a lot of things.

   c.The Tribunal asked the applicant if any of the information in the original application was incorrect and the applicant replied yes.  The Tribunal asked what was incorrect and the applicant replied his friend hid a lot of things. 

   d.The Tribunal asked the applicant whether he meant that the information in his original application was correct but his friend had persuaded him to omit relevant information, and the applicant replied yes.

   e.His wife was born male.  She had surgery overseas and became a transgender woman.  She does not have ovaries and cannot conceive.  He was not aware of this when they married.

   f.His ex-girlfriend is in Melbourne and has two children.  She is now separated and the applicant could not disclose her.

   g.His wife’s maternal uncle is [in the military]. The [uncle] threatened the applicant that he must not divorce his wife or they will kill the applicant. His wife’s maternal uncle is very influential and her brother-in-law is very influential and a leader in the BJP.

   h.There are three people who want to kill the applicant, the [uncle] who is a close associate of Sheikh Hasina, his wife’s brother’s father-in-law, and his wife’s uncle who is a leader in BJP.

   i.His wife has gone to Bangladesh.  She and people from the Awami League went to the applicant’s father’s home and threatened him.

   j.In the applicant’s locality people from the madrassas called the applicant homosexual.  They considered him gay because he was not married.  So he thought he should have a late marriage. If he returns to Bangladesh now the hardliners will give him a hard time.

   k.The applicant’s mother passed away because his younger brother, [Mr F], was kidnapped.  [Mr F] was tortured brutally and terribly and released after three days. His mother was very hurt by [Mr F]’s kidnapping and passed away in May 2019. [Mr F] is small because he had typhoid fever as a baby. 

   l.The applicant’s friend, [Mr D], hid all these claims.

   m.In February 2019 [Mr F] was kidnapped and released in Comilla road Dhaka after being tortured brutally, but he is alive.

   n.The applicant felt pressured about his wife being transgender and same sex.  He was prohibited from disclosing anything about her.  On 17 January 2020 his wife brought people from the RAB and goons to the applicant’s home in Bangladesh. They entered the home and destroyed things and beat the applicant’s brother, [Mr F].  His wife beat him and the other people beat him behind the camera.

   o.The Tribunal put to the applicant that in the video the other people appear to be trying to restrain his wife from hitting the man. The applicant responded that they did this because they became aware it was being recorded in the camera.  The Tribunal asked the applicant how he knew they became aware of this and he replied that they told his brother who told him.  There was no audio on the video recording but the applicant’s brother told him he was crying.  They stopped his wife from beating [Mr F] but they later beat him outside, behind the camera.  The applicant’s father was not at home.  They wanted to harm the applicant’s father and because he was not home they turned their anger on the applicant’s brother and threatened him to tell the applicant to return to Bangladesh.  They said they will take action against the applicant and finish his life. The reason is because the applicant disclosed the things and problems about his wife. 

   p.The Tribunal put to the applicant that he had written about his wife’s first husband already disclosing information about her sexuality, so if it was already known why would her family care about the applicant’s disclosure. The applicant responded that she and her first husband got married in 2010 and divorced in 2011 and it became public knowledge that she was transgender and liked the same sex.

   q.His wife’s first husband divorced her 6-7 years ago but he was kidnapped in August 2017.  His wife’s family’s revengeful attitude lingered for a while.  That is why the applicant had instructions not to disclose about his wife’s problems, otherwise his family and he would be killed. It was clearly stated in the 2015 Statutory Declaration that the applicant should not give a divorce, so he didn’t.  [In] February 2019 his wife’s brother went to the applicant’s home in Bangladesh and met the applicant’s brother and threatened that the applicant should go to Bangladesh and he will take the applicant.  They pressured the applicant’s father and brother that the applicant should go back to Bangladesh and divorce his wife. 

   r.After 2016 the applicant did not do anything and there was no animosity. But then his wife’s family entered his home and did all those things. Even after that their revengeful intention lingered for such a long period that they pressured the applicant’s father and brother for the applicant to go back to Bangladesh so that it is easy for them to kidnap and kill him like his wife’s ex-husband.

   s.The applicant has a sister and another brother, [Mr G], who lives in Melbourne.  [Mr G] went to Bangladesh last year and got married.  He also just left for Bangladesh and arrived there yesterday and is in quarantine.  He knows about the applicant’s problems. He also knows about the threat to the family from [Ms A]’s family.  He still chose to go to Bangladesh because he got married in January or February.  He is under the jurisdiction of RAB in quarantine.

   t.The Tribunal put to the applicant that his brother in Melbourne had not provided any information in support of the applicant’s protection visa application.  The applicant responded that his brother had been threatened by his wife.  Before the applicant arrived in Australia his wife misused his brother so he stayed away from her before the applicant arrived. [Mr G] was very disheartened that the applicant suffered but he did not want to get involved further. He is a citizen of Australia and the applicant’s wife threatened him that if he gets involved, she will see him.

