1704152 (Refugee)
[2021] AATA 1529
•29 March 2021
1704152 (Refugee) [2021] AATA 1529 (29 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1704152
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Tania Flood
DATE:29 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 March 2021 at 1:32pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Barua Buddhist monk in Muslim-majority country – harassment, persecution and vandalism of temples – threats and attacks by extremist groups – inconsistent evidence – level of public profile in local area – residence in third country without applying for protection there – not living as monk in Australia – country information – constitutional status and rights – low risk of societal violence and general risk of sporadic attacks by Islamist militants – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 27 August 2015. The delegate refused to grant the visa as the delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Bangladesh on the basis of his Barua Buddhist religion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
DFAT Country Information Report, Bangladesh, 22 August 2019
Religion
Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people. Religious minorities reside throughout the country in small numbers.
The Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. The Constitution also commits the state to upholding secularism by not granting political status in favour of any religion, by prohibiting the abuse of religion for political purposes, and by prohibiting discrimination or persecution of persons protecting any religion. It provides for the right to profess, practise, or propagate all religions ‘subject to law, public order, and morality’, and states religious communities or denominations have the right to establish, maintain and manage their religious institutions. The Constitution stipulates that no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which they do not belong.
Buddhists
Buddhists are a small minority in Bangladesh, with most Buddhists being indigenous people living in the CHT. As discussed in Chittagong Hill Tracts (CHT) indigenous people, disputes between predominantly Muslim Bengali settlers and indigenous groups in the CHT from minority religions occur frequently, particularly over land ownership and usage with Muslim settlers. While some of these disputes may take on religious overtones, DFAT assesses that in most cases religion is a contributing factor rather than a causative one.
There have been occasional instances of societal violence elsewhere in Bangladesh that have targeted Buddhists based on religion. The most serious incident occurred in September 2012, when up to 25,000 Islamists burned several Buddhist temples and approximately 50 Buddhist houses in Cox’s Bazar during protests against a Facebook posting by a Buddhist man that showed a desecrated Koran (see Blasphemy/ Defamation of Religion and Atheists). DFAT understands an effective police response to the incident prevented further violence, and Buddhist leaders blamed the violence on outsiders rather than the local Muslim community. Separately, Islamist militants in the CHT killed one Buddhist monk in May 2016 during the wave of militant attacks against minorities.
The Buddhist community in Cox’s Bazar has expressed strong concerns that local anger against the persecution in Myanmar of the Muslim Rohingya population may lead to a violent backlash against local Buddhists. DFAT understands Bangladeshi authorities have deployed additional police in Buddhist areas in Cox’s Bazar to prevent a repeat of the Islamist protests that targeted Buddhists in 2012 (see People who identify as Rohingya (Rohingya). There have been anecdotal reports of harassment of some Buddhists in Dhaka and elsewhere in relation to the Rohingya issue.
DFAT assesses that Buddhists face a low risk of societal violence in the form of occasional localised incidents. These are likely to take place in the context of other events, such as communal disputes over land ownership and usage in the CHT. Like other minorities, Buddhists may face a risk of sporadic attacks from Islamist militants.
Barua Buddhists
The Barua are a large Buddhist group living in the Chittagong Hill Tracts (CHT). They speak Bengali and many do not identify as indigenous. The majority of Barua live among other Bangladeshis in Chittagong, but DFAT understands that a substantial Barua community still resides in the CHT. DFAT is not aware of any tensions in the CHT between Barua and other ethnic groups.
Security Situation
The security situation in Bangladesh is volatile and can deteriorate quickly. Security threats include politically motivated violence, particularly ahead of elections; terrorist attacks committed by Islamist extremist groups; criminal violence; and sporadic clashes in the CHT between indigenous groups and Bengali settlers over land ownership and usage (see Chittagong Hill Tracts (CHT) indigenous people). Authorities have expressed concern that the large-scale influx of Rohingya from Rakhine State, Myanmar (see People who identify as Rohingya (Rohingya)) into Bangladesh in 2017 may lead to additional security threats in the Cox’s Bazar district, including communal violence, people smuggling, drug and human trafficking, and possible radicalisation.
Successive Bangladeshi governments have faced the challenge of dealing with extremist Islamist groups, who may plan or execute violence against a wide range of government and civilian targets.
Authorities have taken a hard-line approach in responding to these attacks, which has included proscribing key militant groups and arresting hundreds of militants. Human rights groups have reported that security operations against militant groups have resulted in high numbers of extra-judicial killings (see Extra-Judicial Killings).
Between January 2013 and mid-2016, domestic militants (including some claiming allegiance with the Islamic State terrorist organisation) conducted a wave of militant attacks across the country that caused numerous fatalities. These attacks, most of which were small-scale in nature, targeted foreign nationals, religious and sexual minorities, and members of groups perceived to threaten conservative Islamist values, including activists, bloggers, and publishers (see relevant sections). The most serious attack was a hostage- taking incident at a restaurant in a wealthy area of Dhaka in July 2016 that resulted in the deaths of two police officers and 20 hostages, most of whom were foreigners (the ‘Holey Bakery attack’). Bangladeshi authorities conducted extensive counter-terrorism operations in response. DFAT understands that these operations, together with the government’s gradually improving coordination on counterterrorism, have reduced the capability of militant groups. While there have not been any subsequent attacks similar in scale to the Holey Bakery attack, the risk of further attacks cannot be discounted.
UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists, Version 2.0 October 2018
The Special Rapporteur cited the 2012 case in Ramu, Cox’s Bazar district when a number of historic Buddhist temples and houses owned by Buddhists were destroyed. In response to the attacks, the Special Rapporteur noted that:
‘… the Government reacted promptly and restored the destroyed temples, thus sending a much-needed message that such acts would not be tolerated. However, none of the perpetrators of the Ramu violence has been held accountable yet. According to the Government, the police have submitted charges in 18 cases and 11 trials have commenced. The Special Rapporteur notes the reported progress but urges for prompt justice to be delivered. (HRC, ‘Report of the Special Rapporteur’, (paragraph 50), 22 January 2016)
The 2016 report by Minority Rights Group International (MRGI) noted that: ‘Historically, sectarian clashes between Buddhists and the country’s majority Muslim population have been rare. However, Buddhists have long been subjected to discrimination, violence and displacement due to ongoing tensions over land and political participation, particularly in the Chittagong Hills…However, violence against the country’s indigenous communities is also widespread elsewhere… Since 2012, targeted attacks against Buddhists in Bangladesh have increased, with the alleged perpetrators ranging from members of the armed forces to locals, both members of the ruling AL party and Islamic parties. (MRGI, ‘Under threat’, (page 9), November 2016)
In what was cited as a ‘rare’ example of social harmony between different religious groups, Al Jazeera reported, in June 2016, on the hundreds of Muslim men, women and children who received iftar (the food with which Muslims break their fast during Ramadan) distributed by the Dharmarajika Buddhist monastery in Dhaka. The project commenced 6 years ago to help poor Muslims. (Al Jazeera, ‘Buddhist monks serve iftar for Muslims in Bangladesh’, 25 June 2016)
On 29 April 2018, Xinhua News reported on Buddha Purnima, the biggest religious festival observed by Buddhists and one of Bangladesh’s public holidays. The report noted that celebrations took place in Dhaka and across the country. (Xinhua News, ‘Buddhist community in Bangladesh celebrates Buddha Purnima’, 29 April 2018). Other notable Buddhist festivals have also taken place in Bangladesh, including Ashari Purnima (New Age Bangladesh, ‘Buddhists in Bangladesh celebrate Ashari Purnima’, 28 July 2018) and Probarona Purnima (Bdnews24, ‘Bangladeshi Buddhists protest Rohingya persecution’, 6 October 2017)
US Department of State, International Religious Freedom Report for 2019 – Bangladesh
The constitution designates Islam as the state religion but upholds the principle of secularism. It prohibits religious discrimination and provides for equality for all religions. On November 27, a Special Tribunal convicted and sentenced to death seven of eight defendants accused in the 2016 killings of 22 mostly non-Muslim individuals at the Holey Artisan Bakery in Dhaka, while the eighth was acquitted. Defense attorneys indicated they would appeal all verdicts. The government continued to provide guidance to imams throughout the country on the content of their sermons in its stated effort to prevent militancy and monitor mosques for “provocative” messaging. Members of religious minorities, including Hindus, Buddhists, and Christians, who were sometimes also members of ethnic minorities, stated the government remained ineffective in preventing forced evictions and land seizures stemming from land disputes. The government continued to place law enforcement personnel at religious sites, festivals, and events considered possible targets for violence.
Status of Societal Respect for Religious Freedom
The following paragraphs are of relevance to the situation for Buddhists during the reporting period.
In September according to press reports, unidentified individuals killed four members of a Buddhist family living in Cox’s Bazar. The victims included two children under the age of 10. The family lived in a predominantly Buddhist village in Cox’s Bazar, and the precise motive of the murder remained unclear at year’s end.
In August, according to multiple press reports, police found the body of Buddhist monk Amrita Nanda, Vice Principal of Gyanaratna Buddhist Monastery, under a railway bridge in Comilla, approximately 100 kilometers (62 miles) from Dhaka. According to media accounts, Nanda’s throat was slit, and Buddhist community members said he may have been killed and his body dumped from the train while returning to his hometown from Dhaka. Buddhists and human rights activists formed human chains and protest rallies throughout the country following Nanda’s death. At year’s end, however, no arrests were made.
In its Brief Yearly Report on the Minority Situation, the Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) said atrocities against minorities continued but slowed. Communal acts against religious minorities, including land grabbing, rapes, and arson, remained a “day to day affair” but BHBCUC did not provide specific numbers or give examples. In contrast with 2018, when BHBCUC documented 806 cases of religious persecution against minorities, the organization did not release any statistical data during the year.
Some Buddhists continued to say they feared local Muslims would commit acts of vengeance against them in reaction to Buddhist mistreatment of the Muslim Rohingya in Burma.
NGOs continued to report tensions in the CHT between the predominantly Muslim Bengali settlers and members of indigenous groups, primarily Buddhist, Hindu, and Christian, largely over land ownership. The government continued its efforts to resolve land ownership disputes affecting indigenous non-Muslims, using a 2017 amendment to the law providing for more inclusive decision making and a harmonization of the law with the 1997 Chittagong Hill Tracts Peace Accord. According to some members of the indigenous community, procedural issues had delayed resolution of many of their property disputes.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is a [age]-year-old citizen of Bangladesh. He was born in [Town 1] in Chittagong, Bangladesh. He resided at two separate addresses in Chittagong from 1988 to 2003. From 2003 to 2015, he resided predominantly outside of Bangladesh, in [Country 1], [Country 2], and Hong Kong. He returned to Bangladesh for four-month long trips in 2009 and 2014. His parents and his sister reside in Chittagong. He does not have family members in Australia. He completed primary and secondary school in Bangladesh, and his [high school qualification] at [an] institute in [Country 1]. He also completed a [Qualification 1] in Buddhist Studies in [Country 2], and a [Qualification 2] of Buddhist Studies in Hong Kong. He volunteered as a teacher at Buddhist school in 2014 and has no employment history in Bangladesh.
He arrived in Australia [in] June 2015 as the holder of a [Visitor visa]. He lodged an application for a protection visa on 27 August 2015. On 8 March 2017 a delegate of the Minister refused his protection visa application.
In a statement attached to his protection visa application forms, the applicant made the following claims:
He was born into a devout Buddhist family. His secular name was [Name 1]. In May 2000, he attended a ten-day meditation retreat at his local monastery and then completed a six-month program in Buddhist teachings. The monastery set up loudspeakers for the elders to hear the applicant’s chanting from his home. The chanting led to a growing interest in Buddhist teachings and an increasing number of people attending the monastery.
[In] January 2001, at the age of [age], he was ordained as a novice monk, and given the monastic name, ‘[the applicant]’.
He claims that he and his family had always been living in fear of being physically or verbally attacked and abused by local Muslim mobs. Many Muslim males in his village are ‘extremely violent and belligerent’. His family and his fellow Buddhist practitioners faced ongoing harassment and persecution on a daily basis. Their properties and temples were vandalised. His sister was harassed by young Muslim males. The males in his family were also forced to avoid the young Muslim males on the streets out of fear.
