1622431 (Refugee)

1622431 (Refugee) [2022] AATA 957 (15 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622431
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Penelope Hunter
DATE:15 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 February 2022 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – ethnicity and religion – ethnic minority and Buddhist monk – fear of harm from Muslim religious and political leaders and groups – father’s business and religious profile – clashes about land and religious facility – threat of arrest and harassment of family – credibility – departed home country without passport and obtained passport of third country in alias name – inconsistent and unreliable claims and evidence – no evidence provided to support claim of mental health and memory problems – country information – low risk of societal violence for Buddhists – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 December 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 26 September 2016. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia owed protection obligations under the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Department application
According to the information contained in the applicant’s protection visa, he is a [age] year old citizen of Bangladesh. He was born in Ukhiya Sub-District, Cox’s Bazaar, Bangladesh. He is of the Barua ethnicity and a Buddhist monk. His parents reside in Bangladesh, and he has a brother living in [Country 1]. From 2013 to 2016 he resided in India. In 2016 he undertook travel to [Country 2] and [Country 3]. He completed high school in Bangladesh and worked from 2004 to 2013 as [an Occupation 1].
He arrived in Australia [in] July 2016 as the holder of a [Visitor visa], issued on 20 June 2016. He travelled on an Indian passport issued in the name of [Alias 1]
. On 26 September 2016, the applicant lodged the visa application under review, and claimed to be a national of Bangladesh.
The applicant provided a statement with his protection visa application and made the following claims:
i.In his home located in the Kjhiya Thana area of Bangladesh. He claimed it was notoriously renowned for Muslim terrorism. The applicant attributed this to the presence of a number of Muslim Rohingya refugees from Myanmar and financial support from the Middle East.
ii.Buddhists were often targeted by greedy Muslim influential political leaders and their lands and properties were not safe. The leaders would hire terrorists to occupy the property or land of minorities.
iii.The applicant’s family owned quite a huge amount of land in Ukhiya. His father’s siblings were involved in different types of businesses in Bangladesh. His father is respected among local Buddhist inhabitants, as he used to work as the [position] for the Buddhist temple [named].
iv.The applicant quit school when he was 16 years old and studying for Year 10, and joined his uncle’s [business].
v.Almost a decade ago, his family donated some land for a [facility] to be used by local Buddhist inhabitants.
vi.A Muslim influential man, involved in the Islamic fundamental group Jamaat-e-Islami, [Mr A] and his family had been living close to the [facility]. The [facility] came to his attention. [Mr A] had a bad reputation as a result of his oppressive activities towards the local Hindu and Buddhist minorities. He uses the Rohingya refugee cadres as well as Madrassa students to perform various criminal and oppressive activities.
vii.In early 2011, [Mr A] and a group of armed Madrassa students came to the [facility] and seized most of the area by raising a fence of barbed wire across the land. The next morning, the Buddhist villagers found out. The applicant’s father led the Buddhist villagers to complain about the incident to the ex-chairman of the Ukhiya Sub-District, [Mr B], and the local Union Board. Several meetings were called to resolve the matter, and [Mr A] did not appear until the fourth one. At that meeting, he claimed that the occupied land belonged to him. The Union Board advised them to take the matter to the local police station.
viii.The applicant, with a group of young Buddhist men, removed the fence and recaptured the land. A new fence of barbed wire was raised surrounding the whole area. [Mr A] lodged a complaint against the applicant’s Buddhist community, making the applicant’s father and his uncle the main accused persons. In November 2011, the local police came to the spot to inquire about the land, but they could not find any clue in favour of [Mr A].
ix.[Mr A] and members of the Jamaat-e-Islami group then became hostile to the Buddhist community and mainly targeted the applicant’s family. This was because his family donated a major part of the land, and his father was the [position] of the village temple committee. He committed oppressive activities against his family, like physical torture of family members including the applicant, damaging the fence, trespassing into the [facility] and cutting off the trees inside. To avoid these activities, the Buddhist community decided to set up a boundary wall and small temple inside the [facility] area in early 2013. The applicant was involved in the building work as he and his uncle were contractors.
x.[Mr A] sent hired thugs to prevent them from continuing their work, by bashing workers and damaging construction work and goods. Work stopped for a couple of weeks.
xi.[In] March 2013, under the applicant’s supervision with the presence of 10 to 12 of his friends, construction work started again. After four days of work, [Mr A] sent 15 to 20 Muslim people, who seemed to be students of the local Madrassa, equipped with sticks and knives to the construction site, and ordered them to “stop work and tried to ruin their construction work”. The applicant and his friends confronted them and became involved in an argument with them. The group attacked the applicant and his friends suddenly, and they began fighting each other. Several people from the fight were injured. He also became injured but he was able to evade serious attack. A few attackers from the Muslim group were also injured.
xii.Two days later, the applicant’s father and a few Buddhist villagers lodged a case at [a] Police Station against [Mr A] and his associates. However, the police refused their case, as [Mr A] had already lodged a case against those involved in the fight, accusing the applicant of attempted murder. His uncle [Mr C] and friends [Mr D] and [Mr E] were also accused persons.
xiii.[In] April 2013, the police came to the applicant’s home and attempted to arrest him. At the time, he was in Chittagong city for business. The next day, his father called and told him that the police came to their home to arrest him. He advised him not to come back home. Two days letter, he received 50,000 taka from his father. He went to Dhaka and stayed with his friend’s family for almost three weeks. He called his family and they told him that the police had come to his house a couple of times searching for him, asked his father lots of questions and tortured him.
xiv.His friend advised him to leave Bangladesh for India. He used a broker to [travel] without a passport. He departed on [Date 1] May 2013, and on [Date 2] May 2013, he arrived in India in [a] District of [Province]. He found a Buddhist temple at [location]. At the temple, the monk [Mr F] allowed him to stay.
