1704488 (Refugee)

1704488 (Refugee) [2019] AATA 3756 (11 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704488
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Paul Windsor
DATE:11 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 11 February 2019 at 11:54am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Shia Muslim convert – particular social group – divorced women – single mothers – threats from ex-husband and his family – credibility issues – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, [the first named applicant] and her son [the second named applicant], applied for the visas on 9 December 2014. A summary of relevant applicable law is at Attachment A.
In her Protection visa application [the first applicant] claims to be a citizen of Bangladesh who was born in Rajbari Bangladesh on [date]. She stated that she belongs to the Bengali ethnic group, is a Shia Muslim, and speaks, reads and writes Bengali. She indicated that she was married [in] September 1998 and separated [in] December 2013, and has a son ([the second applicant] - born [date]) to that relationship. She indicates that she departed Bangladesh legally [in] September 2014 via Dhaka airport and arrived in Australia [in] September 2014.[1]
[1] See folios 8-35 of the Departmental file.
[The second applicant], who has applied as a member of the same family unit as his mother who does not have his owns claims for protection, claims to be a citizen of Bangladesh who was born in Dhaka Bangladesh on [date], is a Muslim and speaks, reads and writes Bengali. He travelled to Australia with his mother [in] September 2014.[2]
[2] See folios 36-42 of the Departmental file.
[The first applicant] claimed to fear harm in Bangladesh from her ex-husband and his family and from the Sunni Muslim community because of her Shia Muslim religion and because she is a divorced woman and a single mother.
The delegate refused to grant the visas on 23 February 2017. The delegate found that [the first applicant]’s claim to have converted from Sunni to Shia Islam was not credible. In any event, the delegate found that, as [the first applicant] does not openly practise her faith, she would not have a profile that would cause her to be targeted for harm in Bangladesh. Noting that [the first applicant] had not been harmed over the period from when she separated from her husband until she left Bangladesh, the delegate did not accept her husband has an intention to harm her. Considering that [the first applicant] has a very good relationship with her family, the delegate found that she is not absent a ‘male protector’ and noting her education and past employment considered that she would be significantly less vulnerable to gender-based harm compared with poorer, less-educated divorced or single women, and would not face a real chance of serious harm due to her being a member of the particular social group comprising ‘divorced women in Bangladesh’. For the same reasons, the delegate found there was not a real risk that [the first applicant] would suffer significant harm were she to return to Bangladesh.
[The first applicant] sought review of this decision on 11 March 2017. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See folios 1-11 of the Tribunal file.
[The first applicant] appeared before the Tribunal on 2 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
[The first applicant]’s claims from her Protection visa application were included in a statutory declaration of 8 December 2014 which was submitted with the application. Her claims are summarised as follows:[4]
[4] See folios 43-54 of the Departmental file.
·Her main reasons for seeking protection are based on fear of harm at the hands of her former husband. During the course of their marriage he subjected her to serious harm. He was very violent, emotionally abusive and manipulative towards her. He has threatened to kill her. His behaviour towards her became worse when he began working as a [Occupation 1] and began drinking alcohol heavily. In about 2004 she heard he was having relationships with other women. When confronted about this he beat her very badly. In 2013 she found out her former husband had married another woman and had a child and when she confronted him about this she was beaten very badly and her former husband’s family had to take her to hospital where she remained for about a week.
·She comes from a Shia family, and her former husband came from a Sunni family. Shias are a minority in Bangladesh while Sunnis are the majority. Her husband came from a very conservative and traditional family.
·Their marriage was a love marriage and they married in secret. Her father initially disowned her when he found out.
·When she became pregnant in 2003 the relationship between her and her former husband and his family began to deteriorate. She was accused of not being a proper Muslim and criticised for the way she prayed and fasted. She was ridiculed by her former husband’s relatives because of her religion. She refused to convert to Sunni Islam which caused her former husband much anger. She was not allowed to attend the Shia mosque or participate in important Shia rituals.
·Fortunately, her elder sister’s husband had spoken to her father and encouraged him to accept her back into the family. While she was pregnant she visited her parents regularly for a day or two at a time.
·Her former husband did not receive a dowry when they were married. When she commenced working as an [Occupation 2] where her father [worked], her former husband would force her give the money she earned to him.
·While her father said she could return to live with him once he found out that she was being beaten, her father-in-law would not allow her to leave his house, where she lived with her former husband. She was also fearful of leaving her former husband as she only had a small income and her father was about to retire. When she took on some [specified work] she was ridiculed and insulted by her parents-in-law.
·Between 2006 and 2007 she was coerced by her former husband and his family into obtaining a number of loans on their behalf. She asked her former husband to repay these loans but he did not, telling her that she could repay them as she was working.
·After her former husband beat her in late 2013 she decided not to return to live with him and her father helped her to rent an apartment. She was threatened by her former husband’s family who began to tell people she was Shia. Once she was threatened by a group of Sunni Muslims and another time her house was ransacked. Her neighbours and landlord decided she could no longer live there. Her former husband refused to agree to a divorce and threatened to kill her. She returned to her parent’s home in about June 2014 but her former husband, his relatives and members of the Sunni community continued to threatened her. She tried to make a police complaint but this was not taken seriously.
·She has been subjected to ridicule, harassment and threats because she is a Shia woman, including that acid would be thrown in her face. In July or August 2014 a Bangladeshi Shia was killed by Sunni extremists. A family friend who was Shia experienced problems when he married a Sunni girl, and her brothers have suffered significant employment and social disadvantage because they are Shia.
·She decided to come to Australia and live with her sister and her sister’s family. She had to trick her former husband into signing relevant consent forms for her son to travel with her.
·Her father tells her that her former husband continues to threaten her family.
·She does not believe that the police would protect her in Bangladesh or that she could relocate to another area of Bangladesh and be able to subsist without family support or employment connections.
On 1 February 2017 the applicant’s then representative provided a supplementary (undated and unsigned) statement by the applicant prior to her interview with the delegate on 6 February 2017. Relevant additional matters raised in this statement are summarised as follows:[5]
[5] See folios 120-128 of the Departmental file.
·She discovered some mistakes and inconsistencies when she read her initial statement in Bengali.
·Her ‘middle class family’ is very liberal and free from all sorts of superstitions. All [her] siblings have completed tertiary education from University. Her family did not have any obligations regarding religious practices despite being part of the Sunni Muslim community. She has always been ‘insouciant to traditional religion’.
·Her father retired in 2004.