His father is a high-profile Buddhist advocate in their local community. He was the [officer bearer] of [Organisation 1] and a member of [Organisation 2]. His father was ‘proactively upholding [their] right for religious freedom’. He liaised with a range of social and religious groups to provide financial assistance to those in need, and organised peaceful and non-violent demonstrations against harassment and violence towards Buddhist people. His father’s public campaign and activities, including propagating Buddha Dharma through chanting, infuriated Shah Ahmed Shafi, the ringleader and founder of Islamic fundamentalist group Hafajat-e-Islam and his followers.
On [an evening in January] 2001, on their way back from the local market, the applicant and his father were attacked by two men. His father was stabbed in the head with a wooden stick and the applicant was blindfolded, pushed to the ground and kicked in the back and lower abdomen. They were taken to the hospital by some good Samaritans. The injuries were not grave and his father was hospitalised for three days.
After that incident, their house was pelted with stones at night, shattering the glass. The following day, members of the extremist group showed up at the house and proposed that if they converted to Islam, they will be ‘respected and protected’ and given compensation for his father’s injury and damage to the house. After his father refused the proposal, they threatened him not to report the incident to the police, to keep a low profile, and to stop the applicant from chanting through the loudspeakers, otherwise the ‘entire family would be at stake’.
In April 2003, while he was studying Buddhist teachings and tenets at a temple, he received a sponsorship by [Ven. A], a Professor from [University 1], to further his Buddhist studies in [Country 1]. He went to [Country 1] [in] July 2003.
After he completed his [high school certificate] studies at [a] Buddhist Institute in [Country 1], he travelled to [Country 2] [in] April 2006, where he attended [University 2]. From June 2009 to April 2013, he studied a [Qualification 1] in [Country 2], majoring in Buddhism.
In April 2014, he returned to Bangladesh from [Country 2], at the request of [Ven. B], from his village monastery. He taught English, tenets of Buddhism, and the Pali language to young students at the monastery.
[In] August 2014, while on his way back to the village monastery in his traditional monk robes, the applicant was attacked by a group of young males, who claimed to be members of ‘BNP Jamat-e-Islam group’. The mob told him to stop conducting his Buddhist ceremonies and propagating Buddhism to children. They threatened to kill him if he dared to continue his practice. He was deeply traumatised but was told by [Ven B] not to file a case to the police, as the temple and local Buddhist community would face retaliation from radicalised Islamic groups. The applicant departed Bangladesh [in] April 2014 and went to Hong Kong where he competed his [Qualification 2] in Buddhist Studies.
In January 2011, his sister was targeted by members of Hafajat-e-Islam who spread rumours that she had been in a relationship with a Muslim boy and converted to Islam. As his sister was distressed, their father sent her to a girls’ hostel and she has not returned to the village since then.
Since being in Australia, he observed that the Australian community is inclusive of people from different religious backgrounds, and he has not experienced harm while proselytising his faith. He started to read the New testament of the Bible and the Qu’ran to educate himself. He claims that what happened to his family and millions of Buddhists in Bangladesh is ‘commensurate with the teachings of Islam’.
He claims that he cannot avoid persecution by relocating within Bangladesh as the Muslim population makes up eighty-seven per cent of the nation’s population. Citing an article by Dr Lee Jay Walker, on the persecution of Buddhists in Bangladesh, the applicant claims that he satisfies the refugee criterion under the Refugee Convention.
Documents submitted to the Department
The applicant submitted the following documents to the Department in support of his protection visa application:
Copy of his birth certificate.
Copies of his academic qualifications and transcripts.
Copies of his previous passports.
Copy of an ordination certificate issued by [a] Buddhist Monastery [in] January 2001. The certificate indicates that the applicant was ordained at a [named] training Centre in Bangladesh.
A letter of support by [Mr C] and dated 20 December 2015. In the letter, he states that the applicant returned to Bangladesh in April 2014 at his request, to guide young students at a [named] Training School. The applicant came to the attention of Islamic extremist groups and was warned to stop proselytising. A couple of weeks later, the applicant was physically assaulted. He stated that he urged the applicant to leave Chittagong as soon as possible and to hide somewhere in Dhaka before leaving for Hong Kong.
Copies of a news article published by The Daily Star on 1 October 2012. The article reports that twelve temples in different regions of Bangladesh were vandalised, and fifty houses were smashed in premediated attacks by Islamic Extremist groups.
Two reports on crimes against Bangladeshi Buddhist communities, published in 2012 by ‘Parban’, described as ‘a popular Bangladeshi social artistic and cultural magazine.’
Copies of four labelled photographs, claimed to feature the applicant and his fellow Buddhist monks during a protest in front of the UN office in [Country 2], calling for the UN’s support and intervention to prevent Buddhist culture and heritage in Bangladesh form being ruined.
Two news articles published in 2013 by The Indian Express and The Guardian, indicating that the Islamic Extremist group, Hafajat-e-Islam led by Shah Ahmed Shafi, is responsible for a spate of street violence in Bangladesh.
Submissions to the Tribunal
On 27 January 2021, the applicant submitted the following documents to the Tribunal:
A letter of support by [Venerable D], the [office bearer] of [Organisation 3], dated 3 January 2021, stating that the applicant has been an active member of the organisation since his arrival in 2015. He stated that the applicant requested to be a fully ordained monk and live in the temple, however, he told the applicant that the community in Sydney is small and they cannot support two members in the temple.
A letter of support by [Mr E], [office bearer] of the [Organisation 3], dated 10 January 2021. The letter states that the applicant has been regularly attending all community and Buddhist religious activities since 2015.
Copies of seven labelled photographs, featuring the applicant’s Buddhist activities in Australia, including attendance at [a specified ceremony], chanting and meditation, and visits to the temple and Buddhist Nunnery.
A document with links to online news articles on attacks against Buddhists in Bangladesh, dated between March 2013 and November 2020.
Copies of labelled photographs of the applicant’s mother’s injuries following an assault by local Muslim mobs on 16 January 2019. The applicant stated that five men entered his family’s home through the front door. They held his father while his mother was beaten on the ground. The men left after three to four minutes. He stated that his parents were not seriously injured, however his mother suffered from swelling and cuts on her face and knee.
Copy of his mother’s national ID card issued by the Government of the People’s Republic of Bangladesh.
Untranslated video clips showing attacks on Buddhist temples and the persecution against religious minorities in Bangladesh.
Copy of a transcript of a video featuring Buddhist monk, [Venerable F] attesting to the claimed persecution faced by religious minorities including Hindus, Christians and Buddhists in Bangladesh.