xv.On 17 May 2013, the applicant was ordained as a Buddhist novice, and he stayed at the temple for about six months, studying religious teachings and performing daily activities.
xvi.When contacted, his family told him that the police came to his home a few times searching for him and harassed his family. [Mr A]’s people also came to their home and threatened his family so that they would hand the applicant over to the police. Various types of oppression continued, like grabbing his family’s land, physical and mental torture of his family members and the forceful collection of harvested crops.
xvii.In December 2013, the applicant was asked to leave the temple in [location] and he travelled to [City 1]. Again he stayed with the Buddhists. In early 2015, with the assistance of the monks and a broker, he obtained an Indian passport. The name used in the passport, that is, [Alias 1], is not his actual name. The applicant was advised by the broker to try to leave India for other countries as there were some risks involved in continuing to live in India with this passport. He searched for a chance to get a visa where he would be able to live permanently and contacted a travel agent.
xviii.The agent advised him to visit other countries before applying for Australia. [In] May 2016, he visited [Country 2] for 20 days, and visited [Country 3] while he was there. When he came back to India, the travel agent processed a visitor visa for Australia.
xix.When he arrived in Sydney he had to “disrobe” as it was not convenient for him to continue as a monk in Australia.
xx.He had no choice except to claim a protection visa from the Australian Government. On one side, his life is threatened by Muslim aggressors, on the other he is falsely charged as a criminal by Bangladesh police. He was very scared because the terrorists’ network is all over Bangladesh. He could be killed anytime.
Documents submitted to the Department
The applicant submitted the following documents to the Department in support of his application:
i.Applicant’s Indian passport under the alias [Alias 1].
ii.Statement of the applicant.
iii.Bangladesh National ID card of the applicant.
iv.Applicant’s Bangladesh birth certificate.
v.Applicant’s nationality certificate.
vi.Certificate from [a] High School dated 14 July 2016 and attested on 21 July 2016.
vii.Bangladesh National ID card of the applicant’s father, [Mr G].
viii.Bangladesh birth certificate of the applicant’s father, [Mr G].
ix.Bangladesh National ID card of the applicant’s mother, [Ms H].
x.Bangladesh birth certificate of the applicant’s mother, [Ms H].
xi.Translation dated 1 December 2016 of an arrest warrant from [a] Police Station for the applicant dated [April] 2014.
xii.Translation dated 1 December 2016 of a Charge Sheet from [a] Police Station setting out the charges against the applicant, description of the alleged offence and investigation dated [April] 2014.
xiii.Translation dated 1 December 2016 of First Information Report from [a] Police Station dated [March] 2016.
xiv.Translation dated 1 December 2016 of a letter from [Mr I] to [the] Police Station dated [March] 2013.
On 9 December 2016, the applicant attended an interview with the delegate. The Tribunal has reviewed a recording of that interview and is satisfied that the delegate has accurately captured the information presented in their decision record. In refusing the visa, the delegate found that the applicant was not a credible witness or a witness of truth.
The Tribunal received an application for review from the applicant on 27 December 2016. At that time, the applicant also submitted only a copy of the letter of notification from the Department of refusal of the visa.
On 28 June 2021, the Tribunal sent an outreach letter to the representative for the applicant advising the matter was being prepared for hearing, inviting the applicant to provide any additional evidence within 7 days and requesting that a pre-hearing information form be completed.
On 1 July 2021, the Tribunal received a Hearing Information Form in which the applicant indicated that he would have no difficulty participating in a hearing by video or telephone, and he possessed the appropriate technology to participate in a hearing by telephone.
On 22 November 2021, the representative for the applicant submitted further documents, which included the following additional material:
i.Several photographs, one identified of a protest in the applicant’s area in 2011.
ii.Letter of support from [Mr J], District & Session Judge’s Court, dated 16 November 2021.
iii.Letter of support from [Mr K], dated 17 November 2021.
On 23 November 2021, the representative for the applicant provided additional country information regarding persecution against minorities and fear of growing extremism in Bangladesh:
i.Oppression of minorities hinders harmony in Bangladesh, Asian Catholic Diocese Directory, 5 February 2021.
ii.Executive Summary, US Department of State, 2020 Report on International Religious Freedom: Bangladesh.
iii.Minorities in Bangladesh Protest Against the Establishment of Islam as State Religion,19 June 2021,
iv.Bangladesh’s Hindus living in fear following mob attacks, BBC News, 22 October 2021.
v.Hindu attacks, Minority Rights, 19 October 2021.
vi.Bangladesh’s religious minorities are under attack, The Economist, 6 November 2021.
vii.Islamic State Ideology Continues to Resonate in Bangladesh, 3 September 2019.
viii.Dhaka witnesses lone wolf terror attack weeks after Taliban takeover, The Economic Times, 20 September 2021.
ix.Taliban Victory generates Echoes in Bangladeshi Social Media, VOX Pol dated 15 September 2021.
x.Islamist emboldened by Taliban win in Afghanistan, dw.com
xi.How Taliban’s expansion in Afghanistan could signal the rise of Bangladesh based terror group, 15 August 2021.
The applicant was invited to appear before the Tribunal by video using Microsoft Teams on 29 November 2021. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages. The applicant’s representative also participated in the hearing. The matter did not conclude on that date and the Tribunal adjourned the matter for further evidence.
On 20 December 2021, the applicant submitted further documents, including:
i.A discharge summary for [Alias 1] from [a] Hospital, date of discharge 28 January 2018, and photograph of the applicant.
ii.Letter from [Mr L], president of a Buddhist organisation].
iii.Photographs of the applicant undertaking religious activities in Australia.
iv.Extracts of the applicant’s Bangladesh passport.
The applicant attended a further hearing before the Tribunal by video on 28 January 2022. Again the hearing was conducted with the assistance of an interpreter in the English and Bengali languages. Once more, the representative of the applicant also participated in the hearing. Following the hearing the applicant requested additional time to make further submissions to the Tribunal, and leave was granted to provide any further documents or materials by 4 February 2022.