·Her elder brother became a Shia Muslim after working [with a specified employer] in Dhaka and influenced other family members (her parents and herself) to convert from Sunni to Shia Islam. She sometimes used to visit the Shia mosque in Mohammadpur which is close to the house of her elder brother. She was able to restore her relationship with her parents through the help and mediation of her elder brother, whose attitude towards her had softened.
·In 2004 her elder brother managed to get a job for her [where] her father worked, as he had close ties with one of the influential members of the [workplace].
·When beaten by her husband in 2013 she had to skip work for two days due to facial injury. She only told her elder brother. When later asked about the absence by a female colleague she was encouraged to file a general diary (GD) report, but the police would not take the complaint seriously. Police informed her husband of the report and when she came home she was slapped and verbally abused in front of her son, threatened that she would be burned with acid, and her former husband’s brother warned her that she should not make her child motherless, referring to the matter of a murdered journalist couple, which she suspects her brother-in-law’s TV channel has some involvement in.
·The next day she departed to her elder sister’s house where she stayed until June 2013, despite unknown people claiming to be journalists making threatening calls to the house. At the end of June 2013 she moved into a flat nearby. She forged her former husband’s signature to obtain a passport and visas for her son.
·In mid-March 2014 she sought a divorce from her former husband. He responded by threatening her. She was ordered by her landlord to leave her flat after people came to the flat threatening her and the flat was broken into and ransacked. Around June 2014 she returned to her elder sister’s house.
·A few weeks later [a senior member] of [a Bangladeshi media outlet] where her former husband’s brother-in-law works called her and ordered her to return to her husband without delay. She was extremely worried to have been called by such a powerful and influential person.
On 14 March 2018 the applicant provided a further submission to the Tribunal dated 9 March 2018. Relevant additional matters raised in this statement are summarised as follows:[6]
[6] See folios 16-87 of the Tribunal file.
·In relation to the delegate having pointed out some discrepancies between her initial statement and the one submitted to the Department on 1 February 2017, she prepared the latter statement a long time ago and gave it to her former agent to forward to the Department as soon as possible because she was not confident that the initial statement conveyed her experiences and her whole claim appropriately. When she queried the former agent some time later she found the agent had not sent the amended statement. She has emails that she exchanged with the agent regarding this. She lodged a formal complaint with the Migration Agents Registration Authority (MARA) regarding the agent’s unprofessional service and negligence.
·When she lodged the Protection visa application her mental and physical state was not good. She accepts there were some discrepancies in her initial written statement and further in her interview with the Department but there was nothing deliberate or intentional.
·In relation to getting a signature from her former husband for renewal of her son’s passport and the consent letter to obtain the Australian visa, everything was done by her older brother. Because of his work at [specified employer] she did not want to disclose his involvement as he was concerned for his safety and position in Bangladesh. Her brother advised her to avoid any questions or give a different answer about ‘forging’ the signature of her former husband as he was concerned for his safety in Bangladesh. He acted in her interests.
·She did not suggest her former brother-in-law was involved in the murder of a journalist couple but believes he is aware of the killer and motive. She was once threatened to be killed by his ‘goon’ while he commented to the effect that she should not make her son motherless as the child of the journalists had been.
·Legislation to protect women from abuse has not proved to be as effective as intended because, in practice, violence committed by a husband against his wife is not considered an offence punishable in the same way as other violence, and the deterrent value has been diminished by low conviction rates.
·In relation to her conversion to Shia Islam she is not a very religious person but is an open thinker. She involved herself because of her brother. She does not possess detailed knowledge of the faith but is still inspired by her brother to continue with the Shia faith and to encourage her son as well. She tells him he can choose whatever way he likes. In Bangladesh people never say publicly that they are of Shia faith.
·Her husband was concerned about her seeking a divorce for two reasons: Dowry and the ‘Crime against women and children’ offence in Bangladesh where there is no bail available. That is why he never consented to a divorce but kept threatening her and her parents. The threat to her parents has eased as she is no longer in the country.
·A woman in Bangladesh can divorce her husband unilaterally and does not require a delegation to exercise such rights, but this can only be done by legal process through a legal representative.
·She is sure if she had divorced and remained in Bangladesh it would have been very difficult and dangerous for her as the example of Dr Rumana Manzur (who was blinded) as well as the example from an enclosed press clip from March 2017 of the brutal murder of a divorced woman shows.
·While she was supported by her parents and siblings in Bangladesh they had to give up when her problem endangered their lives as well as their ‘face’ in society. Her parents were tormented, harassed and humiliated over her single-mother status. Her sister in Australia was often criticised and rebuked by her husband because of her divorce and ‘single-mother’ status which resulted in serious domestic violence and the applicant choosing not to visit her sister’s home.
·She has decided never to remarry but this status would be difficult to maintain in Bangladesh. Her son will be ostracised, may be bullied and even criticised by teachers if they come to know of her status.
·As a single mother and divorcee she would also be treated badly by others in the neighbourhood as well as at her workplace. She could be targeted by any male if they came to know her marital status or vulnerable position.
·She could not safely relocate as word of her return would soon spread. Her ex-husband or his relatives would be alarmed again by her return and would try to harm her and her son.
·Her claim is based on her religion and/or her membership of a particular social group comprising women of her ‘situation’ in Bangladesh.
The following documents were included with the submission:
·Copy of a ‘question and answer’ report by academic Professor ASM Amanullah of Dhaka University regarding the situation of single mothers, divorcees and unmarried women over 30 years of age in Bangladesh.
·An image of her grandfather with Mahatma Gandhi.
·Copies of her [academic qualifications].
·Copies of two Refugee Review Tribunal (RRT) cases (1008269 and 1215076) and a New Zealand Immigration and Protection Tribunal (NZIPT) case (800945) where members found women required protection.
·Copy and translation of the divorce notice served on her former husband.
·Copies of correspondence with the MARA regarding a complaint she lodged (but subsequently withdrew) concerning her previous representatives, who she believes did not act duly and diligently on her behalf.
·Copies of various press clippings and general information regarding incidents in Bangladesh she considers are relevant to her claims, including regarding how women are not safe in the hands of police and other government agencies.
·Copies of 2018 and 2017 reports by Human Rights Watch on the situation in Bangladesh, including for women.
·Copies of a court order and police report in relation to domestic violence between her sister and brother-in-law in Victoria Australia.
At the hearing on 2 October 2018 [the first applicant] submitted copies of emails exchanged between herself and her former representatives.[7]
[7] See folios 104-142 of the Tribunal file.