Copy of a petition signed by Buddhists from [a] village in Chittagong District, Bangladesh in 2015. The petition states that Buddhist communities have been victimised and threatened by the majority Muslim population, especially members from Hafajote Islam and the Bangladesh National Party (BNP).
Two letters signed by [Mr G], secretary of [Organisation 1], dated 2 and 5 October 2015. The letters state that the applicant’s father, [Mr H], has been working for a long time as a religious secretary in the management committee, and is an adviser at [Village 1] Buddha youth organisation. He is also a regular worshipper and plays a significant role in religious and social activities.
On 2 February 2021 the applicant’s representative provided information about Shah Ahmed Shafi, the present head of an allegedly fundamentalist Islamist group Hefajat-e-Islam and present rector of Al-Jamiatul Ahlia Darul Ulum Moinul Islam Hathazari. The information indicates Shah Ahmed Shafi is now deceased.
Tribunal hearing
The applicant appeared before the Tribunal to give evidence in support of his case. The Tribunal discussed with the applicant his background in Bangladesh and abroad, his past experiences as a Buddhist in Bangladesh, his current religious aspirations and his reasons for fearing returning to Bangladesh. His testimony and responses to issues put to him by the Tribunal are summarised as follows:
The applicant stated that he is a Barua Buddhist from [Town 1] in Chittagong. He confirmed that [Town 1] is outside of the Chittagong Hill Tract region. He said that his parents remain living in [Town 1] but his sister has married and is now living elsewhere in Chittagong.
The applicant stated that his parents are now retired. He said his father formerly worked as [an Occupation 1]. He said they have some farming land which they use to grow produce for their own use and to generate a small income.
The applicant stated that he lived in [Country 1] from 2003 to 2009 from [age] where he completed his high school education at a Buddhist institution. He said that he then moved to [Country 2] where he lived as a monk and studied Buddhism at University until 2014. He said that he also lived from 2014 to 2015 in Hong Kong where he completed his [Qualification 2] in Buddhist studies. He said that he secured a scholarship to do so.
The applicant stated that between 2003 and 2014, when he was living abroad, he returned to Bangladesh 3 times – in 2009, 2013 and 2014. He said that in 2009 he remained in Bangladesh for two months; in 2013 for less than a month and for about four to five months in 2014. He said he has not returned to Bangladesh since 2014.
The applicant stated that in 2014 he was living in [a named] Police station area in a monk training centre. He said it is about 30kms from his home village. He said he returned to Bangladesh at the invitation of his spiritual leader to help guide the new generation of young Buddhists. He said he offered his services voluntarily and taught English and the basics of Buddhism.
The applicant stated that he was ordained as a novice monk in 2001 but is not presently living as a monk. He said that to be a monk he has to live a monastic life and he hasn’t been able to find a temple to accommodate him in Australia. He said that since childhood he has been interested in meditation and the Buddhist philosophy and he is committed to improving his spirituality. He said his family are traditional Buddhists and they have always encouraged him to follow the religion. He said that a local monk encouraged him from a young age to attend the local training centre and he had a good spiritual guide there. He said that from there he was sent to [Country 1] and from there his religious journey has continued.
The applicant stated that if he returns to Bangladesh he will endeavour to lead a monastic life again. When asked if being a monk would put him at greater risk of harm in Bangladesh he said that as a monk he would be wearing the orange robes and would be distinguished from other Buddhists. He said that monks are more vulnerable to attracting attention from Muslims.
The Tribunal acknowledged a few reports of attacks on Buddhist monks in Bangladesh but put it to the applicant that it does not appear from the country information that all monks are persecuted in Bangladesh. The applicant responded that monks face daily problems. He said they are humiliated and abused in public.
When asked whom he fears harm from in Bangladesh the applicant stated that he fears the members of the Muslim community as well as Islamic fundamentalist groups. The applicant referred to Shah Ahmad Shafi whom he said [is] the ringleader of an extremist group. He confirmed that Shah Ahmad Shafi is now deceased but he said there would be a successor to him. The Tribunal put it to the applicant that a successor may not share the same history that Shah Ahmad Shafi had with his family and he agreed that could be possible. He said however that the successor would get to know about his family.
The Tribunal asked the applicant about any past harm he had experienced in Bangladesh on account of his religion. He said that in 2001 he and his father were attacked because his father was working for the rights of Buddhists and actively opposing extremist groups. He said that on the day of the attack they were coming home from the market and his father was stabbed in the back of the head. He said that he was blindfolded and beaten but when he screamed for help people came to assist and the culprits ran away. He said his father was taken to the hospital.
The Tribunal asked the applicant what his father did following the attack and he said that after he was discharged from hospital people came to threaten them against filing a report with the police. He said that his father was frightened and kept quiet. The Tribunal put it to the applicant that his evidence about his father’s active involvement in pursuing the rights of Buddhists and opposing extremism doesn’t appear to accord with his actions after the attack. The applicant replied that his father was afraid for his children.
The applicant was asked whether he or his family encountered any other incidences of harm between 2001 and 2014 and he said there was no other serious attack although they experienced ongoing harassment. He said stones were thrown at their house. He said that it was not just them but other Buddhists as well who experienced such problems.
The applicant was asked about the claimed attack he experienced in 2014. He said that [in] August 2014 he was returning to the temple from the city when two men pulled him aside and beat him black and blue and threatened him. He said his attackers told him that non-believers of Islam should be eradicated and that he should convert to Islam. He said that after the attack he felt scared and frightened and he went to the temple to talk to his teacher. He said his teacher advised him to stay inside the temple and not to go out again. He said he thought it would be best to leave the country and he went to Dhaka 3 days later [in] August 2014. He said he went to stay at the house of a monk he knew.
The Tribunal asked the applicant how he was able to arrange to depart Bangladesh to Hong Kong so quickly after the attack. He said that the reason he was returning to the temple from the city was because he had gone there to get documents to apply to go to Hong Kong. He said that he had commenced those plans even before he departed [Country 2]. He said that in order to take up the [Qualification 2] programme in Hong Kong he needed to secure a scholarship and that was only approved about two weeks before he departed Bangladesh.
