1706681 (Refugee)

[2022] AATA 2496

1706681 (Refugee) [2022] AATA 2496 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan

CASE NUMBER:  1706681

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Melissa McAdam

DATE:15 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

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Statement made on 15 June 2022 at 10:30am

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh – religion – Buddhist – false murder case against applicant – membership of the particular social groups – members of a minority religion – Buddhism – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa on 12 May 2016.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

9. The following is a summary of the claims and information the applicant provided in his Protection visa application:

   a.He was born in [year] in Cox’s Bazaar in Bangladesh. 

   b.He used an Indian passport to enter Australia.

   c.He is married with [children]. His wife and children are living in Cox’s Bazaar, Bangladesh.

   d.He is of Buddhist religion.

   e.He ran his own business in Bangladesh. He was in [Country 1] for a year and a half from February 2012 to October 2013, working as a [Occupation 1].

   f.He was falsely accused of murder in Bangladesh. He fears being killed by Jamaat Shibir, Islamic Fundamentalists.

   g.He left Bangladesh on [date] June 2014 and went to India. He lived on donations as a Buddhist Monk there.

   h.He arrived in Australia on [date] April 2016.

10. He submitted copies of the following documents with the application:

    -An Indian passport in the name [Alias 1].  It shows a departure stamp from India on [date] November 2014; a visa to [Country 2] issued on 14 October 2014; an entry stamp to [Country 2] on [date] November 2014; an exit stamp from [Country 2] on [date] November 2014; a visa to [Country 3] issued in November 2014; a Tourist visa to [Country 4] issued on 7 November 2014; an entry stamp to [Country 4] on [date] November 2014; an exit stamp from [Country 4] on [date] November 2014; an entry stamp to [Country 2] on [date] November 2014; an exit stamp from [Country 2] on [date] November 2014; an entry stamp to [Country 5] on [date] November 2014; an exit stamp from [Country 5] on [date] November 2014; an entry stamp to [Country 3] on [date] November 2014; an exit stamp from [Country 3] on [date] November 2014; an entry stamp to [Country 2] on [date] November 2014; an exit stamp from [Country 2] on [date] November 2014; a visa for [Country 5] issued in November 2014; an entry stamp to [Country 6] on [date]  November 2014; an exit stamp from [Country 6] on [date]  December 2014; an entry stamp to [Country 2] on [date]  December 2014; an exit stamp from [Country 2] on [date]  December 2014; an arrival stamp to India on [date]  December 2014; and a departure stamp from India on [date] April 2016.

    -A Bangladeshi passport in the applicant’s name, issued in [2008] and expiring in [2013].  It contains a departure stamp from Bangladesh on [date] February 2012; an entry stamp to [Country 1] on [date] February 2012; an entry visa to [Country 1]; a renewal stamp issued by the embassy [in] June 2013 with a new expiry date in 2015; an arrival stamp to Bangladesh on [date] October 2013; a departure stamp from Bangladesh on [date] March 2014; an entry stamp to [location] India in March 2014; a departure stamp from [location] in June [illegible] ; an entry stamp to Bangladesh on [date] June 2014; a departure stamp from Bangladesh on [date] June 2014; an entry stamp to [location] India on [date] June 2014; an Indian visa issued [in] 2014;

    -The applicant’s Bangladesh Birth Certificate issued [in] February 2014.

    -The applicant’s Bangladesh Marriage Certificate showing his marriage to [Ms A] in 2009, issued [in] April 2016.

    -A Declaration of Marriage by the applicant, dated 17 April 2016, declared at a Notary Office in Cox’s Bazaar.

    -A Declaration of Marriage by the applicant’s wife, dated 17 April 2016, declared at a Notary Office in Cox’s Bazaar.

    -A ‘First Information Report’ dated 5 March 2014.

    -A ‘Charge Sheet’ dated 18 July 2014 naming the applicant.

    -A ‘Warrant’ dated 7 March 2014 for the arrest of the applicant as ‘the accused’.