   u.His wife brought someone over from Bangladesh who was pregnant and had her delivery here.  She brought the woman because if the child was born here she could have a life here and study, but it is not practical at present.  She did not realise this and put the woman in a problem with the applicant’s brother.  It was Winter in [City 1]   and very cold.  His wife was not in [City 1] then.  All the woman’s interaction with the doctor and lawyer was done by the applicant’s brother.  The applicant’s wife would call the applicant’s brother and tell him to do things.  He became tired and angry. He said he was her brother-in-law but he had a life, and told the applicant’s wife not to misuse him like that.  This was some time in 2013 or early 2014.

   v.The applicant’s wife applied for a visa for the applicant at the end of 2013.  She later decided she made a mistake and would not sponsor the applicant.

   w.The applicant’s brother [Mr F] has a little disability.  Because he is small when people see him they have some sympathy towards him. However his wife’s family had no sympathy because they are so revengeful and they beat him. He did not do anything to them.  [Mr F] is short but he is not mentally or physically disabled.  He manages the family business and the house in Bangladesh.

   x.[Mr F] was kidnapped [in] February 2019 when his wife’s brother [went] to threaten the applicant’s brother and father.  It was February or January. The applicant’s brother spoke to his wife’s maternal uncle by telephone and asked why he was doing these things.  The brother said everything about his wife’s personal matter. The applicant doesn’t know how he became aware of this, because the applicant did not tell him. 

   y.The applicant’s friend, [Mr D] said this thing to his uncle, [Ms E] Hossein, about his wife’s matters.

   z.[Mr F] was kidnapped by some civilian officers who took him from the front of his home, in the evening.  He was brutally beaten for three days and not given water. He was blindfolded and beaten with batons, belts and sticks for three day. They told him to ask his brother to come back to Bangladesh.  He had injuries all over his body.  The applicant could not say what the injuries were.  Three days after his release he sought medical treatment from local doctors. The treatment was painkillers and treatment for pain.  Where there was blood clot he received treatment, they gave him cream. He was also given a saline drip.  The applicant has not submitted a doctor’s report about his brother’s injuries because he did not know it was required.  He can ask for a report.

   aa.The Tribunal asked the applicant why [Ms A]’s family would go to so much effort, to keep [Mr F] for three days.  The applicant responded that their main motive was to get the applicant.  They were all hired people and would have kept [Mr F] for 7 days.  The applicant knows that his wife’s first husband never returned.  They would not have returned [Mr F] as well but they may have had sympathy because of [Mr F]’s shortness.

   bb.When his father went to the police about [Mr F]’s kidnapping the police would not take an FIR.  They would not take his complaint.

   cc.His wife’s family did not do anything else until early 2020 when she took people to the applicant’s home.

   dd.The police accepted the applicant’s father’s complaint in January 2020 because the applicant knows a person whose name the applicant cannot disclose. The applicant told this person the applicant would be killed. Through his sources the GD was accepted but no action taken.

   ee.In early 2019, before [Mr F] was kidnapped, his wife’s brother and hired goons went to the applicant’s home to threaten that the applicant had to go back to Bangladesh. This was because [Ms E] Hussein ([Mr D]’s uncle) had argued with them. The applicant did not open his mouth before about his wife but when his mother passed away [in] May 2019, he spoke to his close friend, [Ms E] Hussein.  [Ms E] Hussein spoke to his wife’s maternal uncle over the phone to ask him why he was harassing and torturing the applicant’s family.  This was before [Mr F] was kidnapped.  His wife’s uncle abused [Ms E] Hussein and said the applicant would see him and then disconnected the phone. The applicant was then compelled to tell his father and brother.

   ff.After [Ms E] Hussein spoke to his wife’s uncle, his wife’s brother went to the applicant’s family’s home. This was in early 2019. 

   gg.The Tribunal put to the applicant that his father’s General Diary report in January 2020 and other available information, indicates that the problem is about money and that his wife seems to feel that the applicant’s family owe her money.  The applicant responded no, it is not like that. His wife would sleep with men and with women.  When the applicant stopped her from doing this she would mentally torture him. She would grab the applicant’s earnings and spend the money on herself and others. The applicant was working hard for the money. If she spent it on herself he would have no problem however she engaged with other men and women with the applicant’s hard earned money.  One time she transferred $8,500 from the applicant’s bank account. He has provided proof of this. He and his wife had a marriage under a religious system. No money was involved in it. When he decided to get married, he was hurt and his wife was not ready. But her family are very high profile people.  His wife’s maternal uncle had to keep family status and forcefully arranged the marriage with the applicant. His wife’s elder sister married an army [officer].  The marriage did not last three months because she was exposed as a lesbian.

   hh.The Tribunal asked why the applicant’s father’s GD referred to his wife wanting money from the family.  The applicant responded that this was told to make the applicant come back, as pressure.