The Tribunal put it to the applicant that a letter of support provided by [Mr B] and dated 20 December 2015 states that he was advised to go and hide in Dhaka but that the delegates decision, which is before the Tribunal for the purpose of the review, indicates that he said he remained in the temple until he departed Bangladesh. The applicant responded that his teacher told him to stay in the temple until his ticket to Dhaka was organised and then he left for Dhaka. When asked why he failed to mention the stay in Dhaka before he said he didn’t notice the earlier omission.
The Tribunal asked the applicant about his claims in respect of his sister’s treatment by Muslims. He said that some Muslim boys spread a rumour that she had an affair with a Muslim and converted to Islam. He said his parents were worried and his father sent her to a girl’s hostel college to live and study. He said she remained there for two years and then went to Chittagong where she enrolled in University.
The Tribunal put it to the applicant that despite the claimed history of persecution of his family it is significant that they have chosen to remain living in the area particularly as his father is claimed to be a high-profile Buddhist. The applicant responded that his family did not have the financial means to move anywhere else.
The Tribunal asked the applicant whether his local Buddhist temple was ever attacked. He said that to his knowledge it had not been. He said however that it is possible the monk has faced some problems. He recalled an incident from his childhood when the monk objected to a local boy coming to the temple to shoot pigeons. He said that the monk had a gun pointed at his chest. He said that there could have been other incidents like that.
The Tribunal put it to the applicant that the photographic evidence in respect of his injured mother does not assist in determining the cause of her injuries. The applicant stated that in 2019 a few men entered his parents house in the early morning while his father was in the bedroom. He said they dragged his mother to the ground and beat her. He said when his father came running they just restrained him and he was not injured. He said the attackers said nothing to his parents and left after his mother’s screams alerted the neighbours. When asked what might have provoked such an attack, particularly on a woman, he said that these things happen a lot to Buddhists and Hindus.
When asked if he has any medical evidence to support the claimed attack on his mother he said he doesn’t have anything but his mother might. He said he doesn’t think his family reported the matter to the police and again the Tribunal expressed it surprise about this. The applicant responded that it is likely his father took some other steps to inform the local MPs about it.
The Tribunal discussed with the applicant the links provided to country information and news reports and observed that many of the incidents described occurred several years ago. The Tribunal enquired about the video clip which shows an altercation between the police and a group of monks. The applicant stated that the incident occurred in July 2020 in an area next to his village. He said the monk and the local Buddhists were trying to build a new structure and the local MPs younger brother and other villagers went there to stop it claiming that the land belonged to the government. He said that in the video the monk is asking the police for documentation to say that the building should be demolished. He said that to his knowledge the monk is no longer safe and moves around from place to place and the matter has not been resolved.
The Tribunal put it to the applicant that his description of the events depicted in the video seems to accord with country information which indicates that it is not always clear whether religion or some other issue such as a land dispute, is behind tensions between Buddhists and Muslims. The applicant responded that it is about degradation of the Buddhist religion.
The Tribunal discussed a summary of the abovementioned country information regarding the situation for Buddhists in Bangladesh with the applicant and indicated that it might not be satisfied that there is a real chance that he would suffer serious harm in Bangladesh on account of his religion. The applicant agreed that the current government has taken some initiatives to support minority groups including assisting to rebuild destroyed or damaged temples. However, he said that the articles he has submitted show that the government hasn’t yet taken action against the perpetrators of the 2012 attacks on Buddhists. He said that on paper it looks like the government is looking after their safety but in reality they have limited resources to do so. He added that at the end of the day the police and the army are Muslims themselves and will always support Muslims. He said that as a monk he will live in fear in Bangladesh. He said that when he goes out in his robes he will receive bad looks and will be forced to cross the street to avoid others and potential problems.
The Tribunal also discussed with the applicant DFAT’s assessment of the situation for Barua Buddhists in Chittagong, including that they do not face social discrimination and violence. The Tribunal put it to the applicant that this information doesn’t seem to accord with the day to day mistreatment he claims occurs. The applicant responded that they only share a language but are not Muslims. He said they are more subject to harassment and physical attack because they live among Muslims whereas the CHT Buddhists live more homogenously. He said that daily problems do not get recorded in the news.
100. The Tribunal put it to the applicant that there is a Buddhist community in Dhaka and that country information indicates this community interacts well with the Muslim community around significant Muslim religious events. The Tribunal suggested that relocation to Dhaka might be a reasonable option in the circumstances if he believes there is a risk of harm to him locally. The applicant agreed there is a small Buddhist community in Dhaka but said he would be more vulnerable to attack there. He said it would not be reasonable to expect him to move to an area which is more heavily dominated by Islamic groups. He said he would feel more scared in Dhaka than in Chittagong.
101. When asked about his religious activities and his involvement in any proselytizing he said that he tries to convince people that Buddhist meditation is good and demonstrates how it is done. He referred to it as a friendly exchange between interested parties. He added that proselytizing is not a religious requirement and that the main aim of Buddhists is to focus on oneself to achieve enlightenment. He said he would not go out to the streets to publicly preach about Buddhism.
102. As to any claimed discrimination he might face, the applicant said that monks are teased about their dress and monastic lifestyle. When the Tribunal indicated that such treatment might not reach the threshold required for a finding of serious or significant harm the applicant said that if he spoke out against such treatment it could turn violent. He said the other alternative is to remain silent and live in fear.
103. The Tribunal asked the applicant why he did not apply for protection upon arrival in Hong Kong. He said that he wasn’t 100% certain he would safe in Hong Kong. He said he feared he might be reported to the Bangladesh authorities. The Tribunal asked him why that would have been a problem and he said that the Awami League government doesn’t have enough resources to protect Buddhists. When asked what steps he took to inform himself of the possibility of seeking protection in Hong Kong he said he did a search on the internet. He said however, that he had some fears about the Chinese communist government.
104. The applicant’s representative reiterated many of the submissions made by the applicant. He said the evidence shows that monks are more vulnerable to physical attacks and that persecution of Buddhists is not localised. Indeed, he said that the Buddhists in Chittagong have more mutual support than those elsewhere. He submitted that an IRF report from 2014 clearly shows that the authorities have been slow to act to protect Buddhists. The representative undertook to provide a translated copy of the video clip showing the harassment of the monk in 2020 in the applicant’s local area.