    -An ‘Injury Certificate’ dated 1 March 2014 and stamped ‘Police Case’. It names the applicant’s mother as the injured person and states she was unconscious, cut on her right arm, her left tibia fractured, with ‘grievous’ injuries.

    -An ‘Injury Certificate’ dated 12 June 2014 and stamped ‘Police Case’. It names the applicant’s wife as the injured person and states she has bitemarks, vaginal swelling, and was raped.

11. The First Information Report (‘FIR’) dated 5 March 2014 names the informant as [Mr A] and gives the applicant’s name as the accused. It states that the information has been lodged and the case will be investigated. The informant declares that his younger brother, [Mr B], worked for a long time under the applicant. The applicant would force the informant’s brother to do “illegal Hondi[1] business”.  The brother resigned and the applicant then kidnapped him and demanded a 20 lakh ransom payment by phone to the informant. The applicant told the informant that if the ransom was not paid his brother would be killed. The informant went to the police. The accused returned the informant’s brother badly injured. He was taken to hospital where he died. The applicant and “his co-accused” escaped.  The FIR lists the names of five witnesses including the informant. The police add to the FIR that they have investigated and the offence is ‘prima facie’ proved. A warrant for the applicant’s arrest dated 7 March 2014 is added to the FIR.

    [1] Reportedly ‘Hondi’ means informal and/or unlawful money transfers. See e.g. Development Dynamics of Remittances in Bangladesh (sagepub.com)

12. On 19 October 2016 the applicant submitted a Statutory Declaration which contained the following:

    a.At the time of applying for protection, he met [Mr C] who claimed to be a migration agent and said that he would assist the applicant to apply for a protection visa.

    b.The applicant told [Mr C] about his claim and provided a hand written statement to him. [Mr C] then typed it into Bengali and translated it into English and said he would submit it to the department. The applicant gave him other documents too.

    c.The applicant is not good in English. He trusted [Mr C] to complete the forms accurately.  After submitting the application [Mr C] did not give the applicant a copy of the application.

    d.Gradually the applicant became dissatisfied and then sought assistance from Parish Patience Immigration Lawyers. They said they would get all the applicant’s documents from the Department of Immigration and Border Protection and said they would then discuss the case with the applicant.

    e.On 4 October 2016 the applicant received an interview letter from DlBP to attend an interview on 21 October 2016. On 13 October 2016 Parish Patience Immigration Lawyers advised him that that they had received his documents and arranged a meeting. They gave the applicant the copy of his forms and other documents they received from the Department. The applicant noticed that [Mr C] did not mention that he assisted the applicant in the protection visa application. [Mr C] also wrote that the applicant’s mother and wife have died which is wrong. His mother and wife are still alive and live in Bangladesh. [Mr C] also did not submit the applicant’s detailed claim.  So the applicant is providing the following further details.

    f.He was born in Bangladesh in Cox's Bazaar, Chittagong.  He is the only child in his family. He is a Buddhist and follows Theravada Buddhism. His family is a very strong Buddhist family.

    g.From a young age he would go to the local Vihara (Buddhist temple) called [name] at [location]. Due to his minority religious background he faced harassment and intimidation and at times the extremists Muslims would threaten him to convert to Islam. They would say that Buddhists are not suitable to live in this world because of their religious background.

    h.In school he also faced harassment from the teachers as well as the students. He started his primary education at [a] Primary School in 1979 and completed his studies in 1984.

    i.He then started a [business] in his village.

    j.On [date] February 2009 he married and he and his wife have two daughters.

    k.Due to the threats, harassment, bullying and intimidation from the Jamaat and its student wing Shibir he decided to leave Bangladesh because it became very difficult for him to run his business. The Jamaat and Shibir workers would come to his business place and demand money. If he failed to pay they would slap and warn him.

    l.On the advice of his family he left Bangladesh and went to [Country 1] in February 2012.  He earned money which he sent to his family.