   ii.The Tribunal put to the applicant that the 2015 Statutory Declaration that his wife made him sign also indicates that his wife was concerned about the applicant’s genuineness and money.  The applicant responded that what his wife did was illegal. She spent his money the wrong way.  It was her way to spend the money she earned and the money the applicant earned. She always spent the wrong way and kept nothing for the future.  He realised she was a lesbian and he was tortured and beaten up.  He was pressured by her maternal uncle not to give a divorce.

   jj.The applicant cannot divorce his wife because of the threats.  If he divorces her then he will be guilty and they will kill him.  The Tribunal put to the applicant that he claimed his wife’s family were intending to kill him anyway.  The applicant responded that they had one condition, his wife’s elder sister’s husband committed suicide because of her sexual orientation.  The applicant got married and it is the same story.

   kk.The Tribunal asked the applicant why his wife’s family do not want him to divorce her. He said it is because of the shame of having none of their daughters successfully married.  If he divorces her they will probably face insults in front of the community, because everyone in their family is divorced.

   ll.The Tribunal asked the applicant if his wife wanted to remain married to him. He replied that his wife sleeps with other males and females in front of him.  Though he tells her to stop she does not listen.  She has no uterus, she cannot get pregnant.  He could never have sexual relations with her during daylight or with the lights on.  If he tried to engage physically with her in the daytime he was beaten up.  She knew he was becoming aware about her.  When he heard about her sister, his wife probably realised he was becoming aware. When he arrived in Australia and found out she had relations with men and women he started doubting her.  When he said her elder sister committed suicide and she did not tell him, she beat him up and warned him never to ask of this again.

   mm.His wife was having sex with other men and women in [Town 1].  They lived in shared accommodation. She would close the door in front of the applicant.  The applicant thought if she was there with another female they were probably having a conversation behind the closed door.  If he returned home he noticed she was sleeping with other men.  The other men were men who also lived in the house.  They were housemates.  He was called [Mr A].  The women were also tenants or guests.  He is unsure of their names.  The tenant was Beriant, a New Zealander.  Beriant would bring another female friend into her room. [Mr A] had an AVO from the police. He tortured his wife and children.  His wife told the applicant this.

   nn.The Tribunal asked the applicant again if his wife wanted to stay married to him.  He responded no, because she is having multiple relations and he tries to stop her having other relations.  She did not even want to marry him initially.

   oo.His wife does not want to divorce the applicant.  She did not initiate a divorce in Australia.  This is because her family told the applicant not to give her a divorce.  She willingly maintained her illegal relationship.  Her family will not allow him to divorce her and it is a life threat.   Everyone did not know his wife’s problems except a few people.  His wife continues to have same sex relationships with other people.  Her family members don’t like it and they put pressure on the applicant.  The Tribunal asked if his wife is having same sex relationships in Bangladesh.  The applicant replied he does not know.  She was not ready for marriage and he also did not want to marry.

   pp.His wife would torture the applicant by hitting him. She hit him on the head one time and there was a lump but it did not bleed.  When the applicant tried to stop her associating with other males and females she would punch him and beat him up.  He never tried to hit her or retaliate because he is a peaceful person.  He tried to stop her beating him by taking hold of her hands. Then she would kick and bite him.

   qq.The Tribunal put to the applicant that it sounded as though his wife did not like him and does not want anything to do with him, apart from receive some money.  The applicant responded that she did what she liked whenever she wanted sex from him.  The Tribunal asked the applicant if his wife wanted a relationship with him now and he responded no.

   rr.The Tribunal asked the applicant why his wife went to his father’s home in Bangladesh. The applicant replied it was to get the applicant back to Bangladesh. She does not want a relationship with him but put pressure to force him to go back to Bangladesh.  The Tribunal asked the applicant why she would want him in Bangladesh. He responded it was because everyone knows about her sexual orientation.  The Tribunal asked why she wouldn’t therefore want him far away from her and he responded then why would she go to his place in 2020.  The Tribunal put to him that his father said it was about money. He replied no, she is not supposed to receive money from him or his father. There is no legal agreement about that.

   ss.The Tribunal asked the applicant if his wife thinks his family owe her money. He replied no, if they owe her money there should be an agreement. She forcefully transferred money from his bank account, $8,000. He requested she doesn’t waste money on other people.  The Tribunal asked how she would spend money on others and the applicant replied she would go to cinemas and restaurants with other people. She wasted money like this. She would have house parties.  It was a waste of money.  At home the people living in the house would have a barbecue every one or two weeks.  They would buy meat and poultry and alcohol.

1. On 7 October 2020 the Tribunal wrote to the applicant stating that it would try to arrange to take evidence from the applicant’s friend in [Jail] at the scheduled resumed hearing. The Tribunal requested further identification details about the applicant’s friend in jail in order to arrange his hearing attendance from the jail.

2. On 8 October 2020 the applicant wrote to the Tribunal stating that he no longer wanted the Tribunal to take evidence from his friend in jail. He stated this was because he did not know what mental state his friend is in, or how reliable he would be for the applicant’s case, and he did not want his case discussed over a jail phone because of privacy concerns.