At the hearing [the first applicant] commented that she scanned and sent her marriage document to her lawyer in Bangladesh who confirmed that her marriage agreement was such that she was entitled to divorce her husband via Talak-e-Tawfiz. The Tribunal asked the applicant to submit a certified true copy of the original marriage certificate document (which she said was in Bengali) and an English translation. On 7 October she emailed the Tribunal stating that this sort of divorce right (for a Bangladeshi woman to divorce her husband) is not mentioned in the marriage certificate or any other such documents as she thought it was. She enclosed a copy of a letter from a Bangladeshi lawyer to establish her divorce rights and her claim to be a ‘successful divorcee’. This letter, from [Mr A] ‘senior practising solicitor’, states that ‘Under Bangladeshi Law it is a woman’s right and she can exercise this right anytime she needed’. He states that ‘The Wife can divorce (Talak-E-Tafwiz) to husband as per above mentioned Law’ (section 8 of the Muslim Family Law Act 1961).[8]
[8] See folios 143-147 of the Tribunal file.
Findings and reasons

The issues in this review are whether [the first applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm from her ex-husband and/or members of his family, and/or from members of the Sunni Muslim community, if she was to return to Bangladesh, because she is of the Shia Muslim faith and/or because she is a member of the particular social groups comprising divorced women and single mothers; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Bangladesh, there is a real risk [the first applicant] will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
Considering the copies of the applicants’ Bangladeshi passports provided to the Department, the Tribunal finds that the applicants are citizens of Bangladesh as claimed. Accordingly, the Tribunal finds that Bangladesh is the applicants’ country of nationality for convention purposes and is the applicants’ ‘receiving country’ for complementary protection purposes.[9]
Credibility
[9] See folios 55-83 of the Departmental file.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
For the reasons discussed in more detail below the Tribunal has significant concerns regarding the applicant’s credibility. The applicant originally was represented by the [specified legal representatives]. Her Protection visa application, which included a detailed statutory declaration of 8 December 2014, was prepared with the assistance of a legal practitioner from this organisation. The applicant subsequently prepared a further unsworn, unsigned and un-dated statement titled ‘Ordeal of an ill-fated ‘Singe mother’ from BANGLADESH’ which was submitted to the Department by her then representative on 1 February 2017. The content of this statement differs from the initial statement in a number of significant aspects.
In her submission of 9 March 2018 [the first applicant], when commenting on the discrepancies between her initial statement and the later statement submitted on 1 February 2017 (raised by the delegate in the decision record) states that the amended statement, which was prepared a long time ago, is the one that she relied on as she was not confident that the initial statement conveyed her experiences. Noting this, at the hearing the Tribunal sought to get a clear sense from [the first applicant] regarding how her initial statement was prepared. The Tribunal asked her whether her legal representative explained to her that it is a legal document and that there are penalties for making false statements. She said she was not sure. She indicted that she was depressed at the time and that she had only recently arrived in Australia but commented that maybe she was told that as her representative at the time was a legal practitioner. When asked about the process undertaken to prepare the statement, [the first applicant] said they met once a week over a four week period, with a Bengali interpreter. She indicated that once the statement was prepared it was read through with her, using an interpreter, before she signed it. The Tribunal asked when and why she decided to change her statement. She said it was 5-6 months after the Protection visa application had been submitted. She said she looked at the English language statement again and did not understand some words, so had it translated into Bengali by a friend. She said a Bangladeshi friend who had studied law at [named university] then assisted her to prepare the revised statement in English. [The first applicant] indicated that when she called [her then legal representatives] and told them she had prepared a new statement and sought an appointment to discuss it with them, they would not meet with her but said they would contact her if needed. She indicated that she followed them up by phone then after about three months she started emailing them. The first email among the emails she provided to the Tribunal at the hearing indicates that she met with her then representative in late July 2016 and handed over her amended submission for the representative to forward to the Department.
When the Tribunal discussed with the applicant the key differences between the two statements, she commented (as the delegate’s decision record indicated she had commented at the interview with the delegate) that she is not very comfortable talking about her initial statement as she made many mistakes when that was prepared. The Tribunal indicated to [the first applicant] that her credibility is an issue in this case and hence the Tribunal needs to question her on the differences in matters of substance between the statements and cannot ignore her initial statement. For the reasons discussed below, the Tribunal does not accept the applicant’s comment in her statement of 9 March 2018 that while she accepts there were some discrepancies in her initial statement and further in her interview with the Department, there was nothing deliberate or intentional about this. The Tribunal finds that the detailed initial statement was prepared over a significant period of time, with a legal practitioner experienced in refugee law matters, and the assistance of a Bengali interpreter (and notes that the email exchanges between the applicant and her then representatives also indicate she has quite good English language skills). While the Tribunal accepts, based on the emails she has provided to the Tribunal, that the applicant was poorly served by her then representative when she provided them with the revised statement in around mid-2016 and because they failed to submit a post-interview submission to the Department when they indicated they wished to do so, the Tribunal does not accept that the differences of substance in the two accounts are due to unintentional errors or oversights or the applicant’s mental state at the time. The Tribunal considers that it is clear that the applicant chose quite deliberately to manufacture and alter elements of her account over a period of time. As discussed further below the Tribunal finds that this raises serious questions about her motives, credibility and the veracity of her claimed genuine statement and account.
Assessment of claims
Claimed conversion to Shia Islam
In her statutory declaration of 8 December 2014 the applicant claimed that she came from a Shia family. She indicated that she was threatened that she should convert to Sunni Islam or she would be outcast, her refusal to convert to Sunni Islam caused her husband much anger and that he would often threaten he would marry another woman if she refused to convert. She wrote that her whole family have suffered in their own ways because they are Shia. She made no specific mention of her elder brother. In her subsequent unsigned, unsworn and undated statement produced in 2016, however, [the first applicant] states she was born into a renowned Sunni Muslim family but comments that her family was very liberal, highly educated and free from all sorts of superstitions. She comments that she has ‘always been insouciant to traditional religion’. [The first applicant] comments that she could not express herself properly in the previous statement and there were some misunderstandings and inconsistencies which she only discovered when she read a Bengali language translation of the statement later. She comments that she actually meant to say that her elder brother is a convert to Shia Islam because he used to work [with a specified employer] in Dhaka and gradually came to lean towards the Shia ideology. [The first applicant] claims that her elder brother subsequently influenced her and other members of the family to become Shia Muslims. She indicates that she could not speak about her elder brother’s connection with the [employer] previously because she was afraid of misunderstandings. As noted above, given the way the initial statutory declaration was prepared and noting the way the references to her being a Shia are constructed, the Tribunal does not accept that this was a mistake or inconsistency but considers that the applicant deliberately and falsely stated she came from a Shia family in her initial sworn statement. The Tribunal does not accept that if she had converted to Shia Islam because of the influence of her elder brother she could not have conveyed this in her initial statement without raising his connection to the [specified employer].