On 8 February 2022, the Tribunal received a further statement and where relevant the Tribunal has set out the further comments of the applicant in its reasons below.
FINDINGS AND REASONS
Nationality
The applicant arrived in Australia on an Indian passport, issued in the name of [Alias 1]; he claims, and the Tribunal accepts, that this was a false passport. The applicant has produced to the Department a copy of his Bangladeshi Nationality Card, his birth certificate and that of his parents, and to the Tribunal, a copy of his Bangladeshi passport. On the basis of the documents submitted and his oral evidence, it is accepted that the applicant is a national of Bangladesh. The Tribunal will assess his claims on that basis. The Tribunal further accepts that the Indian passport that he travelled on is not genuine, and that he does not have the right to reside in any country other than Bangladesh. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Bangladesh is the receiving country for the applicant for the purposes of s 36(2)(aa).
Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
The Tribunal has had regard to the applicant’s evidence regarding the false criminal charges issued against him in Bangladesh arising from the dispute involving the land his father donated to the Buddhist community. The Tribunal found the applicant’s evidence in this matter unreliable, substantially inconsistent and illogical. The Tribunal’s concerns about the applicant’s evidence are considerable and numerous and are detailed below.
When the Tribunal first raised concerns with the applicant about his evidence in the latter part of his first hearing, the applicant claimed that he had medical and memory problems arising from a medical issue that occurred in 2019. The applicant had not presented any evidence to support that he was suffering from a medical condition and he then identified for the Tribunal that he underwent [surgery] in 2019. On 20 December 2021, the applicant presented to the Tribunal a discharge summary from [a] Hospital, confirming that he presented to the emergency department on 20 January 2019 with acute [pain] and was found to have a [medical condition] requiring surgical intervention. He was reported to have been discharged on 28 January 2019, and it is documented that at that time he was comfortable and pain free with no restrictions to his diet or mobility. There is no mention of any head injury, memory problems or mental health conditions. When asked about any ongoing treatment, the applicant claimed that if he gets [pain] he will see a doctor, but the [condition] had not reoccurred. He said that he had anxiety that his condition may occur again, although when questioned was not able to confirm any advice he had received that this was a likelihood, or that he had received any treatment for anxiety, mental health or memory related issues. Additionally, the applicant has produced no evidence to demonstrate that he has had any further treatment arising from the [condition] since 2019. The applicant confirmed that he was in good health at the time of the hearing, and when questioned, stated that he was able to participate in the hearing. When asked at the hearing on 28 January 2022 if he was affected by any condition that would impact on his ability to think, reason or remember when giving evidence to the Tribunal, the applicant replied in the negative. In a submission received on 8 February 2022, the applicant has raised a new mental health issue “due to separation from the house” and problems with his physical health. While the Tribunal accepts that in 2019, the sudden onset of the [condition] was a significant medical incident for the applicant at that time, the applicant has not produced any medical evidence that he has ongoing issues with his physical or mental health, or that he has not fully recovered, such that they would impact on his ability to meaningfully participate in the hearing. Further, he himself at times during both hearings confirmed that there were not. The Tribunal has considered that the applicant may suffer from anxiety due to fear of further [medical issues], separation from his family and from having to engage in the formal Tribunal hearing process, however the Tribunal is not satisfied that the possibility of this anxiety would have also impaired his ability to participate in the hearing. The Tribunal is not satisfied that the surgery the applicant underwent almost three years prior to his Tribunal hearings, or any general anxiety, in the absence of medical evidence, would account for any memory problems as claimed by the applicant or significant inconsistencies that the Tribunal identified in his evidence as discussed below.
Firstly, when the applicant narrated his claims to the Tribunal at the hearing on 29 November 2021, the timeline of events that he presented did not align with the information contained in his written claims. He said that approximately three days after his father made the declaration that he intended to donate the land for the Buddhist [facility], Muslims set up a fence around the land and seized it. The applicant claimed he and his father immediately protested and approached the Union Council. As the Union Council did not appear to be resolving the matter, another two to three days after the Muslims constructed the fence, the Buddhist community decided to construct a wall around the disputed land. The Tribunal put to the applicant that it found this information inconsistent with his written claims in which he set out that there was approximately a two year gap between the Muslims constructing the fence, and the Buddhist community attempt to build a wall. In response, the applicant acknowledged the inconsistency, and claimed the matter was very time-consuming and that there was an ongoing dispute for the next two years. The Tribunal put to the applicant that it did not consider that merely acknowledging the inconsistency was a satisfactory explanation for it. The applicant offered a further explanation for this inconsistency in the statement received on 8 February 2022; he claimed that the two days he was referring to was when his father went to the police to lodge a case. This second explanation is not accepted by the Tribunal considering the timing and context in which the applicant’s oral evidence was initially received. He had shortened the timeline to two days before the Tribunal had come to discuss with him the police complaint. The Tribunal considers that the considerable discrepancy in the timeline of events, and the repeated unsatisfactory attempts by the applicant to explain them, demonstrate the unreliability of the applicant’s evidence.
Secondly, in his oral evidence at the hearing on 29 November 2021, the applicant made claims that the land donated for the Buddhist [facility] by his father was situated next to a Muslim graveyard. When the Tribunal sought to clarify this, he corrected his evidence and claimed it was actually a Muslim madrassa. The applicant was asked why he had not made previous claims regarding the land being located next to a madrassa, but the applicant only responded that he might have left this out. The Tribunal had concerns about the legitimacy of the proposition that his father, as [position] of the Buddhist council, would determine that it would be appropriate to build a Buddhist [facility] next to an established madrassa of the Chatra-Shabir, the student wing of Jamaat-e-Islami. According to DFAT, Jamaat-e-Islami is the largest Islamist party in Bangladesh, and is committed to the creation of an Islamist state and the removal of ‘un-Islamic’ laws and practices.[1] Further, the Chatra-Shibir is reportedly one of the strongest student fronts in the universities of Chittagong, with a notorious reputation for violence. Such an action would only serve to incite religious tension and put the applicant’s Buddhist community at risk. It was considered that this additional claim by the applicant demonstrated that that the applicant was embellishing his evidence at the hearing.