3. In view of the applicant’s response and concerns that it may not be possible to ensure the confidentiality of a telephone call from the jail, the Tribunal agreed not to pursue arrangements to take oral evidence from the applicant’s friend in jail.

4. The following is a summary of the information provided by the applicant at the resumed hearing on 23 October 2020:

   a.His wife’s uncle is an adviser to the government.  He is nearest the Prime Minister.  Her family have threatened to kill the applicant if he speaks about his wife’s life.  After the applicant’s mother passed away in May 2019 his heart was broken. His wife threatened him if he told people about her being transsexual and bisexual.  She was worried she would not get PR in Australia if the police organise an AVO against her.

   b.The applicant told his friend’s nephew, [Mr D], about his problems with his wife.  With help from a Melbourne Migration Agent, the Agent and [Mr D] advised the applicant that because his life was under threat it is better not to tell about his actual problems with his wife. So the applicant did not tell the police or Immigration.

   c.His wife previously got married in 2010 and divorced within one year because she is transsexual. Her first husband’s name is [Mr B] and he was kidnapped [in] August 2017 in Dhaka. He had spoken to his neighbours and relatives. His wife and her family then became more aggressive to the applicant.

   d.After his first girlfriend cheated on the applicant, he never thought to get married. He was harassed by people. The people were his relatives and friends and members of the madrassa.  They said the applicant is a homosexual and asked why he did not get married. He could not explain. 

   e.It was very risky to move around as if people think the applicant is homosexual they will kill him. Any time they can hit him.  A few of his relatives are fundamentalist.  He is Muslim but he did not practice as he should so it is easy for them to spread rumours.

   f.He had a beautiful life in Bangladesh.  He studied and did a post graduate course.  He ran a business with his brother. He had a job with a company.  It was a beautiful life. No one told him his wife was married before.

   g.The Department did not know about his wife’s first marriage. She told the applicant not to tell the Department if it called him.  The applicant notified his wife’s brother and maternal uncle.  The [uncle] told the applicant not to cancel his application. He did not tell the applicant his wife was an operated transsexual or bisexual. She told the applicant she doesn’t have PR so the applicant told her relatives he did not want to come to Australia.  Her uncle and the applicant’s family pressured him that because of the rumours he is homosexual he should go.

   h.If he returns to Bangladesh his wife’s maternal uncle and brother’s father-in-law will threaten the applicant’s life.  They kidnapped [Mr B] because he divorced her.

   i.[In] March 2019 his wife organised the kidnap of the applicant’s younger brother, in front of his home, on a Friday afternoon.  They want the applicant to return to Bangladesh so they can kill him.

   j.[In] January 2020 his wife went to the applicant’s family home, with other people including people from the army, RAB, and miscreants. They beat the applicant’s brother and hid from the camera. His wife pressured him to tell the applicant to come to Bangladesh or she would kidnap the applicant’s brother again or kill him. The applicant has submitted all the video and GD entry by his father about this incident.

   k.When he first arrived in Australia his wife refused to let him stay or to answer his calls. She then said he could stay but he had to leave her house within three days.

   l.His wife did not keep her commitment and cheated on the applicant.  She was not with the applicant since 2016. The applicant does not want to get married again. He wants to live in Australia as a private person.

   m.Within two weeks at [Town 1] his wife created drama and kicked the applicant in his back. It was painful.  He still has backpain which affects both his knees and his right hand. In 2015 his wife hit him on the head in the kitchen.  He did not call the police.  If he goes back to Bangladesh she will kill him like [Mr B].

   n.The Tribunal asked the applicant why his wife would want the applicant to return to Bangladesh. He responded that she told him not to tell anyone about her, that she is bisexual and transsexual.  The Tribunal put to the applicant that might indicate she would want the applicant far away from her.  The applicant responded true, she wondered why family and relatives know about her being bisexual and transsexual.  The Tribunal put to the applicant that he had stated that her first husband had already publicly revealed these details about her. The applicant responded that his wife was not born fully male, but in the middle between male and female. The Tribunal asked how he knew this and he replied he had heard from her relative that her private parts were not fully male or female.  One of his wife’s maternal uncles told the applicant this. The applicant would not tell the Tribunal the name of this uncle because it is confidential and the applicant did not want another enemy. The Tribunal reminded the applicant that the hearing is confidential and the applicant responded that what he is saying is true. The uncle told the applicant this over the phone, at the end of 2014 or beginning of 2015.  The applicant had telephoned the uncle because he was suffering. He could not have physical relations with his wife in the daytime or in the light.  The applicant thought he could talk to the uncle about this because the uncle is a senior person and they had met in Bangladesh. He told the uncle that his wife would talk to other women behind a closed door.  The applicant was suffering for four or five months.  He and his wife tried to get a baby but were unsuccessful.  His wife’s uncle thought he could trust the applicant.