    m.On 29 and 30 September 2012, members of the Jamaat and Shibir unleashed their attacks on minority religious group including the Buddhists. They specifically targeted minority religious people's houses and religious places and burnt them. As a result of that the applicant’s house was also burnt and his family was forced to live in a deplorable condition.

    n.The applicant sent money to his family to construct the family home again. When they had taken steps to build the house soon after the attack, the Muslim extremists got annoyed and angry and came to the applicant’s family and demanded them to hand over the money to them. The extremists warned the applicant’s family that to live in Bangladesh they have to pay ransom to the Muslim people and Mosques for their development. When the applicant’s father refused to pay a ransom the extremists attacked him and took money, 110 000 Bangladesh Taka, from him. this happened on  [date] October 2012.

    o.After the applicant’s two year contract expired in [Country 1], he returned to his family in Bangladesh in February 2014. He decided to build a small house and again the Jamaat and Shibir people started harassing his family. As a result he decided to lodge a police complaint at the local police station.  The applicant was shocked when the police officers demanded money from him. He refused to pay a bribe to them. As a result the police officers passed the message to Jamaat activists with whom they have a connection that the applicant had gone to the Police station to complain against the Jamaat people.

    p.Jamaat and Shibir Islamic extremists then went to the applicant’s home and beat his mother with bamboo sticks. They warned her to tell the applicant that they would do the same thing to him. As a result of the attack she sustained severe injuries and was admitted to the hospital. She became disabled.

    q.The extremists then lodged a false criminal case against the applicant to frame him and charge him.  When he learned that the Sunni extremist with help from the police filed an FIR he decided to leave Bangladesh.  He left on [date] March 2014.

    r.He went to India in order to save his life.  He disguised himself as a Buddhist Monk in India.

    s.On [date] June 2014, Jamaat and Shibir went to the applicant’s home and in order to take revenge against the applicant, they targeted his family and raped his wife repeatedly. His wife fell on the floor unconscious. On hearing the shouting from the applicant’s mother, neighbours came and took his wife to hospital. The doctor who examined her had confirmed that she was raped and had issued a medical certificate for that.

    t.After hearing about the incident the applicant returned to Bangladesh to see his wife on [date] June 2014.  He then went back to India on [date] June 2014.

    u.He stayed in India as a Buddhist monk.  He knew he would be soon identified by the Indian authorities since he was living there unlawfully.  He feared he would be deported back to Bangladesh. He managed to contact some agents and paid money and they arranged an Indian passport for him which he used to come to Australia on [date] April 2016. He lodged his protection visa application on 12 May 2016.

    v.He disclosed his real identity to the Department and provided truthful information to the department after arriving in Australia.

    w.He fears if he returns to Bangladesh he would face harm due to following reasons:

    -He belongs to the Buddhist minority religious group.

    -He holds an opinion against Islamic extremism including Jamaat.

    -He would seek justice for the horrible thing happened to his wife and believe it is his duty to seek justice.

    x.His wife and family fear that if the applicant now seeks justice the Jamaat people would again target them. That is the reason he has not taken steps. His wife did not even file a case against them due to the fear. However, if the applicant returns he would definitely seek justice to punish the culprits.

    y.The applicant will face forced conversion to Islam and if he fails to convert he will be killed or even falsely charged for defaming Islam.

    z.The applicant fears he cannot get adequate protection from the authorities because the authorities are unwilling to help the minority ethnic group. Both the Awami League and the BNP would not protect minority religious groups because they do not want to antagonise their vote bank. Further, the Islamic extremists have connections with the authorities.

    i.The applicant also fears even if he moves to other parts of Bangladesh he would face harm because he would continue to practice his religion and continue to take steps to seek justice.  Accordingly he seeks protection in Australia.

13. He attached the following documents with his Statutory Declaration:

    -    Several photographs. The copies on the department file are too indistinct to discern the subjects of the photos.

    -    An article about the ‘Ramu violence’ attacks on Buddhists in 2012.