[1] DFAT Country Information Report, Bangladesh, 22 August 2019 at 3.83.
Thirdly, in his written evidence the applicant set out two incidents occurring in 2013, one early in the year and a second in March 2013, where he claimed that [Mr A] sent Muslim gangs or thugs to the land to halt construction of the fence around the Buddhist land. In his oral evidence, the applicant described only the one event, which he placed in 2011. When the Tribunal asked the applicant to explain the discrepancy, he adjusted his evidence and said that actually the Muslims had come many times and created problems. This response was not accepted as it did not acknowledge the discrepancy identified by the Tribunal or the concerns put to the applicant about the reliability of his claims.
Fourthly, in his evidence to the Tribunal at the hearing on 29 November 2021, when asked how many people were building the wall around the proposed Buddhist [facility], the applicant said that there were approximately 10 to 12 workers on site and he was attending at the time with other villagers, observing the construction. The Tribunal took steps to clarify the applicant’s evidence at this stage and asked him if he was just an observer at this stage with other villagers, and he replied that this was correct. Later, when the Tribunal put to the applicant that this evidence was considered inconsistent with his written claims wherein he stated that he was very much involved in the building work and worked as the contractor for his uncle undertaking the work, the applicant adjusted his evidence and said that when he was observing the construction work, what he wanted to mention was that he was observing it as a supervisor. He then claimed that in that sense he was participating actively in the construction. Once more, the Tribunal put to the applicant that it had concerns about the reliability of his evidence and that he was now changing his claims. The applicant again raised the event of his operation in 2019 and said that it was likely the Tribunal would find some discrepancies, and he suggested that he might not be fully recovered. As set out above, the Tribunal has no medical evidence before it that the applicant has not recovered or that it would affect his ability recall the events he claimed occurred in Bangladesh. In his statement received on 8 February 2022, the applicant again claimed that in his view, supervising included involvement in the construction and he also provided a statement that he was working under his father’s guidance. This further added to the perceived inconsistences with the evidence of the applicant as the claim that he was working under his father’s guidance is difficult to reconcile with the applicant’s earlier statement and oral evidence that his uncle’s business undertook the construction work.
Fifthly, the Tribunal asked the applicant at the hearing on 29 November 2021 whether he was ever harmed in Bangladesh before he departed for India, and the applicant responded that he was not. This evidence was considered inconsistent with the applicant’s written claims in which he stated that between November 2011 and early 2013 “[Mr A] started to commit oppressive activities” in relation to the applicant and his family and on many occasions they “also physically tortured the applicant’s family members including himself”. When asked to respond to this inconsistency, the applicant again adjusted his evidence and replied that, in fact, what he wanted to mention was that he was not hospitalised. He claimed that there was a minor incident where he was pushed in 2011. He said he had not mentioned it because he was not physically injured or hospitalised. He further sought to clarify that physical torture meant that there were threats to his father continually. The applicant then assured the Tribunal that this was the only physical incident that had occurred while he was in Bangladesh. The Tribunal had considerable difficulty reconciling this explanation, and the constant adjustments by the applicant undermined his credibility and the reliability of his claims.
Sixthly, in the applicant’s oral evidence at the hearing on 29 November 2021 when discussing a fight that broke out on the donated land between Buddhist workers and the Islamic group in March 2013, he said that he was not injured. He also told the Tribunal that at the time no Muslims were injured in the fight. The Tribunal found this oral evidence again to be inconsistent with his written claims that accompanied his visa application. In particular, he had set out in writing that he became injured but was able to evade serious attack, and that a few of the Muslim group became injured. When asked to comment, the applicant said that the Muslim group were not actually injured but just put on some fake bandages when they went to put a false case against him. The applicant then further adjusted his evidence and claimed that what he had meant to say was that he was subject to pushing but that he was not hospitalised. The Tribunal did not find this explanation satisfactory, particularly given the immediate earlier attempts it had made to clarify the applicant’s evidence as to whether there were any physical incidents he had experienced in Bangladesh, as set out in paragraph 32 above. In his written statement received on 8 February 2022, the applicant claimed that during the fight he was pushed and this caused severe pain. He further stated that one of the reasons he stated he was tortured was because the pain was severe. This later claim of severe pain amounting to torture is difficult for the Tribunal to reconcile with just pushing that did not result in injury. It still does not explain for the Tribunal the initial failure to mention any injury and further demonstrates to the Tribunal the lack of credibility of the applicant and the unreliability of his claimed experiences in Bangladesh.
Seventhly, it was also of concern for the Tribunal that in further describing a fight with the Muslims at the land during the wall construction, he only mentioned that the Muslims who attacked were armed with sticks. In his written claims he referred to them being armed with sticks and knives. When asked to explain this difference, the applicant did not provide a satisfactory explanation for the discrepancy, and adjusted his evidence to claim to the Tribunal that they also had knives and claim that he saw them.