   o.His wife’s maternal [uncle], his wife’s elder brother, his wife’s brother’s father-in-law and another uncle have all threatened the applicant.  The [wife’s uncle] did not directly threaten the applicant.

   p.The applicant informed his wife’s elder brother that his wife would not divorce him so he could not survive. The brother said that they had told the applicant not to discuss his wife’s personal life but the applicant told everyone. The brother said the applicant’s fate would be like [Mr B]’s.

   q.In February 2019 his wife’s brother and another uncle went to the applicant’s family’s house with miscreants and put pressure on his father to tell the applicant to come to Bangladesh so they could kill him.  The applicant’s father told them the problem is with their sister, so what is the applicant’s fault.

   r.The applicant’s father is in Dhaka at home.  The Tribunal asked the applicant if it could speak with his father.  The applicant responded that his father is very sick.  The Tribunal asked if his father was able to speak.  The applicant responded that his father is [age] years old, when his father speaks there is no sound.  He can only say hello, that is all.  He lost the ability to speak when he had a stroke [in] March 2016.  His condition has worsened day by day, especially after the applicant’s mother died.  Since March 2016 the applicant’s father spends most of the day in bed. He can’t move. 

   s.The Tribunal asked the applicant if his father has been bed bound and unable to move, since about March 2016.  The applicant responded yes, he had a stroke, and day by day his situation worsens, especially after the applicant’s mother passed away.

   t.The applicant’s father lives at home with the applicant’s younger brother, [Mr F] Hussein, and [Mr F]’s wife and daughter.  The Tribunal asked the applicant why his father was not home in January 2020 when his wife and others went to his home.  The applicant replied it was because his sister had taken him to her house in another city for about one week or ten days.  The applicant’s father has no strength to walk.  He is very slow.  He mumbles and passes some words but no one can understand him. The Tribunal asked the applicant if it could speak with his brother, [Mr F]. The applicant responded that [Mr F] cannot speak English. He had typhoid when he was 5 or 6 months old and became short. He is not a very good student.  He mumbles. The Tribunal informed the applicant that it would use an interpreter to speak with [Mr F].  The applicant replied he did not think an interpreter would be able to understand [Mr F].  Only family members could understand [Mr F]. The Tribunal asked the applicant if it could speak with his sister in Bangladesh. The applicant responded that she lives in Barisal and can speak only in Bengali.  It would not be possible to call her then because she has a child and family life and would be sleeping as it was just sunrise in Bangladesh.  Her son will make too much problem.  Bengali ladies are not very fast or active.  The applicant can arrange an interview with her at a later date.

   u.When the applicant had a problem with his wife during their conjugal life, she always pressured him to go back to Bangladesh, and told him he could not stay in Australia. She told him she did not apply for a visa for the applicant.

   v.The Tribunal put to the applicant that this indicates his wife did not want a relationship with the applicant.  The applicant replied that this is correct.  The Tribunal asked the applicant why he did not respect her wishes and leave.  The applicant responded that she called the police [in] November 2014/5 and he thinks she wanted to put him in jail so that he had to go back to Bangladesh.  The Tribunal asked why she wanted him to go back to Bangladesh in 2014/5.  The applicant responded that she wanted to call the police but he snatched the phone from her hand.  The Tribunal asked the applicant the question again and he responded that he thinks she wanted to keep relations outside of married life and for him to go to Bangladesh so she could torture him there.  The Tribunal asked why she would want this and he replied he believes she thinks the applicant should accept she had another relationship with a man or female.

   w.The Tribunal asked if his wife had tried to obtain a divorce from the applicant.  He replied no, her brother had given the applicant a condition that he cannot divorce her.  The Tribunal put to the applicant that she would need to divorce him in order to remarry.  The applicant replied why would she want to get married when she can live with any male or female she wants to.  In Bangladesh society she needs to be married.  Within three months his wife’s younger sister divorced because of rumour she is a lesbian and she committed suicide a couple of years later. If the applicant divorces his wife her family will feel insulted in Bangladesh society. 

   x.The Tribunal asked the applicant why he chose a bride living in Australia and perhaps this indicated he did marry her for a visa to Australia. The applicant replied there is no basis for that suspicion. He had previously applied to be a student in Australia. Because of the rumour he is homosexual he had previously applied for a Student visa.

   y.The Tribunal asked how it would help his wife or her family to kill the applicant in Bangladesh.  The applicant replied that they think they have lost their pride and can take revenge. They kidnapped his brother and killed [Mr B].

   z.The Tribunal put to the applicant that according to him others already knew about his wife’s sexuality before the applicant spoke with his friend’s nephew. The applicant responded that they killed [Mr B] after some years, so they will still go after the applicant.

   aa.The Tribunal asked the applicant what his sexual orientation is and he responded he is fully male.  He has always liked females.  But after the betrayal by his ex-girlfriend he has lost interest in pursuing a relationship.  He is male and his preference is for females but after being cheated many times he prefers to be alone.  He is not homosexual or bisexual.