Post-hearing submissions
105. On 16 February 2021 the Tribunal received a further submission on behalf of the applicant. The submission refers to various news reports which it is claimed substantiate the applicant’s fears of returning to Bangladesh. In particular the submission references reports on the 2016 Islamic terror attack on a Dhaka café in which 20 people were killed; the killing of an elderly Buddhist monk on 14 May 2016; a death threat made against a monk in Dhaka in 2016; the killing of a further Buddhist monk in Dhaka in 2019 and the aforementioned incident in [Area] where a temple structure was demolished in 2020 causing the head monk to flee the area.
106. Attached to the submission were the following additional documents:
- An additional statutory declaration by the applicant.
- A news article titled ‘Bangladesh, death threats for three more Hindu priests’ 19 July 2016.
- A news article titled ‘Elderly Buddhist monk hacked to death in Bangladesh: Police’ 14 May 2016.
- A news article titled ‘Head Monk of Charitable Bangladeshi Monastery Receives Death Threats’ 30 June 2016.
- A news article titled ‘Bangladesh and killing Buddhist monks and the followers of Hinduism’ 4 October 2019.
- A news article titled ‘[Title]’ undated but which refers to an incident [in] July 2020.
- Discharge Certificate, Chittagong Diabetic General Hospital regarding the admission of the applicant’s mother with a diagnosis of cramping pain, general weakness and headache and cuts and bruises and knee pain.
- Translation of video clip depicting events between Buddhists and the police in Rangunia in July 2020.
107. In his statutory declaration the applicant the applicant provides additional information regarding his failure to seek asylum in Hong Kong. He states that he feared the Hong Kong Special Administration Government under the control of the Chinese Communist Party may inform the Bangladeshi authorities and have him sent back. The applicant states that the People’s Republic of China became a state party to the Refugee Convention however it has not prioritized refugee protection and more often than not, it failed to demonstrate a consistent readiness to honour the provisions and spirit of the Convention. He states that on countless occasions it has overtly violated these provisions. The applicant states that he learned back then that thousands of North Koreans who escaped to China to avoid oppression were captured and returned to their homeland under the guise that they were economic refugees. The applicant states that not long after he arrived in Hong Kong the Standing Committee of the National People’s Congress issued a decision regarding proposed reforms to the Hong Kong electoral system. He states that the decision was virtually the CCP’s pre-screening of the candidates for the Chief Executive of Hong Kong which was a direct violation of the Joint Declaration between China and British in 1982 and triggered the Yellow Umbrella Movement. The applicant states that he was deeply troubled and concerned that Hong Kong would soon be completely taken over by the CCP and the Hong Kong authorities may send all asylum seekers back to their country of origin. Furthermore, he claims that it was explained to him that he could not lodge a valid application for refugee status as he needed to wait until his study visa expired before doing so. He said that before his study visa expired he was granted a tourist visa and came to Australia. He attached an extract from an article by an organisation called Branches of Hope which reads: “Claimants need to enter Hong Kong as a tourist and overstay their visa. They surrender their status and then file a written signification stating reasons why they cannot return to their home country”.
108. On 24 March 2021 the applicant submitted a news article dated 22 March 2021 which reports on a protest held in Dhaka against anti-Hindu violence. The article states that Christians, Buddhists and Hindus rallied together to protest against an attack by Muslim radicals against the Hindu community in Sunamganj District in which a temple was desecrated. The report notes that following the incident the police arrested a local official.
FINDINGS AND REASONS
Country of reference
109. Based on the available information and in the absence of any other information to the contrary the Tribunal accepts the applicant is a national of Bangladesh.
Claimed past harm
110. The applicant claims that his family came to the attention of a prominent Muslim, Shah Ahmed Shafi, because of his father’s activism supporting the rights of Buddhists in the local area and because of his own public chanting. He claims this led to the attack on his father and himself in 2001 in which his father suffered an injury and after which their house was pelted with stones and they were warned to stop their activities and refrain from reporting the matter to the police. The Tribunal notes the applicant has provided a consistent account throughout of these events in his written and oral evidence to the Department and the Tribunal. The Tribunal is prepared to accept these events occurred twenty years ago.
111. The applicant also claims that his sister was the victim of false rumours spread by local Muslim boys which caused his father to send her away to complete her studies in another area. The Tribunal is prepared to accept this event might also have occurred but notes that there is no suggestion his sister was seriously harmed as a result of this incident.
112. The applicant claims that he was physically attacked and threatened in 2014 when returning to his temple after a visit to the city. For the reasons which follow the Tribunal does not accept this attack occurred.
113. The Tribunal discussed with the applicant during the hearing the fact that the supporting evidence he provided in respect of this claim does not appear to be in keeping with the evidence he gave to the delegate and which is outlined in the decision record. Relevantly, the Tribunal notes that the applicant informed the delegate that he stayed inside the temple in his local area until he departed Bangladesh for Hong Kong whereas the letter from the [Training and Meditation Centre] states that the applicant was immediately advised to go and hide in Dhaka after the attack. During the hearing the applicant gave an amended account of what transpired after the attack stating that his teacher advised him to stay in the temple until such time as he made arrangements to go to Dhaka whereupon he stayed with a fellow monk until he departed Bangladesh. Notwithstanding this account, the Tribunal notes that the applicant has never previously claimed to have spent any time in hiding in Dhaka before departing Bangladesh. When asked during the hearing why he failed to mention this relevant fact in either his written or earlier oral evidence he merely said he didn’t notice the earlier omission. The Tribunal did not find his response persuasive and considers it does not adequately account for the late introduction of this relevant information. The Tribunal has taken account of the applicant’s expanded account of events during the hearing but is of the view it was provided in an attempt to rectify the apparent inconsistency between his oral evidence and the supporting documentation which was first brought to his attention by the delegate.
114. Furthermore, the applicant’s testimony is that very soon after the claimed attack in 2014 he departed Bangladesh for Hong Kong to take up a scholarship to complete a [Qualification 2]. As discussed with the applicant during the hearing the Tribunal is concerned that he did not seek asylum on arrival in Hong Kong given his account of the daily fear he felt in Bangladesh and especially after being subjected to a violent physical attack. During the hearing the applicant claimed that he was not sure if he would be safe in Hong Kong and that he feared the Hong Kong government might inform the Bangladesh authorities about his application. The applicant has never claimed to fear the Bangladesh authorities and the Tribunal put it to him during the hearing that this did not appear to be a reason for failing to apply for asylum. He then maintained that he held some fears about the Chinese Communist Party.