When queried about these matters at the hearing [the first applicant] indicated that she assisted her elder brother, through the influence of a friend of her husband, when he was arrested in 2001. She indicated that she had been estranged from her family since she married in 1998, without her parent’s consent, but after she assisted her elder brother she became close with him and her relationship with the rest of her family was resumed. She indicated that when she became pregnant in 2003 she became frustrated due to her family issues (with her in-laws) and her elder brother helped her by giving her books and leaflets and telling her how she could become more confident and get peace by changing her mind and faith. The Tribunal asked [the first applicant] if there was any formal process that she had to go through to convert to Shia Islam, such as a ceremony at a Shia mosque. She replied yes but simply commented that she started praying in a different way to Sunnis and doing her Iftar (breaking of the fast) a little later, and that they have Ashura processions which are very different to Sunni Muslim practice. When asked if she had been a practising Sunni Muslim she said she was not very practising, commenting that she did not pray five times a day. When asked how her in-laws reacted to her reading books and leaflets about Shia Islam and changing the way she prays and observes Iftar she said they behaved very badly towards her. She said at one point she used a stone to pray like a traditional Shia and broke fasting a little later than them, so they easily identified her as having converted. When asked who else in her family converted she replied ‘most of them’. She said her parents converted and many other siblings mentally supported Shia but dared not identify their religious identity.
In her revised statement prepared in 2016 the applicant said that her in-laws rebuked her, sought to humiliate her in front of others by calling her Shia and imposed restrictions upon her movement outside the house, but she would still sometimes visit the Shia mosque in Mohammadpur, which she stated is close to her elder brother’s house. At the hearing, however, while she said her elder brother led her to the Shia mosque in Mohammadpur, she commented that she went to that mosque once or twice. The Tribunal asked the applicant if she is attending a Shia mosque in Australia. She said a friend informed her there is a Shia mosque in [Suburb 1] but she only attended it once as it is a bit far from her home. She added that nowadays she does not have much interest in religion and that is why she doesn’t go. She said she is more interested in humanitarian rather than religious activities. The Tribunal commented that it had got that impression from reading her 2016 statement, where she said she was insouciant to religion, and queried [the first applicant] that it seems surprising that she would adopt Shia practices when living in a traditional Sunni household, offending her husband and his family, when she is not a particularly religious person. She replied that in Bangladesh people can’t think beyond religion and maybe she was influenced by her elder brother. The Tribunal asked [the first applicant] if she is bringing her son up to be a Shia. She said she hasn’t told him anything about religion and is insisting he be educated and then he can choose based on his education. The Tribunal asked [the first applicant] if her son is receiving any religious education. She indicated that he is not.
The Tribunal asked [the first applicant] about the main differences between Sunni and Shia Islam. She said ‘we’ believe in 12 Imans and that Ali is the first descendant after the Prophet Mohammad but Sunnis believe Ali should come after three companions of the Prophet. She said Shias prioritise Hassan and Hussain as descendants of the Prophet. The Tribunal asked her how the teachings of the two differ. She replied that it is a difference of beliefs and ‘they’ grabbed power by force from Ali and since then they are doing the politics of grabbing power. The Tribunal commented that the term Sunni comes from the phrase ‘Ahl al-Sunnah’ and they see themselves as the orthodox branch of Islam and asked [the first applicant] how Shias differ in that regard. She reiterated that Shias believe leadership should come from the Prophet Mohammad’s family and that Sunnis adulterated the teachings of the Prophet and did not allow his family members to become the leaders. She added that the Sunnis say they are following the Prophet’s teachings but ‘we’ believe it should come from his family, but in Karbala the last descendent of the Prophet was killed by Sunni authorities.
While the Tribunal accepts that [the first applicant] has some general knowledge regarding the differences between Shia and Sunni Muslim ideology, considering all her evidence the Tribunal does not accept that she converted to Shia Islam in 2003 or that she is a Shia Muslim now. Given her statements indicating that she has always been indifferent to traditional religion, only attended a Shia mosque in Bangladesh ‘once or twice’, is not a practising Shia Muslim now and has not provided any religious education for her son, the Tribunal does not accept that [the first applicant] converted from Sunni to Shia Islam while living with conservative Sunni Muslim in-laws in Bangladesh or that she would offend her husband and in-laws by adopting Shia practices in their home, given the low level of commitment she has to any religion. The Tribunal considers that [the first applicant] has concocted her claim to have converted to Shia Islam in 2003 with the view that this will enhance her chances of being found to be owed protection in Australia.
Based on consideration of all the available evidence the Tribunal finds that the applicant would not practise as a Shia Muslim if she returned to Bangladesh. The Tribunal discussed this with the applicant at the hearing. She commented that, even if not-practising her husband has put a ‘sign-board’ on her back stating that she is Shia, which will get her attacked. While for the reasons outlined above and discussed further below, the Tribunal does not accept that her ex-husband has depicted [the first applicant] as a convert to Shia Islam and that she will be at risk because of this, the Tribunal also put to the applicant the country information cited by the delegate in her decision record, which indicates that while the Shia community is only small (less than 100,000) the community enjoys similar rights to other Muslims and apart from three incidents since October 2015 claimed by Islamic State, attacks on the Shia community had been very rare in Bangladesh.[10] The three incidents since October 2015 appear to be isolated incidents (‘an attempt to sow sectarian discord in a country that has long avoided denominational disharmony’[11]) and the delegate found that, given the extent of [the first applicant]’s practise of Shia Islam, she was not satisfied that [the first applicant] had a profile that will cause her to be targeted for harm. In response [the first applicant] commented that Shias are isolated and that once it is known that someone is from the Shia community no Sunni Family will agree to marry with them and society as a whole do not consider Shias to be Muslims. While the Tribunal accepts that many families may be reluctant to endorse intermarriage between Shia and Sunni Muslim couples, the Tribunal does not accept that available country information indicates that Shias are isolated, ostracised or persecuted generally in Bangladesh. In this regard the Tribunal notes an editorial from the Dhaka Tribune in October 2016 calling on Bangladeshis to stand with Bangladesh’s ‘vibrant, valued and valuable’ Shia minority among Muslims in Bangladesh to mark Ashura in 2016, following a bomb attack on the previous years’ Ashura procession which was followed a week later by an incident at a Shia mosque where gunmen killed the muezzin and three others. The editorial comments that ‘Unlike many other nations, Bangladesh does not have a history of Shia-Sunni conflict’ and states ‘We certainly cannot afford to start going down that road now. Nor will we.’ The editorial comments on Bangladesh’s longstanding history of religious tolerance and communal solidarity being much stronger than the hate of the tiny minority who wish to undermine it.[12] Considering all the relevant evidence, the Tribunal finds that [the first applicant] does not face a real chance of suffering persecution involving serious harm because she has been or will be perceived to follow the Shia Muslim faith.