   bb.The Tribunal asked the applicant why he can’t simply deny he is homosexual in Bangladesh.  He replied that he tried to tell people but they did not understand he was heartbroken. Because he made money others were suspicious of him.

   cc.He does not and has never had homosexual friends in Bangladesh.  He has never attended gay venues.  He has never joined any homosexual activities or causes.

   dd.The Tribunal put to the applicant that apart from being unmarried there would be little reason to think he is homosexual. The applicant disagreed with this.

   ee.The Tribunal put to the applicant that some country information suggested that unmarried men in Bangladesh do not face the same sort of stigma as unmarried women in Bangladesh.  The applicant responded that the situation is different if someone says anything to a woman on the street as this is very sensitive. But to tell a man it is not considered like that. 

   ff.The Tribunal put to the applicant that he did not seem to have been harmed in the past by people thinking he is homosexual in Bangladesh.  The applicant responded it was mental harm.  The mental harm was people asking him why he was not getting married and that he must have some problem.

   gg.The applicant agreed there are men in Bangladesh who are divorced. The Tribunal asked about their situation and the applicant replied maybe some get married again or have children.

   hh.The Tribunal put to the applicant that if he is still legally married why would people suspect he is homosexual.  He replied that it is because he doesn’t want to get married. His ex-girlfriend broke his heart.  The Tribunal put to him that he states he is not divorced. He responded that he can’t divorce his wife as his life will be threatened. It is his problem that he cannot divorce her. The Tribunal put to the applicant that he can divorce her if he wishes to.  The applicant responded that in Bangladesh this was the condition his wife’s family gave him or they will destroy him and his family.

   ii.The Tribunal put to the applicant that his psychological reports do not mention the problems he had with his wife because of her sexuality.  The applicant replied that they were old reports and that after his mother died he spoke up about it.

   jj.The Tribunal asked if the applicant could live in another part of Bangladesh to avoid problems in Dhaka.  He responded that his wife’s family are so powerful. Major Hasina kills in Tekniff. The government supports him.  The public protested about this.  Major Hasina is not related to his wife.  His wife’s brother will find and harm the applicant anywhere in Bangladesh because he told people about her sexual preference and her family want him to stay with her.

   kk.The Tribunal asked the applicant if his wife’s family want to kill him and want him to stay with her. He replied that until 2016 they told him he had to stay with her. After his mother died he decided to tell everything and that his wife was cheating on him.  His wife went to his family’s house. She wants to kill and torture him. She kidnapped the applicant’s brother so that the applicant would go back to Bangladesh.

   ll.The Tribunal asked the applicant why his family did not offer money to his wife’s family to try to appease them, if they believe he exploited her.  The applicant responded no, there is no reason for the money she is asking for and she does not know why she is asking for money.  She does not know how much money she wants. He submitted a Statutory Declaration to the department where it is mentioned.  She is asking for money, but not how much or why.  If he did something wrong she can go to the police and court in Australia, so why is she going to his home.

   mm.The Tribunal put to the applicant that perhaps his wife just wants her dowry back because she feels he cheated her.  The applicant responded no, her family say that what she did doesn’t matter, still he must be with her.  At the end of 2015 he transferred $8,500 to her and he believed she would become quiet.  She had a $20,000 loan from the bank and spent all that as well as his money. He told her that she keeps asking him for money and he feels tortured.  He told her that if she wants to go out and to the movies he is happy to take her. But she did not want to go to the movies with him.

   nn.The Tribunal asked the applicant why he did not move out of his wife’s house at an earlier stage and he responded that the [wife’s uncle] told him he must not leave, and he must stay with her.  This was in the middle or end of 2015.  When the applicant’s parents told the [the wife’s uncle] she was with other people he told the applicant’s parents that the applicant had to stay with her.

   oo.The applicant did not see his mother before she died.  He was cheated by two girls. He wants the right to his life and to live as a proud human, in a social safety net.  So no one will say to him he is homosexual or disturb him.  If he goes to Bangladesh they will kill him.  He is not asking for the moon. He has submitted everything and requests the Tribunal to consider it in the context of Bangladesh, not Australia.  His claims fall within particular social group and religion. 

5. On 8 December 2020 the Tribunal wrote to the applicant under s.424(2) of the Act requesting the names of the applicant’s wife’s relatives he claimed to fear harm from as well as the name of her first husband.

6. On 17 December 2020 the applicant provided the following response:

   I will provide the full name and the contact details of the concerned army personnel who is the maternal uncle of my 'former' wife; if I give you this information I am signing the death warrant for my family in Bangladesh. I therefore require a written assurance from the Australian authority that my extended family members in Bangladesh will not be harmed due to their investigation there. If my involvement in this disclosure becomes known to other party there will be murder in Bangladesh. I must require a written assurance from the Administrative Appeal Tribunal or the DFAT in Bangladesh.