    Departmental Interview, 21 October 2016

14. The following is a summary of the claims and information the applicant provided in his Department Interview:

    a.The applicant came to Australia to attend a [conference].  It was a use just to come here.  He was a monk in India.  The monk chief in India organised the visa for the applicant.  He did not know anyone in Australia.  He went to the city where he met someone who said he knows someone from the applicant’s home [area]. He went to the address and stayed there.  He can’t recall the names of the people he lives with.

    b.[Mr C] helped the applicant fill in the Protection visa application form.  His new representative went through the form with the applicant. The applicant is satisfied it is accurate.

    c.The applicant applied for an Australian visa on his Indian passport, not his Bangladesh passport, because he had fled to India and took shelter in a monastery. He was favoured by an elderly monk who helped the applicant by organising a passport and visa for the applicant.  He had told the monk he was from Kolkata.  The monk’s name was [name].  The applicant spoke to him in Hindi because he knows a little Hindi.

    d.While he was in [Country 1] his mum was beaten and became disabled, so he fled to India.

    e.The identity in the Indian passport is false.  The applicant obtained a new Bangladesh passport from the consulate in Australia, soon after arriving.  He used a photocopy of his old passport to obtain the new one.

    f.The applicant was born in Cox’s Bazaar, in [Village 1].  This is where he grew up.  He has no siblings. His parents are alive.  They are in [Village 1].  They have always lived in the same house.  It is a mixed area but religions live in blocks there.

    g.The applicant’s parents-in-law live [close by].  The applicant has no other family in Bangladesh.  The applicant is married.  His wife lives with his parents.  He has two [daughters]. His wife’s name is [Ms A]. Her birth date is [year].  They married in 2009. They keep in contact. She is alright at the moment.

    h.He went to [Country 1] in 2012 for work as a [Occupation 1]. His temple and house were burned down and he sent some money to rebuild a house but the money was taken. The applicant left [Country 1] in 2014 because of the incident. He tried to resolve the issue. He complained to the elected councillor but there was no justice or help.  So he went to the police station but they asked for a bribe. He received a call that his mother had been beaten. She was taken to hospital. So he left the police station and went to the hospital.  He can’t recall when this was.

    i.The incident that caused him to leave [Country 1] was the burning down of the applicant’s temple and house and the money he sent being stolen.  The temple was next to his home.  It was burned down on [dates] September.  It was part of the Ramu attacks.

    j.When he returned in 2014 his house was just a temporary makeshift one.  The government provided a new temple.

    k.Nothing happened to the applicant in Bangladesh but he suspected something would so he moved to India.  Those people filed a case against the applicant with the police. He had a threat. Those people are the religious people from Jamaat and Shibir. They are [Mr B] and [Mr D] who lived close by.  They knew the applicant because he had a small [shop] and those people showed animosity to the applicant. They would randomly come to the shop and ask for money by extortion. They would slap and punch him. They would not pay for the [work] the applicant did for them.  It happened over a long period of time.  The applicant did not go to the police as that would make things worse.

    l.They filed a case against the applicant in 2014 after the applicant’s mother was beaten and the applicant went to the police.  They came to know somehow that the applicant went to the police.  They beat the applicant’s mother and filed a case against the applicant at the same time. They beat his mother because the applicant went to the police station to complain. He went to complain about them stealing the money he sent his father to rebuild a house.

    m.The applicant’s father was robbed on [date] October 2012.  His father did not go to the police because of fear. He was an elderly person and could get more trouble by complaining to the police.

    n.The case filed against the applicant is a false murder case.  A person complained that the applicant kidnapped his brother and hid him to demand ransom.  The person’s father was [Mr D]. He can’t remember the person’s name.  The police visited the applicant’s house to look for him.  He received a phone call that the police had come.  He first found out about the case because people in his area knew through rumours.  Within 3-4 days he left his place and went to Chittagong. He obtained an Indian visa within one week and went to India. He obtained an Indian passport through a broker who does these sorts of illegal things.

    o.In India people were suspicious of him because of his accent.  He explained his problem to them and they helped him. He used the Indian passport to try to get visas to other countries. He went to [Country 5] for a temple ritual.