Claim to fear harm from her ex-husband and his family
[10] DFAT Country Information Report, Bangladesh, 5 July 2016.
[11] ‘Bangladesh’s Homegrown Problem’, Foreign Affairs, 6 July 2016, ‘Standing with the Shia community this Ashura’, Dhaka Tribune, 12 October 2016, type="1">
In her statutory declaration of 8 December 2014 [the first applicant] indicates that she had a ‘love marriage’ (as opposed to an arranged marriage) in secret [in] September 1998. She states because it was a love marriage her husband did not receive a dowry payment from her family when they married. She indicates that while she had been admitted to a [specified course] she was not able to study because she was living in her father-in-law’s house and he would not permit her to study. She indicates that the relationship between her and her husband and his family began to deteriorate early in 2003 when she became pregnant and his family criticised the way she prayed and fasted and would say that she was not a proper Muslim because she is Shia. She indicated that her husband began working as a [Occupation 1] where he did a lot of socialising and began drinking heavily and his behaviour towards her became worse and worse and became violent towards her. She indicates that while her husband allowed her to accept a position as an [Occupation 2] where her father worked he would force her to give her earnings to him. She states he harassed her in front of her work colleagues and would physically abuse and threaten her at home. She indicates that she became aware he was having relationships with other women and eventually that he had a second wife and another child, but was beaten when she confronted him about these matters.
[The first applicant] indicated that she applied for passports for herself and her son at the end of August or early September 2013 (their passports were issued [in] 2013). She said her husband consented to their son obtaining a passport and that her husband is listed as the emergency contact on her passport as they were still living together as husband and wife at the time. She indicated that she left her husband towards the end of 2013 when he beat her after she confronted him about having another wife and child. She stated she was hospitalised for a week and then taken to her parents’ home and then her father helped her rent an apartment, which she and her son moved into [in] December 2013. She claims her husband’s family began to threaten her and tell people she was a Shia and on one occasion a group of Sunni Muslims came to the apartment and threatened to kill her and that on another occasion the house was broken into and ransacked. She states that as a consequence her landlord asked her to leave.
[The first applicant] indicated that she sent a legal notice to her husband in February 2014 requesting a divorce, but he refused to sign and threatened to kill her if she pursued the matter. She stated that in about June 2014 she went to live with her parents but continued to receive threats from her husband, his relatives and other members of the Sunni community. She indicates that police did not take complaints she made seriously.
[The first applicant] indicated that her sister who lives with her family in [Australia] suggested she come to Australia and live with them. She indicated she obtained her husband’s permission for her son to travel without his knowledge by having her son present his school report to his father to sign and getting him to sign the English language visa permission form at the same time.
The applicant altered this account dramatically in her revised statement of 2016. In the revised statement she indicated that if she spoke about leaving her husband he would often threaten to kill her. She states that in 2013 when she questioned him about his second marriage he severely beat her and (rather than being hospitalised for a week) she had to skip work for two days due to a facial injury and, encouraged by her elder brother and a female colleague, went to a nearly police station to file a general diary detailing the abuse she had suffered. She claims she was rebuked, however, and told it was family strife/a very personal matter and police would not make a report. She indicates that when she returned home it became evident that police had informed her husband and she was verbally abused, slapped and threatened by him and warned by her brother-in-law not to do things that could leave her son motherless. She indicates that (rather than going to her father’s house) she went to her elder sister’s house where she stayed with her son until the end of June 2013 when she moved to a flat near her elder sister’s house. She states that when she applied for passports for herself and her son she used her sister’s address and kept her husband in the dark about what she was doing. She stated she counterfeited her husband’s signature both to get the passport and to get the Australian visa for her son. She indicated she did not mention this previously because she had a guilty conscience and in was fear of it being misunderstood. She indicated that the information regarding going to her sister’s house was incorrect in her previous statement because her recollection of events at that time was blurred due to acute mental stress.
[The first applicant] stated that she sent a legal notice to her husband seeking a divorce in mid-March 2014 (rather than February 2014) but he did not sign and began threatening her because he thought if divorced she would file a case of ‘woman harassment’ against him. She indicated that it was during that period that unknown youth from the neighbourhood came to her house and threatened her, accusing her of being a prostitute and not being a proper Muslim, and a few days later her house was ransacked, which she began to suspect was arranged by her husband and his brother to frighten her. She states she again attempted to present a general diary to the police but police again declined to take any action. She states that her landlord asked her to leave following the break-in and around June 2014 she returned to her sister’s home with her son (rather than returning to her parents’ home). She comments that a few weeks later she received a call from [a senior member] of her brother-in-law’s [company] ‘ordering‘ her, ‘coldly but in a firm tone’, to return to her husband without delay.
In her decision record (a copy of which the applicant provided to the Tribunal) the delegate indicates that while [the first applicant] wrote in her amended statement that she left her husband in 2013 (without specifying a date) at interview she confirmed that she left her husband at the end of February 2013 (rather than [December] 2013 as stated in her Protection visa application). The delegate has commented that [the first applicant] indicated that her divorce has been finalised in accordance with Bangladeshi law and, when queried that she had claimed her husband had refused to sign the divorce papers in 2014 and asked why he changed his mind, stated that there was no requirement for her ex-husband to agree to the divorce. The delegate indicated that when questioned why, in that case, her husband’s refusal to sign the paperwork prevented the divorce being finalised previously, [the first applicant] said it was because she could not provide proof that he had received the paperwork. The delegate also cited country information that indicates that in Bangladesh a wife cannot divorce her husband on her own accord unless he has delegated such a right to her or under an agreement.
In her further submission of 9 March 2018, however, [the first applicant] suggested that she did need her husband’s consent to obtain a divorce. She commented that her ex-husband did not want to give her a divorce for two reasons: firstly because he was concerned that he might have to pay her an agreed sum of money if the marriage breaks down; and secondly, because he was afraid she might bring a case against him under the ‘Crime against women and Children’ domestic violence legislation in Bangladesh, an offence for which there is no bail available. She wrote ‘that was why my ex-husband never consented to the divorce when I previously sent him the legal notice’ and instead ‘kept threatening me by branding me as an infidel and a fallen lady’. She then comments, in contradiction, that a woman in Bangladesh can divorce her husband unilaterally and in that case does not require a delegation to exercise such rights, however, this can only be done by a legal process through a legal representative.