   I already have mentioned in my last hearing that my wife's uncle was a [a high ranking officer] in Bangladesh army when l have written my amended statement to the Administrative Appeal Tribunal. He has already been promoted to [a certain rank] and he is currently head of a sensitive wing in the defense force.

   I will provide the full name and the contact details of the concerned [military personnel] who is my wife's cousin and is currently serving as station head of [deleted]; however I must require written assurance from the Australian authority that my extended family members in Bangladesh will not be harmed due to their investigation there. Any sort of clue or indication of their query may create bloodshed and even murder to my family member there. I must require a written assurance from the Administrative Appeal Tribunal or the DFAT in Bangladesh.

   I will provide the name of my wife's brother's father in law, I don't have his contact phone number, however l must require written assurance from the Australian authority that my extended family members in Bangladesh will not be harmed due to their investigation there. Any sort of clue or indication of their query may create bloodshed and even murder to my family member there. I must require a written assurance from the Administrative Appeal Tribunal or the DFAT in Bangladesh.

   My wife's first husband's full name is [Mr B], the spelling could be different. He is known as [Mr B]. I don't know more than this.

   [In] December 2020 evening my younger brother and a cousin were bluntly refused by the Police authority of [deleted] Thana, to register their complaint, when they went to report about the incidence that has happened on Friday the [date] of December 2020 when my brother was attacked by a few Awami League thugs on his return from the local mosque after the Friday-afternoon prayer. I consent the Australian authority can tactfully enquire about this with the relevant police station in [Dhaka] where I belong to. I am concerned about the safety of my family members though but I trust if you query this tactfully you will find the authenticity of my claim. Their details are as follows: The Officer in charge of the police station is [Mr C], his phone number is [deleted], The IO (Investigating Officer) is [name], his phone number is [deleted].

   My whole family is now under constant fear of being attacked and/or harassed by the people of the current administration instigated by my 'former' wife's family members who are in hierarchy position in power.

   I am sure I will be kidnapped and killed by the Awami League administration if I were to return to Bangladesh. I will be a victim of cruel vengeance.

1. The applicant gave evidence that his wife’s brother and a cousin who is a [military officer], want to kill the applicant.  Initially the applicant did not provide a clear motivation for their adversity.  He referred generally to the brother’s disapproval of the applicant’s actions in the marriage which upset his wife, and the suspicion the applicant would abandon his wife once he obtained permanent residency.  The Tribunal accepts that these things would cause animosity in the applicant’s wife brother towards the applicant. The applicant claims the brother went to the applicant’s family’s home in Dhaka and threatened them that if the applicant left his wife after gaining permanent residency he would kill the applicant, but if he left her beforehand it would be okay.

2. The applicant has not obtained permanent residency through his wife so it is unclear why his wife’s brother would now wish to harm the applicant. The applicant and his wife separated over four years ago. The applicant’s wife has made clear that the relationship is ended and she was the instigator in ending the relationship. The Tribunal is not satisfied that there is a real chance the applicant’s wife’s brother or a cousin who is a [military officer], would try to kill the applicant or otherwise try to harm him in Bangladesh.

3. The applicant also spoke of his wife’s first husband being kidnapped and possibly killed by his wife’s relatives in 2017, several years after they divorced.  Why this would be done to him lacks reasonable explanation.  The applicant stated it was for revenge after the first husband revealed personal information about his wife.  However given the divorce and passage of years it makes little sense to take such extreme measures against the first husband and attract more attention.  The applicant also stated he believes his wife’s family were involved in kidnapping and possibly killing her first husband but did not provide anything else to support his belief.  Given the inherent implausibility in his statements the Tribunal does not accept that the applicant’s wife or her relatives were involved in kidnapping and possibly killing her first husband.

4. In view of the applicant’s unsatisfactory evidence the Tribunal does not accept that a maternal uncle of the applicant’s wife, or her brother’s father-in-law or Awami League members or any other of his wife’s relatives or contacts want to kill or otherwise harm the applicant.

   Kidnap and beating of brother

5. The applicant claims that his younger brother was kidnapped and tortured by his wife’s relatives in Bangladesh in February 2019, to force the applicant to return to Bangladesh. 

6. The applicant’s evidence regarding the trigger for the kidnapping of his brother was his friend’s phone call to his wife’s uncle which revealed the applicant’s knowledge of his wife’s personal issues.  The link between the phone call and the arrangement of a kidnapping and torture of the applicant’s brother appears very tenuous, particularly in regard to motivation. The applicant’s evidence was confused and inconsistent about who kidnapped his brother and when.  He stated to the Tribunal that he knows who was behind the kidnapping yet did not provide any evidentiary link to his wife and her relatives apart from his own supposition.  The applicant was also unable to satisfactorily explain how kidnapping and mistreating his brother for three days would persuade the applicant to return to Bangladesh to be killed.  In view of these concerns the Tribunal does not accept the applicant’s brother was kidnapped and tortured in early 2019 to force the applicant to return to Bangladesh.