    p.He returned to Bangladesh because his wife was raped. He went to Chittagong city to meet his family. After 7 days he said goodbye and returned to India.

    q.Because they could not find the applicant they raped his wife.  He hasn’t seen the culprit as he was not there.  It occurred at the applicant’s home.  They did not report to the police because of the shamefulness.  The nearest neighbour knew it happened.   Since then nothing has happened to the applicant’s family.  His family lives with caution.

    r.If he returns to Bangladesh the applicant will be killed because a case has been filed against him and the police will arrest him. Those people will collaborate with the police.  There is a warrant issued against the applicant.

    s.He returned to Bangladesh without coming to the notice of the authorities at the border.  He went through the checkpoints.  He used his passport to return.  It was a high risk but he wanted to see his wife for a last time after the incident.

    t.The applicant was in [Country 1] from 2012 to 2014. The Delegate put to the applicant that his passport suggests he was in [Country 1] from 2012 to 2013 and that he returned to Bangladesh in October 2013. The applicant responded he was in [Country 1] for 2 years.

    u.When interviewed in connection with his Visitor visa he said his wife was dead because Buddhist monks should not be married. The Delegate put to the applicant that the documents he submitted regarding his marriage were all issued after he came to Australia.  The applicant responded he has no older documents.

    v.The Delegate put to the applicant that the documents indicate he was present in the court to receive the documents although he was in Australia, which suggests the documents may be fraudulent.  He responded they are true.  He would not lie about his wife.

    w.The Delegate put to the applicant that the medical certificates for his mother and wife are all in English and that they both have ‘police case’ written on them. The applicant responded that he asked for an English copy. The Delegate put to the applicant that they are dated in 2014 and 2016 which suggests they were produced for the purpose of the applicant’s application and may be fabricated.  The applicant said they were sent to him.

    x.The Delegate questioned why the head monk would be so accepting of the applicant.  He responded that the monk would not know he had a Bangladesh accent.

    y.The Delegate put to the applicant that information suggests one of the other attendees at the conference lives at the same address as the applicant in Australia.  The applicant disputed that. After a ‘natural justice’ break the applicant said he forgot that he knew the person who he lives with.

1. At the Interview the applicant submitted a letter from a [psychologist], dated 20 October 2016, stating that the applicant:

   “reports symptoms of depression, anxiety and stress. Considering the traumatic and life threaten nature of his recent history these symptoms suggest a Post Traumatic Stress disorder. He reports having sleeping difficulties, nightmares, flashbacks, depressed mood, hyper-vigilance, attention problems, memory problems and physiological arousal. These difficulties are also noticed by those he has contact with here.”

   Delegate’s Decision

2. The Delegate noted that the applicant’s Bangladesh passports had been examined and found to be genuine.  The Delegate found that the applicant is a citizen of Bangladesh and that he is not a citizen of India. The Delegate accepted that the applicant is a Barua Buddhist from Cox’s Bazaar.

3. The Delegate did not accept that the applicant's wife was sexually assaulted in Bangladesh; that the applicant's mother was assaulted by Muslim extremists; that the applicant feared for his life when he departed for India; or that the applicant has been harassed or extorted by Muslim extremists in Bangladesh.

4. The Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in Bangladesh, or that he was owed complementary protection.

   Information to the Tribunal

   Pre-Hearing Submissions

5. On 28 January 2022 the applicant’s Agent provided the following written information to the Tribunal on the applicant’s behalf:

   -A summary of the applicant’s claims.

   -Country information regarding attacks on religious minorities in Bangladesh.

   -Country information regarding increasing Islamic militant activities in Bangladesh.

   -The Agent’s legal submissions

   -A further statement from the applicant. He adds information that he intends to seek justice in Bangladesh for the assault on his wife; and that the fall of Afghanistan to the Taleban has increased Islamic militancy in Bangladesh.

   -A copy of the applicant’s wife’s Bangladesh passport.

   -A copy of the applicant’s wife’s Bangladesh national identity card.