The Tribunal discussed these matters with [the first applicant] at the hearing, commenting that in her most recent submission (of 8 March 2018) she had included a copy of an Affidavit of Divorce by Wife which indicates that she had dissolved her marriage through ‘Talak-E-Tawfiz’ divorce ([in] July 2016). The Tribunal commented on the country information cited by the delegate and indicated the Tribunal’s subsequent research had identified an article by a Dhaka law firm, S Hossain and Associates, that seems to confirm that in Talak-E-Tawfiz cases the husband has to have consented to that type of divorce.[13] The Tribunal commented that this raises the question of whether her husband consented to the divorce (the delegate indicated in her decision record that she could not discount this possibility). The applicant replied that her marriage was a court marriage and ‘that type’ of divorce is permitted in a court marriage. The Tribunal queried her that the document she has provided indicates that the divorce was done as Talak-E-Tawfiz, which is an Islamic concept, and the laws for this (The Muslim Family Laws Ordinance, 1961) indicate that the power must be delegated by the husband and the divorce can’t be registered unless it is clear that this has happened.[14] [The first applicant] commented that when she decided to divorce she sent her lawyer a copy of her marriage document and he confirmed that she is entitled to divorce her husband by Talaq. She said this document was in Bengali. The Tribunal indicated to [the first applicant] that the issue of whether her husband consented to the divorce is an important one in this case and asked her to send the Tribunal a certified true copy of this document along with an English language translation, giving her three weeks in which to do so.
[13] ‘Laws of Divorce Procedure In Bangladesh’, S Hossain & Associates, The Muslim Family Laws Ordinance, 1961, Talaq (section 7) and Dissolution of marriage otherwise than by talaq (section 8), >
[The first applicant] subsequently indicated that, contrary to what she had thought, her right to divorce her husband is not mentioned in her marriage certificate or any other such documents. She stated that regardless of this it is the right of any Bangladeshi woman to divorce her husband whether he consents to it or not, and enclosed a letter from a lawyer in Bangladesh which comments that under Bangladeshi law it is a woman’s right to divorce and she can exercise this right anytime she needs to.[15] In support of this contention the lawyer cites sections 7 and 8 of the Muslim Family Law Act of 1961 and states that the wife can divorce (Talak-E-Tafwiz) by affidavit. The Tribunal finds, however, that section 8 of the relevant ordinance states:
‘8. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.’
[15] See folios 144-147 of the Tribunal file.
The Tribunal considers that, either [the first applicant]’s husband duly delegated the right to divorce to her at the time they were married or did so some time subsequent to their marriage. The Tribunal finds the applicant’s claims that she could unilaterally divorce her husband without his consent and the delay in obtaining the divorce was due to her inability to show he had received the relevant documents is inconsistent with her claim that he never ‘consented’ to the divorce when she sent him the legal notice as he was concerned about having to pay her a lump sum of money and that she would bring domestic violence charges against him. The Tribunal also considers that forcing his wife to stay in an unhappy/abusive marriage would likely increase the prospect of her bringing non-bailable domestic violence charges against him.
Like the delegate, the Tribunal accepts that [the first applicant] separated from her ex-husband in early (the end of February) 2013, taking their son with her. The Tribunal accepts that she may have suffered domestic violence in the relationship but considers she has exaggerated the extent to which her freedoms were curtailed by her ex-husband and his family. In this regard, the Tribunal notes that while the applicant claimed in her statutory declaration of 8 December 2014 that after completing her [first qualification], while she was admitted to [another course], she was not able to study because she was living in her father-in-law’s house and he would not permit her. This is contradicted, however, her submission of 9 March 2018, which included copies of her [Qualification 1] certificate dated [May] 2006, her [Qualification 2] Certificate dated [April] 2009 and her [Qualification 3] Certificate dated [March] 2011. It is clear that the applicant was able to study and work over an extended period while living with her in-laws. The Tribunal accepts that she is now divorced from her ex-husband. Like the delegate, the Tribunal notes that her ex-husband knew where she was living after she left him at the end of February 2013 up until she departed Bangladesh in mid-September 2014 (over eighteen months later) and while she claims that her husband, his family members and other people acting on their behalf, including [a senior member ] of [a media company], threatened and sought to intimidate her, neither she nor her son were harmed in the period of over eighteen months between when she left her husband and when she departed for Australia. Despite [the first applicant]’s claims that she fears if she returns her husband will seek to take custody of her son, the Tribunal considers there is nothing to indicate or suggest this is likely to be the case, noting that her husband did not seek to take either legal or any other action (including using physical force) to regain custody of his son over this time and there is no indication that he has taken legal action against her for bringing their son to Australia without his consent. In relation to her claim to fear physical violence from her ex-husband, his family members and others acting on their behalf if she returns to Bangladesh, the Tribunal considers there is not a real chance of this occurring, noting that [the first applicant] was not subjected to violent attack from her husband or parties acting on his behalf such as an acid attack, kidnap or physical assault, or an attack by ‘goons’ associated with her brother-in-law, or by local Sunni youths due to her husband telling people she was a Shia Muslim and a fallen woman, as she claims was threatened. In considering these matters the Tribunal also finds that [the first applicant]’s suggestion that her ex-husband’s concern regarding the relevant domestic violence law (which does not provide for bail) is a reason why he would not agree to a divorce is inconsistent with her claims that there is ineffective enforcement of relevant Bangladeshi laws to protect women from domestic violence and her claims regarding the degree of influence that her ex-husband and his brother wield, including with police, because of their connections.
The Tribunal considers that [the first applicant]’s husband may well have consented to their son obtaining a passport and travelling to Australia but also accepts that it is possible that [the first applicant] or her elder brother or persons acting on their behalf may have forged her husband’s signature on relevant documents, with the complicity of a corrupt or careless notary public. That the applicant has not been truthful and consistent in her evidence throughout the lodgement and processing of her Protection visa application makes it difficult for the Tribunal to sort the facts from fiction. Regardless, the Tribunal considers the totality of the available evidence does not support the conclusion that her ex-husband or members of his family including his brother were or are motivated to cause her (or her son) serious harm should she return to Bangladesh. Accordingly, the Tribunal finds that the applicant and her son do not face a real risk of persecution involving serious harm from [the first applicant]’s ex-husband, his family members (including his brother) and/or people acting on their behalf, including Sunni Muslim youth.