Eighthly, in his oral evidence at the hearing on 29 November 2021, the applicant said that his uncle, [Mr D], was killed in the fighting that broke out between the Buddhist workers and the Muslim group. The applicant was asked to explain why he had not mentioned in his detailed written claims that someone was killed, particularly a relative. The applicant offered by way of explanation that he was completely shocked at the time and that the police had come to take the body away for investigation. In his post hearing statement of 8 February 2022, the applicant again claimed that the incident was a traumatic event and he did not want to remember it. While it would be reasonable for the applicant to be shocked at the time of the death of his uncle, his application for the visa and the statement accompanying it was made several years after the alleged event. The Tribunal did not consider it consistent that he would include details of friends being hospitalised but make no mention of the death of his uncle. Furthermore, this response at the hearing was considered inconsistent with his earlier evidence to the Tribunal that the police had not attended on the day of the fighting with the Muslims. When this was identified to the applicant, he further adjusted his evidence and then said that his uncle had been taken to hospital, and it was the day after that the police came and took his body. The Tribunal remained unconvinced by this further explanation, and it was identified to the applicant that the constant changing of his narrative undermined his credibility and the credibility of his claims.
Ninthly, the applicant told the Tribunal at the hearing on 29 November 2021 that he had attended the police station to file a complaint against [Mr A] with his father and some other senior Buddhist members. The Tribunal again confirmed with the applicant that this was the way events transpired at the hearing on 28 January 2022. Then, when the Tribunal asked the applicant to explain the inconsistency with his written statement, where he set out only that his father and a few other respected Buddhists went to lodge a complaint with the police, the applicant changed his version of events and said that actually he was not there and he had gone to Chittagong city for a week. The applicant again referred to his past [surgery] and its impact on his memory. As set out above, the Tribunal is not satisfied from the evidence that the applicant has presented that this condition has impacted on his memory such that it could reasonably explain the inconsistencies identified. The Tribunal considered that the repeated changes to the applicant’s evidence demonstrated that his claims may not be based on his actual experience in Bangladesh.
Tenth, the Tribunal took the time to confirm with the applicant the name of his uncle that he claimed was killed by Muslims when the fighting broke out while constructing the [facility] fence at each hearing. This included the spelling. At the hearing on 28 January 2022, the applicant was then asked why in his written statement he had described [Mr D] as one of his friends, not his uncle, and had claimed that he was one of those included in the case by [Mr A] with the police. In reply, the applicant said that there were a few [Mr D] and maybe it was one of them. The fact that the applicant had included reference to a [Mr D] who was not his uncle further undermined for the Tribunal the claim by the applicant that his uncle had been killed at this time. But it was also of concern for the Tribunal that the applicant did not remember the [Mr D] who he had set out in his written statement as his friend and co-accused. The applicant was also asked to comment on the fact that in his oral evidence to the Tribunal he had asserted that he was the only person that [Mr A] had put a case against, yet his written statement and the arrest warrant and complaint he had filed with the Department identified that several others were charged with him. The applicant offered by way of unsatisfactory explanation that he was the main person that [Mr A] wanted to put a case against because he wanted the land. The Tribunal then asked the applicant if he could remember the names of any of his co-accused and he said that he could not. In his statement, the applicant had claimed that his uncle [Mr C] was one of his co-accused as well as his friends, [Mr D] and [Mr E]. The Tribunal found it remarkable that the applicant could not recall that friends and a relative were also charged, and the applicant’s inability to provide consistent evidence about this matter further demonstrated to the Tribunal that his claims lacked reliability.
Eleventh, the timing of events that transpired after the fight at the land in 2011 as described in his oral evidence to the Tribunal was again not consistent with his written statement. The Tribunal could find little commonality, for in his oral evidence to the Tribunal it was the day following his father’s attendance at the police station that the police came to his home to arrest him. In his written statement the applicant said that his father contacted him a couple of weeks later, after [Date] April 2013, to tell him that the police had come. In his oral evidence on 29 November 2021, the applicant also told the Tribunal that he had stayed in Chittagong for five months. Yet in his written statement, the applicant had set out that he had spent two days in Chittagong before he travelled to Dhaka. Then in his oral evidence the applicant claimed that in Dhaka he stayed with a friend for a further five months. The Tribunal made an effort in its questioning to confirm the timing with the applicant, and in his oral evidence on 29 November 2021 he suggested that he may have actually been in Dhaka for between five and seven months. At the hearing on 29 November 2021, he confirmed that he was in hiding in Bangladesh from 2011 until 2013, when he escaped to India. In his written statement the applicant set out that he had spent only three weeks in Dhaka with his friend, [Mr M]. When these discrepancies were put to the applicant, he initially acknowledged the travel route, not the timing discrepancies. When further pushed for an explanation, the applicant offered that he had forgotten. The substantial changes in the timeline of events, and the applicant’s inability to explain the discrepancies further undermined for the Tribunal the credibility and the reliability of his claims.

Twelfth, when the Tribunal asked the applicant what had happened to his co-accused, [Mr D], [Mr E] and his uncle [Mr C], the applicant offered that they had attended court and received bail, and he maintained that the case was only kept alive against him and not the other accused. It was noted that the applicant had not previously set this out in his statement or in any of the supporting documents on which he relied. The Tribunal further discussed with the applicant that according to his statement they were all facing charges of attempted murder, so the Tribunal found it difficult to accept that the case just went away. By way of explanation the applicant offered that the land did not belong to his other co-accused and that [Mr A] was actually only after him because he wanted the land. The Tribunal also had difficulties with this explanation as the applicant had set out in his statement and his earlier oral evidence that his father had donated the land to the Buddhist community for the [facility]. The applicant also had given evidence to the Tribunal at the hearing that the transfer had been stamped. As the land never belonged to the applicant and his father had allegedly divested himself of his interest in it, the Tribunal did not consider it plausible that [Mr A] would have an interest in the applicant or wish to maintain a case against him. The applicant suggested that because he was supporting his father, [Mr A] was targeting him because he was concerned about the applicant’s support for his father. The applicant suggested several times during the hearings that his father was an uneducated man and was in need of assistance. This was also difficult to reconcile with the applicant’s evidence that his father held a senior position of [position] of the Buddhist council, he owned several pieces of land and appeared to hold a position of influence in the community, and is not accepted by the Tribunal. Further, although the applicant claims that he was perceived as a great influence on his father, the applicant also did not stay to support his father. According to his claims, he departed the country proximate to the time of the police complaint by [Mr A], and did not face the outcome with his uncle and friends. He has not returned since 2013. The applicant’s reasoning as to why he would be of adverse interest to [Mr A] appeared as a transparent attempt by the applicant to create a profile to found a claim for protection.