115. After the hearing the applicant provided a statutory declaration which is summarised above and which expands on his reasons for not seeking asylum in Hong Kong. The Tribunal has considered the statement but notes that when given the opportunity to address this concern during the hearing the applicant’s response was relatively brief and lacked much of the detail provided in his latest submission. As can be seen from his background the applicant is a well-educated person and the Tribunal is of the view that following the discussion in the hearing he was well aware the concern about his failure to seek asylum in Hong Kong was going to be a significant consideration in determining the review. During the hearing the applicant did not refer to the finer points outlined in his statutory declaration or refer to the Refugee Convention or political developments between Hong Kong and China. Nor did he mention the enquiries which resulted in him being advised that he would need to wait until his study visa ceased in order to seek asylum. The Tribunal has concluded that the applicant’s post-hearing declaration is a carefully constructed reply drawn from further research in a bid to overcome the difficulty presented by his failure to seek asylum in Hong Kong.
116. The Tribunal has considered all the available evidence but remains concerned that the applicant did not seek asylum in Hong Kong. The Tribunal is prepared to accept he may have had some reservations about Hong Kong’s adherence to its obligations under the Refugee Convention but the Tribunal has weighed this against his claims that he would suffer persecution on a daily basis in Bangladesh and had recently experienced a violent physical attack in the days preceding his arrival in Hong Kong. In light of this and as it appears to the Tribunal that he made only a cursory attempt to inform himself of his rights to seek asylum in Hong Kong the Tribunal considers his actions raise serious doubts about his fears of returning to Bangladesh and about the claimed attack in 2014. The Tribunal notes that apart from a few months in 2014 the applicant has effectively lived abroad since 2003 which would be a relevant consideration in assessing any past harm and determining whether he has a profile in Bangladesh which is likely to cause him to suffer serious harm if he returns home. Based on the available evidence the Tribunal is not prepared to accept the claimed attack in 2014 occurred and considers this aspect of his evidence has been fabricated to support his claim that he fears returning to Bangladesh.
117. The applicant has since introduced a new claim that his parent’s home was forcibly entered by assailants in 2019 and that his mother was physically beaten. When questioned about the incident during the hearing the applicant claimed the attackers said nothing to his parents and he said his parents did not report the matter to the police. The Tribunal finds is strange that a group of assailants would enter the house of the applicant’s parents and physically attack a woman, and not the man in the house, without saying a word and that his father would not have reported the matter to the police. When this was raised with the applicant during the hearing he merely mused that it is possible his father had since discussed it with local MPs. The Tribunal has taken into account the applicant’s claim that his father refrained from reporting the 2001 attack to the police out of fear of reprisals. That said, the Tribunal finds the failure to report a physical attack on his wife to be significantly at odds with the applicant’s claim that his father is an outspoken advocate and activist for the protection of the rights of Buddhists.
118. After the hearing the applicant provided a copy of a hospital discharge certificate which indicates his mother presented at the hospital for treatment for cramping pain, general weakness and headache, cuts and bruises and knee pain. The information provides no assistance in determining the cause of any injuries sustained by his mother.
119. Having carefully considered the claimed circumstances, the applicant’s responses and the information provided post-hearing, the Tribunal accepts that his mother suffered some physical injuries in 2019. However, the Tribunal is not satisfied that the injuries are the result of the physical attack claimed to have occurred in 2019.
Fear of future harm from the Muslim community and Islamic extremist groups
Father’s profile
120. Given the applicant has spent very little time in Bangladesh since 2003 and as the claimed harm in 2014 is rejected, the Tribunal considers the applicant has no prominence in his local area himself. The Tribunal has considered whether there is a possibility that the applicant might be harmed on return to Bangladesh due to his father’s profile in the community.
121. While the Tribunal accepts the claimed events in 2001 occurred and that the applicant’s sister might have been the subject of some false rumours many years ago there is no other convincing evidence before the Tribunal to support that his family have suffered serious harm in the twenty years that have followed and/or that they are living in constant fear of harm from the Muslim community or Islamic extremist groups on account of their religion or because his father is a high profile Buddhist. As noted above the Tribunal does not accept the applicant’s mother was physically attacked in 2019 for the reasons claimed and the Tribunal finds it significant that according to the applicant his family have never considered relocating in order to avoid the harm which is claimed. Furthermore, the Tribunal notes that the available evidence indicates that Shah Ahmed Shafi who it is claimed took particular offence to the applicant’s father’s activities is now deceased. The Tribunal notes the applicant’s testimony that another successor will follow him as the leader of that extremist grouping but as discussed with him at hearing that person might not have the same history with his family. The applicant also claimed at hearing that his family do not have the financial means to relocate. The Tribunal has considered this response but notes that he informed the Tribunal that he is working in Australia and is providing his family with financial support. Having considered the circumstances, the Tribunal is of the view that if the situation is as difficult as the applicant claims his family might surely have attempted an alternative arrangement to remaining in an area where his father’s profile attracts adverse attention. That the applicant’s family have remained living in the same area, despite his father’s claimed profile, causes the Tribunal to believe that what occurred in 2001 was an isolated incident. Based on the available evidence the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm on return to Bangladesh for reason of the fact his father is a well-known and active champion of issues affecting the local Buddhist community.
Buddhist religion and desire to live as a Buddhist monk
122. The Tribunal accepts the applicant is a devout Buddhist and active member of the Bangladesh Buddhist community in Sydney and regularly attends Buddhist community and religious activities. In light of the applicant’s background, which the Tribunal accepts includes many years devoted to the study of Buddhism, the Tribunal accepts that he may seek to live a monastic life as a Buddhist monk if he returns to Bangladesh. Despite the references to proselytizing in his written claims the Tribunal is not satisfied that this forms a part of his religious observance or that he would engage in such activity if he returns to Bangladesh. The Tribunal accepts the applicant’s testimony that he has an interest in demonstrating Buddhist meditation techniques to interested parties but that he has no obligation or interest in proselytizing as the religion promotes focus on achieving one’s own spiritual enlightenment. That said, the Tribunal accepts that the applicant might be more visible than an ordinary Buddhist in Bangladesh because as a monk it is likely that his head would be shaved and he would be dressed in Buddhist robes.