Claim to fear harm from the community as a divorced woman and a single mother
In the revised statement prepared in 2016 [the first applicant] stated that her main fear, apart from her husband, his brother and his depraved colleagues, is conservative Sunni fundamentalist Muslims ranging from fanatic neighbours to local mosque committee members who will vilify her and seek to cause her harm; and people in typical Bangladesh society who would try to take advantage of her if she lives as a single mother anywhere in Bangladesh. In her submission of 8 March 2018 she comments that she will be treated badly in the neighbourhood and at the workplace as a single mother and divorcee and fears that any male could target her if they come to know of her marital status or vulnerable position. She cites Dr Dina M Siddiqi, a Bangladeshi academic and anthropologist as stating that a woman without a male guardian was considered as socially suspect and sexually available and that without symbolic male shelter or family or practical family protection she would face a host of subtle discriminatory actions that in effect would make her a social outcast. At the hearing [the first applicant] said that her first fear is the society because her ex-husband has depicted her as a Shia convert; and that she will be treated as a divorcee and a single mum. She said her ex-husband will tell society that she is a divorcee, a single mum and a Shia convert and the society hates all these things.
As noted above, the Tribunal does not accept that the applicant is a Shia convert and does not accept that her ex-husband will tell people that she is a Shia, a Shia convert and/or an infidel or that her ex-husband or his family has an interest in vilifying her as a divorcee and as a single mother.
The Tribunal accepts, however, that divorced women and single mothers do comprise particular social groups in Bangladesh. In considering whether, in her particular circumstances, the applicant would face a real chance of suffering treatment amounting to persecution involving serious harm due to her being a member of these particular social groups, the Tribunal has considered the relevant information submitted by the applicant, the country information cited by the delegate in her decision record, and the most recent advice from DFAT contained in the February 2018 Country Information Report[16]. The relevant DFAT advice is summarised as follows:
[16] DFAT Country Information Report, Bangladesh, 2 February 2018, sections 3.83-3.91.
·Article 28 (2) of the Constitution states that women shall have equal rights with men in all spheres of the State and of public life, and numerous additional constitutional provisions prohibit discrimination on the grounds of sex. There are considerable legal protections for women in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. Many women now occupy positions in the civil service, judiciary, police, military, and local government institutions.
·While the participation of women in the workforce remains low compared to that of men, the emergence of the ready-made garment industry has provided a means of economic empowerment for large numbers of lower-income Bangladeshi women (although they are among the country’s most vulnerable workers).
·Women occupy 20 per cent of the seats in Parliament. Bangladesh has had two female Prime Ministers, including the incumbent, although this is not representative of the position of women in Bangladeshi society more generally (see also Political Opinion (Actual or imputed)).
·While women participate in all areas of Bangladeshi society, long-standing societal, cultural and religious attitudes continue to place limits on the extent of that participation. For example, a May 2016 survey conducted by the Asia Foundation on the attitudes of Bangladeshis towards democracy found that 62 per cent thought parliament should have only or mostly male representatives, an opinion shared by both men (69 per cent) and women (55 per cent). As noted in Personal Status Laws, laws relating to family (including marriage, divorce and inheritance) derive from religious tradition, which tends to disadvantage women. Religious leaders in rural areas sometimes impose flogging and other extrajudicial punishments on women accused of violating strict moral codes, but do not impose these punishments on men (see Traditional/Informal Justice Mechanisms (Village Courts)).
·Despite legal prohibitions, rape, sexual harassment and other forms of gender-based violence against women occur frequently. Human rights NGO Odhikar documented 757 rape cases in 2016 and 783 in 2017. These figures likely understate actual occurrence. Rape within marriage is not a crime. According to the US State Department, the prosecution of rapists is weak and inconsistent, which supports a culture of impunity and encourages further criminal acts by those who escape legal consequence for their crimes. NGOs report that a high-percentage of rapes and attempted rapes involve girls aged between seven and 12 years of age, and many rape victims subsequently commit suicide.
·Domestic violence is widespread. The Domestic Violence (Prevention and Protection) Act (2010) criminalises domestic violence. It provides for a punishment of up to six months’ imprisonment for a first offence or two years’ imprisonment for repeated offences. The law is not, however, effectively enforced. According to a survey conducted by the Bangladesh Bureau of Statistics in 2015, almost two-thirds of ever-married women had experienced one or more forms of violence (physical, sexual, economic, emotional or controlling behaviour) by their husband at least once in their lifetime, and 54.7 per cent had experienced violence during the last 12 months. Most women who had experienced partner violence (72.7 per cent) never reported their experience to others, with reasons for non-action including lack of access to social services, concern about family honour, fear of the perpetrator, and shame or embarrassment.
·While the government operates a confidential helpline for reporting abuse, very few Bangladeshi women are aware of the service. Local NGOs claim the number of women’s shelters and legal aid services nationwide remain inadequate compared to the need. Existing shelters rely heavily on project funding, leading to questions over sustainability. NGOs report that indigenous women in remote areas of the CHT are particularly vulnerable to violence and sexual assault, and are less likely to be able to access government services than women residing elsewhere in the country.
·A 2009 High Court guideline prohibits sexual harassment, known euphemistically as ‘Eve-teasing’, in private and public, including in educational institutions and workplaces. The Bangladesh National Women Lawyers’ Association reported in June 2016 that enforcement and monitoring of the guideline was poor, noting that the formation of complaints committees and the installation of complaints boxes at educational institutions was rarely enforced. In many cases, harassment prevents girls and women from attending school or work. Both women and men have been physically assaulted for challenging abuse. Odhikar documented 242 cases of sexual harassment, including stalking, in 2017. These figures are likely to understate considerably the true number of cases.
·Violence against women also occurs frequently, particularly in relation to disputes over dowries. Odhikar reported 256 cases of dowry-related violence against women in 2017, compared with 206 cases in 2016. Although less common than in the past, acid attacks against women remains a particular problem. Most acid attacks are reportedly related to marital, family, land, property or money disputes, or to a woman’s refusal to accept a marriage proposal. Odhikar reported 52 acid attacks against women in 2017, compared with 40 cases in 2016.
·Bangladesh has one of the highest child marriage rates in the world: 52 per cent of girls are married before the age of 18, and 18 per cent married before the age of 15. In February 2017, Parliament approved a law allowing girls under the age of 18 to marry under ‘special circumstances’, with permission from their parents and a court. The new law did not specify what ‘special circumstances’ might include, nor provide a minimum age for such marriages. The new law came in spite of a 2014 government pledge to end child marriage before the age of 15 by 2021, and to end marriage before the age of 18 by 2041. Local rights groups have expressed concern that the new law could lead to widespread abuse, legitimise statutory rape, allow parents to force girls to marry their rapists, and further encourage the practice of child marriage.