Thirteenth, the applicant also provided oral evidence that his father was currently engaged in a legal case, brought by [Mr A], claiming ownership of the land. The Tribunal found this difficult to reconcile with his earlier oral evidence that the transfer of the land had already taken place. It was also considered inconsistent with his written claims that when the Union Council had failed to resolve the dispute in 2011, the matter had been taken to the police who had come to make an enquiry but could not find any clue in favour of [Mr A]. When asked to address the Tribunal’s concerns, the applicant claimed that there was a gap for a while and then the same problem re-started with [Mr A] trying to get the land again; he repeated this claim in post hearing submissions. The Tribunal holds concerns that the applicant was merely once again adjusting his evidence. It has also considered the claim of the applicant to the Tribunal that he could not return to Bangladesh as [Mr A] and his supporters would murder him, because if they succeeded [Mr A] would be able to take over ownership of the land. This to the Tribunal did not appear plausible. It is his father who clearly has the greater tie to the land, and the Tribunal did not consider it believable that the applicant’s presence or death would give rise to a transfer of the land. When asked about problems faced by his father, the applicant repeatedly referred to the searching of his home to look for the applicant and the pressure being applied to produce the applicant. He mentioned other harassment such as stones being thrown on the roof. The Tribunal considered this to be minor harassment, and it is not accepted, as argued by the applicant, that his father’s age, lack of education and ill health would protect him from harm. Such attributes would arguably make his father more vulnerable to the actions of [Mr A]. If [Mr A] was truly as violent and bent on assuming ownership of the land as the applicant claimed, it did not make sense to the Tribunal that he would pursue the applicant rather than his father, or that he would have any need to engage in minor harassment to coerce his father into producing the applicant. The Tribunal did not find it plausible on the evidence that the applicant would be of any ongoing interest to [Mr A] or his supporters.
Fourteenth, the Tribunal has considered the documents provided by the applicant to support his claims and is not satisfied that they are reliable. It is noted that the Nationality Certificate contains an assertion that the applicant is of good moral character. On the evidence of the applicant, he had left Bangladesh approximately three years before the certificate was issued, although he is claimed to be personally known to the union council member. Additionally, if the applicant genuinely had an outstanding arrest warrant for attempted murder against him in his area, it is not considered likely that a Muslim union council member would attest to the applicant’s good moral character. Finally, the birth certificate number referenced on the certificate does not correlate with that produced by the applicant, and the Tribunal finds that it lacks integrity.
The Tribunal is also not satisfied that the translation of the arrest warrant and complaint of [Mr A] produced by the applicant are genuine. The Tribunal is not satisfied that the events as set out by the applicant in his claims are genuine given the concerns expressed above. Further, the Tribunal has had regard to the assessment of DFAT that corruption is widespread in the courts and the police and that it is possible that genuine documents are fraudulently obtained as part of this process. Further, DFAT assesses that local media often report on cases where fake court documents are created for personal gain.[2] The Tribunal is not persuaded that the applicant has disputed this advice, and his assertion that such documents cannot be forged has not disputed similar independent country advice from various sources.[3] The Tribunal also considers that the letters that the applicant has produced allegedly from his lawyer add little to the integrity of the documents. The applicant was unable to satisfactorily answer, when questioned by the Tribunal, why his lawyer would write to him about his case in English, and offered only an explanation that he may have written them to his lawyer. Moreover, both pieces of correspondence from his lawyer allegedly advising him of the progress of his case are dated with the same date and contain improbably similar advice.
[2] DFAT Country Information Report, Bangladesh, 22 August 2019 at 5.44.
[3] UK Home Office, Country Information Note, Bangladesh: Documentation, March 2020 at 1.5. Research Directorate, Immigration and Refugee Board of Canada, Bangladesh: Availability of fraudulent documents, especially identity documents, medical files and financial documents; state response (2017–December 2021).
Fifteenth, the Tribunal is not satisfied that the photographs produced by the applicant corroborate his claims, and his evidence when asked to comment on them at the Tribunal appeared to further undermine his reliability and credibility. When asked about the photograph of the bloodied monk, the applicant claimed that someone else took the photograph but he was present when the incident happened. The Tribunal then discussed a photograph of a protest and it was noted that the bleeding monk was pictured on the banner at the protest. The applicant said that he was at the protest, and “we made the banner” because “we were demanding rights and justice”. The applicant claimed that he was with others in his area, and the protest was in relation to a temple. The Tribunal then questioned the applicant as to how this related to his claims and why he had not previously mentioned in his written claims or evidence that he was involved in protest activity. The applicant then said that “it was not in his memory”, but with the protest he was trying to create awareness; the events had taken place in another suburb and they did not want similar incidents caused by Jamaat-e-Islami in their area. The Tribunal put to the applicant concerns about the introduction of new claims that he was involved in protest activity against the actions of Jamaat-e-Islami in Bangladesh, and that it may reflect on his credibility. The applicant then changed his evidence and said that the photos may have been taken by other people; he withdrew his claims that he had been involved in the protest personally, but he had taken the photo and was just trying to highlight things that occurred in his area. The Tribunal is not satisfied that any weight can be attributed to these photographs, and it is not satisfied that the applicant himself took the photos, or was present or was previously involved in any protest activity against Jamaat-e-Islami in Bangladesh.