7. In his written response to the Tribunal on 17 December 2020 the applicant claimed that his brother was attacked two weeks previously by some Awami League thugs on his return from the mosque, but the police refused to register the complaint.  The applicant requested the Tribunal to enquire of nominated police officers at the local police station to confirm his statements but provided no further details of the claimed assault.  As per his request the Tribunal tried to obtain confirmation and details of the claimed assault from the police officers nominated by the applicant but has received no information.

8. The applicant has not provided any details about how his brother was assaulted, why he believes the perpetrators were connected to the Awami League, the purpose or motivation for the assault or what the assault entailed.   

9. Given the lack of meaningful information available about the claimed assault on the applicant’s brother the Tribunal is not satisfied that it occurred.

10. Even if the Tribunal gives the applicant the benefit of the doubt that his brother was assaulted on 4 December 2020 there is nothing before the Tribunal to indicate the assault was connected to his problems with his wife.  The Tribunal therefore does not accept that, if the applicant’s brother was assaulted, it was done at the behest of the applicant’s wife and/or her relatives.

    Imputed Homosexual

11. The applicant claims to fear returning to Bangladesh because he believes others will consider him homosexual because he is unmarried.

12. The Tribunal notes that the applicant remains married as he does not want to divorce his   wife.  His explanation that he is motivated not to divorce her by fear of harm from her relatives lacks reason, given his assertions they hope to kill him regardless.  The applicant identifies the Statutory Declaration he was required to sign, in 2015 as evidence the family will not let him divorce his wife.  However this document merely sets out a financial penalty and directions if the applicant divorces her after obtaining permanent residency. Given he has not obtained permanent residency and given his wife has effectively ended their relationship the Tribunal perceives no sense in the applicant’s refusal to divorce his wife.

13. As someone who is still married or who is separated or even divorced from his wife, the Tribunal considers it highly unlikely that the applicant will be perceived as homosexual in Bangladesh by reason of his marital status alone.

14. The applicant stated that he is not gay and that he has no connections or involvement in a homosexual community.  He has no gay friends, does not attend gay venues, etc.  There is no other reason for anyone to assume the applicant is gay.  

15. He stated that people in his neighbourhood suspected he was gay when he was living unmarried in Bangladesh.  The Tribunal accepts the possibility that some in Bangladesh may have speculated the applicant is gay because he remained unmarried there.  Given he has since married there seems little chance others would persist with believing him gay just on the basis of his marital status.  He is now able to highlight the fact of his marriage, or former marriage, to dispel rumours he is gay.

16. Even if people within his community do consider that the applicant is gay upon return to Bangladesh, because he is no longer with his wife, there is no indication that they would try to seriously or significantly harm him for this reason.  As he stated, during the years he lived in Bangladesh, people who suspected he is gay merely stated or implied this but did not make any attempt or threat to harm him.

17. The Tribunal accepts the circumstances would be different if he was gay or if others thought they had actual evidence that the applicant is gay.  In such circumstances there could be a real chance people would try to seriously harm the applicant.  But the Tribunal considers the chance that others would act to harm the applicant on the mere suspicion he is gay, simply because he is no longer with his wife, is remote and fanciful.

    Not willing to Marry

18. The applicant claims to fear harm from religious extremists or fundamentalists because he is not married.  He claims they will consider him living like a Hindu ascetic and so apostate.

19. As stated by the applicant his marriage is not yet dissolved so he remains married.  The Tribunal therefore considers this claim in circumstances where the applicant is no longer with his wife, either separated or divorced.

20. Apart from the applicant’s statements there is no information before the Tribunal that men in Bangladesh who are divorced or separated from their wives are considered apostate and/or incur adverse treatment from others for religious reasons.

21. The Tribunal accepts the applicant’s statements that he is Muslim but not particularly devout.  He continues to identify as Muslim. While living in Bangladesh the applicant does not claim to have been considered apostate or to have been threatened by religious people because he was unmarried.  If he returns now to Bangladesh his circumstances would be either similar or his actual marriage will be acknowledged. In the Tribunal’s view neither circumstance would give rise to any potential threat from fundamentalists, extremists, or others in Bangladesh.  The Tribunal is not satisfied there is a real chance of the applicant facing serious or significant harm in Bangladesh because he is no longer in a marital relationship and does not wish to remarry.

    Conclusion

22. For the reasons set out above the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm from the applicant’s wife or her relatives in Bangladesh.  The Tribunal is also not satisfied that there is a real chance the applicant will face serious or significant harm from people believing him to be homosexual or because he is unmarried or not remarrying or no longer with his wife, in Bangladesh.

23. On the information before it the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Bangladesh. The Tribunal is also not satisfied there is a real risk the applicant will suffer significant harm on return to Bangladesh.

    CONCLUDING PARAGRAPHS

24. 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).

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

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

    DECISION

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

    Melissa McAdam
    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.

    …