·DFAT assesses that most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community.

The Tribunal put to the applicant that while the relevant country information indicates that violence against women in Bangladesh is a significant issue, it also indicates that some women are more vulnerable to this violence than others. The Tribunal commented that the delegate had found that she had the support of her family with whom she now has good relationships, is not without a male protector (in the form of her father and elder brother), is highly educated and worked as an [Occupation 2] from 2004 to 2014, and concluded she was significantly less vulnerable to gender based harm and violence due to her status than poorer, less educated divorced or single women and concluded that she did not face a real chance of serious harm due to being a divorced woman in Bangladesh. [The first applicant] said she cannot accept that assessment. She said she divorced her husband from Australia and they consider she humiliated them. She said her husband is influential and would seek to cause her significant harm as a Shia convert, single mum and divorced woman. She indicated she is very vulnerable and does not have a male protector because her father and brother can only give her protection for a limited time. She commented that she will have to face the ugliest side of society and her son couldn’t cope seeing his seeing his mum suffer and will also be pointed out as the child of a divorced mother. The Tribunal queried the applicant whether she could live with her elder brother, with whom she had indicated she is particularly close. She said he has his own family and indicated that he could not care for her for an extended period, commenting that she left Bangladesh because he was not in a position to support her long-term.
As noted above, the Tribunal does not accept that [the first applicant]’s ex-husband and his family members have sought or will seek to portray her as a convert to Shia Islam. As her ex-husband did not act to cause her or their son serious harm in the period of over eighteen months after she took their son and separated from him, or to regain custody of their son, the Tribunal does not accept that he and/or his family members will act to cause her serious harm should she return to Bangladesh on the basis that her having formalised their separation by finalising their divorce from Australia has humiliated them.
Like the delegate, the Tribunal notes that despite constitutional provisions preventing discrimination and legal prohibitions against gender-based violence, DFAT assesses that most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. The Tribunal accepts that the applicant and her son will likely face some societal discrimination in the form of being criticised and/or ostracised by some members of the community and that [the first applicant] could possibly be subjected to some unwelcome male attention, but does not accept that they face a real risk of treatment amounting to serious harm.
In this regard the Tribunal finds that it is significant that the applicant has a positive relationship with her family in Bangladesh. She has indicated that her father, while retired and now living in his ancestral home in Rajbari, is comfortably well off having received a lump sum pension and having ‘lots of land’. She has indicated that she received very strong support from her elder brother while she was in Bangladesh and also received strong support from her elder sister and her elder sister’s husband. She has lived as a single woman with her son in Dhaka in the past. The Tribunal considers that [the first applicant] could live with one of these family members while she finds her feet on return to Bangladesh and that in the longer term could seek accommodation close to either her elder brother or elder sister in Dhaka where she could gain support and a degree of protection from them and their families. The Tribunal does not accept her assertions that no landlord will rent her a house if they know she is a divorcee and a single mother, noting that she has previously rented accommodation as a single mother while separated from her husband, and noting that she has the support of her father and elder brother.
While the Tribunal accepts that [the second applicant] might suffer some societal discrimination, such as teasing, as a consequence of his mother’s status as a divorcee and single mother, the Tribunal considers that [the first applicant] has not advanced any information to indicate or suggest that there is any basis for her assertion that her son will not be able to continue his studies in any school in Bangladesh if they discover his mother’s marital status. The Tribunal does not accept that any such discrimination suffered by [the second applicant] would amount to persecution involving serious harm. The Tribunal also does not accept that [the first applicant] faces a real chance of serious harm because she does not follow Islamic dress code, noting the country information cited earlier and in the delegate’s decision record indicating that Bangladesh is a country with a longstanding history of religious tolerance and communal solidarity which has long avoided denominational disharmony. The Tribunal considers the available evidence indicates [the first applicant] is a [highly educated woman] and noting her past employment for ten years as an [Occupation 2], her supplementary [work], and noting her comments that in the past she had to turn down private sector employment offers at her then husband’s insistence, considers that she is well placed to find professional level employment where she would be far less vulnerable to sexual harassment and exploitation. The Tribunal finds that [the first applicant] has demonstrated herself to be a resilient woman in the past, where she has managed to juggle education, employment and child-rearing in an environment where she was in an abusive relationship. With the close family support that she is likely to receive on return to Bangladesh the Tribunal does not accept that [the first applicant]’s son’s mental health will suffer as a consequence of him seeing her suffer. Accordingly, the Tribunal does not accept that the applicants face a real chance of suffering persecution amounting to serious harm from conservative/fundamentalist Sunni Muslims or the Bangladeshi community generally due to [the first applicant]’s status as a member of the particular social groups comprising divorced women and/or single mothers in Bangladesh.
Considering their claims cumulatively as well as individually, the Tribunal does not accept that the applicants face a real risk of suffering persecution amounting to serious harm from [the first applicant]’s ex-husband, his family members and/or their associates and/or from conservative/fundamentalist Sunni Muslims or the Bangladeshi community generally due to [the first applicant]’s religion or her membership of the particular social groups comprising divorced women and/or single mothers in Bangladesh.
As the Tribunal does not accept that the applicants face a real chance of persecution amounting to serious harm the Tribunal finds that the applicants do not require the protection of the Bangladeshi authorities.
Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) of the Act.
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.
In considering whether there is a real risk that the applicants will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to Bangladesh, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17]
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[The first applicant] has not advanced any claims indicating that she considers she and her son would face a real risk of significant harm if returned to Bangladesh other than for the reasons discussed above relating to her claims under the refugee criterion. Given the Tribunal does not accept that the applicants face a real chance of suffering persecution amounting to serious harm in the reasonably foreseeable future if they return to Bangladesh, the Tribunal, having regard to the findings of fact set out above and [the first applicant]’s claims individually and cumulatively, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that the applicants would suffer significant harm in the form of being arbitrarily deprived of their lives; having the death penalty carried out on them; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by [the first applicant]’s ex-husband, his family members and/or their associates; and/or from conservative/fundamentalist Sunni Muslims; and/or the Bangladeshi community generally; and/or Bangladeshi police or other authorities; or anyone else, should they be returned to Bangladesh.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either of the applicants 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Paul Windsor
Member
Relevant law

ATTACHMENT A
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a child who has not turned 18 years of age.

[2019] AATA 3756

11 February 2019

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