123. During the hearing the applicant stated that monks are humiliated in public and teased about their dress and monastic lifestyle. The Tribunal accepts that such mistreatment might occur on occasion but as discussed with the applicant during the hearing the Tribunal is not satisfied that such discriminatory treatment would amount to serious or significant harm. In his response the applicant stated that if he spoke out about such mistreatment he might become the victim of physical violence. The Tribunal notes that the above country information suggests that incidents of the type described by the applicant would likely be uncommon. There is also nothing about the applicant’s background which causes the Tribunal to think he would easily be provoked into speaking out about such infrequent behaviour. The Tribunal finds there is only a remote chance that the applicant would be provoked to do so and finds that there is not a real chance he would face serious or significant harm for this reason.
124. In considering whether the applicant will face serious harm in Bangladesh on account of his religious practices and his desire to live as a Buddhist monk, the Tribunal has had regard to the country information outlined above and to the news reports provided by the applicant and referenced in submissions. The Tribunal notes that a large number of the documents provided in submissions (including video clips) refer to the attacks which occurred on the Buddhist community in Cox’s Bazar in 2012. The Tribunal has only been able to locate two reports relating to the killing of monks – one in 2016 and another in 2019 although it acknowledges the reports of a death threat made against a monk in Dhaka and reports of attacks on other religious minority groups and their leaders.
125. The Tribunal has paid particular attention to the information provided in respect of the claimed tensions which arose between the Buddhist community and local Muslims in [Area] in 2020 due to its close proximity to the applicant’s village. The Tribunal is prepared to accept, based on the information submitted, that some community tensions continue over this matter and that the head monk has since left the area. The Tribunal has reviewed the transcript of the video clip provided as evidence of this event in the applicant’s local area. It is evident from the video and the transcript that a verbal altercation occurred between one of the monks and a government official over land usage. However, the material does not indicate that any physical violence occurred during the altercation and nor do any of the news reports suggest that any physical violence followed afterwards. However, it is acknowledged that news reports indicate the head monk has now also had accusations brought against him for spreading defamatory information about Awami League leaders and for destroying communal harmony. Furthermore, one of the news articles provided in respect of this incident indicates that around 50 monks remain living in the Monastery, albeit reportedly with some reservations about their safety.
126. Notwithstanding the above, the available country information indicates that while the constitution of Bangladesh designates Islam as the official religion it also commits the state to upholding secularism, guarantees equal status and rights to minority religions including Buddhism, prohibits discrimination and persecution on the basis of religion, and provides the right to practice all religions. Irrespective of the reported events referred to in submissions and country information reports, the Tribunal’s reading of all the information before it is that while 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 daily basis.
127. The Tribunal accepts that that there have been attacks in Bangladesh against Buddhist temples and property and sometimes on Buddhists themselves. The Tribunal accepts on the available information that at least two Buddhist monks have been killed in recent years. The Tribunal also accepts that Buddhists have been victims of illegal land appropriation for reasons which included their religion. However, the information does not indicate that the instances of harm and violence against ordinary Buddhists or even Buddhist monks occur with such frequency or are so extensive that they give rise to a real chance of serious harm, particularly in areas outside the CHT region. The Tribunal also accepts that the country has recorded incidents of terrorist attacks committed by Islamist extremists, including against religious minority groups. While some sources report an increase in targeted attacks on religious minorities since 2012 the Tribunal notes DFAT’s most recent report indicates that these types of attacks were most notable between January 2013 and mid-2016. Indeed, the bulk of the country information referenced by the applicant in submissions refers to incidents which occurred around this time period. Furthermore, while accepting the applicant’s claim that the perpetrators of the 2012 violence against Buddhists have yet to be prosecuted, the country information nevertheless indicates that the government does not condone religious based societal violence and when required to it has conducted extensive operations against perpetrators of such violence which has significantly reduced the capability of such groups.
128. Despite the localised event which occurred near to the applicant’s local area in [Area] in 2020, and some ongoing isolated reporting of attacks against religious minorities, the Tribunal remains of the view, after careful consideration, that the bulk of the available country information does not indicate that currently, instances of violence and other harmful acts against Buddhists and/or Buddhist monks, particularly those that would amount to serious harm, occur with such frequency in Bangladesh as to give rise to a real chance that the applicant would suffer serious harm if he returns to Bangladesh and resumes his Buddhist religious observance or becomes a monk.
Discrimination on grounds of Barua ethnicity
129. The applicant testified in the hearing that he is a Barua from Chittagong. When asked during the hearing about any past discrimination he has experienced in Bangladesh he referred to the taunts and teasing he encountered when dressed in his Buddhist attire. As noted above the Tribunal does not consider such treatment would amount to serious or significant harm.
130. The applicant did not specifically claim to have been discriminated against on the basis of his ethnicity. For completeness however, the Tribunal put it to the applicant during the hearing that there is country information which suggests that the Barua speak Bengali and live quite comfortably among other Bangladeshi’s in Chittagong. He agreed that the Barua community speak Bengali but he said that is the only similarity between them and the Muslim community. He also said that daily problems do not get reported in the media.
131. The Tribunal has considered the applicant’s responses but has also had regard to DFAT’s most recent country information report which assesses that most Barua, particularly those not living in the CHT region, do not face social discrimination and violence based on their ethnicity. Indeed, the Tribunal notes the applicant’s testimony that his father was gainfully employed before he retired and his sister was able to access a University education. The Tribunal considers the applicant’s family background in Bangladesh also does not support that Barua encounter widespread discrimination in their daily life, especially those living in Chittagong. The Tribunal is not satisfied that the applicant will suffer discrimination which would amount to serious or significant harm on return to Bangladesh for reason of his Barua ethnicity.
132. Having regard to the applicant’s claims and the above findings, both individually and cumulatively, the Tribunal finds there is not a real chance the applicant will be subjected to serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion if he returns to his local area in Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds the applicant does not have a well-founded fear of persecution in Bangladesh and accordingly he is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
133. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal has also concluded that there is not a real risk that the applicant will be arbitrarily deprived of his life, or that he will be subjected to the death penalty, or tortured on return to Bangladesh on account of his religion and/or ethnicity. While the Tribunal accepts he might encounter some low level discriminatory treatment on account of his Buddhist religious practices, including being a monk, the Tribunal is not satisfied that this would reach the threshold for finding he would be subjected to cruel or inhumane or degrading treatment or punishment. The Tribunal thus finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
134. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
135. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
MemberATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
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Immigration
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Statutory Interpretation
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Legal Concepts
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