When questioned about the further photographs, the applicant claimed that two depicted construction of the wall around the Buddhist [facility] land. The applicant is not in the photograph, and as put to the applicant at the hearing, the Tribunal had concerns that the two photographs depicted the same construction or even the same piece of land. It is certainly not consistent with his description of the land being barren and not suitable for farming. The applicant claimed the final photographs were of a small temple that had been constructed on the land which the applicant said [Mr A] and his supporters destroyed, and of a meeting of the Buddhist council to discuss the destruction of the temple. Under questioning, the applicant said that he was present when the temple was destroyed. Again, this is not consistent with the applicant’s description of the land being barren. Although the applicant indicated in his written claims that a temple was proposed, this was in addition to the wall, and construction had only just started when the applicant fled. The building depicted appears to be an older construction, not a recent construction. The introduction of this additional new claim indicated to the Tribunal that the applicant was manufacturing his evidence, and when the Tribunal raised this with the applicant, he did not have a satisfactory response and merely claimed he was trying to show the reasons why things happened. This response did not address the concerns of the Tribunal regarding the late introduction of this new claim; the evidence offered by the applicant as to the relevance of the photograph only served to further undermine his credibility and the Tribunal is not satisfied that any weight can be attributed to the photographs.
Considering the evidence overall, the Tribunal is not satisfied that the reasons that the applicant has advanced that he left Bangladesh and fears harm on return are truthful. It is not accepted that his father donated land next to a Chatra-Shibir madrassa owned by a member of Jamaat-e-Islami called [Mr A]. The Tribunal does not accept that there is any land dispute in Bangladesh involving his father with any member of the Jamaat-e-Islami, any Muslims, Rohingya refugees or anyone else. It is also not accepted that the applicant was involved in an altercation over the land or that he has an outstanding attempted murder case against him, and an outstanding arrest warrant, in relation to that altercation. The Tribunal is not satisfied that the applicant is of any interest to the police or the authorities in Bangladesh for the reasons that he has claimed. The Tribunal finds that the applicant has manufactured his claims about the land dispute with [Mr A] in order to found a claim for protection, and it is not satisfied that he had to leave Bangladesh for the reasons that he has claimed. Further, while the Tribunal accepts that the applicant spent time in India before arriving in Australia, for completeness the Tribunal does not accept that the applicant was forced to remain in hiding in India due to fear of [Mr A] or any harm in Bangladesh. In his oral evidence at hearing, the applicant referred to spending only to a few months with monks in India, and that he was at other times in relevant villages. The Tribunal considers that the applicant may have been motivated by other opportunities, such as employment, to remain in India. As to the applicant obtaining a false passport to travel from India, the Tribunal accepts the evidence of the applicant that his father did not know how to send his Bangladeshi passport with him and that he did not perceive that it would be of value for his proposed travel.
The Tribunal accepts, although the applicant did not claim, that he was of the indigenous Barua ethnicity. DFAT assesses that most Barua, particularly those living in Chittagong, do not face social discrimination and violence based on their ethnicity[4]. The applicant, when asked by the Tribunal, did not identify any harm based on his ethnicity, and the Tribunal makes a finding accordingly.
[4] DFAT Country Information Report, Bangladesh, 22 August 2019 at 3.10.
It is accepted that the applicant is a Buddhist. The applicant told the Tribunal that prior to his problems with [Mr A], he would attend the temple one to two times a week and he did not have any difficulty worshiping his religion. As the Tribunal does not accept that the applicant’s claims about [Mr A] are factual, the Tribunal is satisfied that the applicant could return to Bangladesh and continue to worship his religion weekly in this manner without incident. In making this finding, the Tribunal has considered the various articles submitted by the applicant’s representative on the persecution of religious minorities in Bangladesh. The Tribunal has also had regard to other country information sources including the latest DFAT report, which states that there have been occasional instances of religious based violence in Bangladesh targeting Buddhists. The most serious incident occurred in September 2012, when up to 25,000 Islamists burned several Buddhist temples and approximately 50 Buddhist houses in Cox’s Bazar during protests against a Facebook posting by a Buddhist man that showed a desecrated Koran. [5] DFAT reports, however, that there was an effective police response to the incident. [6] While it is accepted that Buddhists are a small minority in Bangladesh, there is no evidence of widespread societal violence or other forms of serious harm being inflicted on the Buddhist community on a systemic basis. The Tribunal has also considered the claim by the applicant that Rohingya Muslims continued to target and kill Buddhists in Bangladesh. The Tribunal is unable to locate reports of ongoing and systemic attacks. Aside from the incident at the [facility] in 2013, the applicant had provided no details of any attacks or killings by Rohingya towards his family or community. The Tribunal accepts that there are reports that some Rohingya participated in the incident in 2012, mentioned above. However, it is also noted that DFAT reports that it understands that Bangladesh authorities have deployed additional police in Buddhist areas to prevent any repeat of the 2012 protests. Once more, it appears that the state is taking steps to protect Buddhist.
[5]As above at 3.52.
[6] As above.
The Tribunal has also considered the claim by the applicant that he became a Buddhist novice while in India. At the hearing, when asked about this, the applicant initially identified himself as a novice; when questioned he then maintained that he became a monk. When asked what this involved, the applicant’s evidence was that he was able to stay with Buddhists in India and had to help clean the temple; he would wear garments and sometimes visit the guru [Mr N]. The Tribunal is not satisfied from this evidence that the applicant was ever ordained, or that he became a monk, and his evidence is that he did not continue this lifestyle in Australia. It was the applicant’s evidence that in Australia he would attend temple in [Town 1] maybe once a month. The Tribunal also accepts, from the letter of support provided by [a Buddhist organisation], that the applicant participates in social events as well as religious events in Australia. The Tribunal is not satisfied that the time spent by the applicant with Buddhists in India has increased his religious profile, or that he is anything other than an ordinary worshipper. The Tribunal has also had regard to DFAT advice that assesses that Buddhists face a low risk of societal violence in the form of occasional localised incidents.[7] It is not satisfied that the applicant has presented reliable evidence of any localised incident that would put him at risk of harm. The Tribunal has also considered whether the applicant’s father, as a [position] of the Buddhist council, increases the profile of the applicant. While the Tribunal is prepared to accept that his father may hold a position on the Buddhist council in his local area, it does not accept the claims of donated land or that he is a significant landholder. It accepts the evidence of the applicant that he is a simple farmer. It also accepts the evidence of the applicant presented at the hearing that prior to his dispute with [Mr A], his father was able to attend the temple to worship several times per week without incident. As the Tribunal does not accept that his father ever donated land for a [facility] or was involved in a dispute with [Mr A], it does not accept that he has been persecuted, tortured, subject to legal proceedings or prevented from worship as a Buddhist for this reason. Similarly, the Tribunal does not accepts the applicant’s claims of ongoing harassment of his father due to the land and any legal proceedings brought against the applicant or his father by [Mr A]. As the applicant has not been present in Bangladesh since 2013, and was just an ordinary worshipper prior to his departure, it is not satisfied that he has any prominence in his local area himself and it is not satisfied that his experience in India or his relationship to his father would increase the profile of risk of the applicant as a Buddhist. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution upon return to Bangladesh as a consequence of his Buddhist religion, or membership of a minority religion.
[7] DFAT Country Information Report, Bangladesh, 22 August 2019.
In his written claims the applicant maintained that his area in Bangladesh was notorious for Muslim terrorists, refugees from Rohingya and financial support for terrorism. The submissions of the applicant’s representative also raised claims of a fear of growing Islamic extremism, and the presence of the Taliban and ISIS operating in Bangladesh. Other than the targeting by [Mr A], his supporters or those he has paid (which possibly included the Jamaat-e-Islami, the Chatra Shabir, Rohingya refugees and the police), the applicant has provided no evidence of any past harm from Muslim terrorist, or Rohingya refugees or the Taliban, Isis or any other Muslim extremists. The applicant has also not provided evidence or made claims that these groups generally target his family. The Tribunal has carefully reviewed the country information submitted by the applicant’s representative and is not satisfied that they demonstrate incidents specific to the applicant’s home area, or that it is renowned for such activities. The Tribunal also does not accept the evidence by the applicant that he has in the past been involved in protest activity. He is not depicted in the photograph of protesters he has supplied from 2011, and the Tribunal is not satisfied from the evidence of the applicant that he was present or participated in any activity. There is no evidence that he has engaged in any protest activity while in India or Australia, or that he has a future interest in protesting in the foreseeable future. The Tribunal is not satisfied that the applicant was active in any protesting in the past in Bangladesh and finds the likelihood of him being caught up in any community violence from terrorist activities in the future is remote. Furthermore, the country information is that the government has responded strongly to militant attacks, authorities have detained thousands of Jamaat-e-Islami in counter-terrorism operations, including forced disappearances,[8] that the law imposes the death penalty for terrorism offences,[9] and that the law enforcement agency in Bangladesh includes multiple anti-terrorism units.[10] It is not satisfied that the state condones any terrorist activity or that the applicant would be targeted by or denied protection from terrorists for any reasons pursuant to s 5J of the Act.
[8] DFAT Country Information Report, Bangladesh, 22 August 2019, at 3.84.
[9] As above at 4.9.
[10] As above at 5.4.

The applicant also raised at the hearing that he could not return to Bangladesh because of his medical condition. While the Tribunal accepts that the applicant suffered a [medical condition] in January 2019 that required hospitalisation, the evidence is that the condition underwent successful surgical correction and has not reoccurred. There is no evidence that the applicant requires ongoing treatment that he could not access in his home country, or that treatment would be denied to him because he is a Buddhist or for any other reason. The Tribunal does not accept that the applicant has a well-founded fear of harm for this reason.
The Tribunal has considered the claims of the applicant individually and cumulatively, and it is not satisfied that the events that he described in Bangladesh are factual. It does not accept that he will face harm on return from [Mr A], members of Jamaat-e-Islami, the Chatra Shibir, any Muslims, the Bangladesh authorities, Rohingya refugees, terrorists, ISIS or the Taliban or anyone else. It does not accept that because he is of the Buddhist religion, he has a well-founded fear of harm.
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).
Is the applicant entitled to complementary protection?
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).
As set out above, the Tribunal is not satisfied that the applicant’s claims regarding his experiences in Bangladesh and the reasons that he fears harm on return are factual or credible. Therefore the Tribunal is not satisfied that the applicant will be subject to significant harm from [Mr A], the Jamaat-e-Islami, or any Muslims, or the authorities in Bangladesh due to the claim of a dispute involving his father’s donated land.
The Tribunal accepts that the applicant is of the Buddhist religion and that he underwent surgery for correction of a [medical condition] in January 2019. However, it is not satisfied that due to these factors he will suffer significant harm. The Tribunal is not satisfied that the applicant will be targeted or prevented from worshipping his religion. The Tribunal is not satisfied that the applicant is in need of medical treatment that he will not be able to access or that if he comes to need to medical treatment in the future, he will be denied such treatment due to his religion or for any other reason personal to the applicant. The Tribunal is not satisfied that if the applicant returned to Bangladesh, he would face the death penalty, he would be arbitrarily deprived of his life, or that he would face torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment.
Although it is accepted that the applicant as a Buddhist is of a religious minority, and there is generalised violence in Bangladesh, for the reasons stated above it is not accepted that the applicant would be personally at risk of significant harm from Muslim extremists, members of Jamaat-e-Islami, the Chatra Shibir, any Muslims, the Bangladesh authorities, Rohingya refugees, terrorists, ISIS or the Taliban or anyone else. Nor is the Tribunal satisfied that protection will be withheld by the state by virtue of the applicant being a member of a religious minority.
The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm. He therefore does not satisfy s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
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.
…

[2022] AATA 957

15 February 2022

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Standing

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Natural Justice