   -A letter from the Director of [Organisation 1], stating that he knows the applicant and knows that his house and property were burned down during communal violence in September 2012.  The Director visited the applicant the day after and witnessed what had happened.  In 2014 the Director also heard that the applicant’s wife was raped.

   -A photograph of the applicant’s wife lying on the floor.

   -A photograph of the applicant’s father lying on the floor with his hands tied.

   -A letter from the President of [Organisation 2] stating he has known the applicant since 2016 and that the applicant is an active member of the society.

   -An official letter dated 10 October 2016, stating that the applicant is a permanent resident of [a] District in Cox’s Bazaar and was secretary of [specified] Committee for a long time.  Out of envy Jamaat e Islami members crippled the applicant’s mother, injured his father, and raped his wife. The temple and the applicant’s house were burned.  A murder case was started against the applicant and there were threats to kill him.  He departed to India.

   -A letter dated 27 July 2021 from the applicant’s ‘advocate’ stating that the applicant has been accused of a false case and a warrant issued against him.  The lawyer advised the applicant not to sue regarding the rape of his wife because he is an absconding accused and has no witnesses.

   -Photographs of the applicant involved in Buddhist activities in Australia.

6. On 3 March 2022 the applicant’s submitted the following document to the Tribunal:

   -A letter from the applicant’s wife stating that the applicant is her husband and they have two daughters.  Their house was set on fire and her husband falsely accused of murder. Fundamentalists came to her house looking for her husband and when they could not find him they raped her.

7. On 31 March the applicant submitted several photographs of himself with his wife and children.

   Tribunal Hearing, 11 March 2022 and 7 April 2022

8. The applicant appeared before the Tribunal on 11 March 2022 and 7 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant attended school until [grade]. He then started [Occupation 1] work.  He eventually opened his own [shop].  He did pretty well in his business but some people started making trouble and he had to leave the country.

   b.His mother, father, brother, wife and two daughters are in Bangladesh.  His elder daughter was born in [year] and the younger one in [year].

   c.His parents, wife and daughters live with the applicant’s uncle because the family had some problems.  The applicant’s uncle lives in the applicant’s home town.

   d.The house the applicant lived in was burned.  They tried to build again but others didn’t let them.

   e.Before the applicant left Bangladesh he did not live anywhere.  He just went to Kolkata. He obtained a visa and caught a bus for Dhaka and then to India.

   f.The applicant left his home village on [date] March 2014.  Up until then he had been living in [Village 1].  He lived in his own home.  Now his parents live with his uncle.

   g.The applicant confirmed that until [March] 2014 he lived at his own home. 

   h.He came from [Country 1] and the house had been burned.  After it burned he went to live with his uncle.  Before he went to India his house was burned and he sent his wife and children to live with his uncle.  The applicant never lived with his uncle.

   i.The applicant is in contact with his family in Bangladesh.  Bangladesh is very bad at the moment.  It is pretty hard for the applicant’s family to go out. It is not fair or free.  It is hard for them to go out because people have been beating the applicant’s father and on the second time, his mother.  They also raped the applicant’s wife.

   j.The applicant’s children go to school in Bangladesh. The school is close to his uncle’s house and his uncle takes them there.

   k.The applicant’s father was beaten on [date] October 2012.  That was the only time the applicant’s father was beaten.

   l.The applicant’s mother was beaten on [date] March 2014.  That was the only time she was beaten.  From then she cannot walk by herself.

   m.The applicant is a practicing Buddhist.  Before the pandemic restrictions he attended temple in Australia.  He participates in Buddhist festivals.

   n.The applicant’s father obtained the applicant’s marriage documents in Bangladesh and sent them to the applicant by [courier].  The applicant does not know why the documents state that the applicant was present in Bangladesh at the time the documents were issued.

   o.The applicant does not have any wedding photos because his house was burned.  He has a couple of photographs of himself with his wife.

   p.The applicant obtained an Indian passport a year before he came to Australia.  The applicant used the passport to travel to other countries such as [Country 2], [Country 4], [Country 3] and [Country 6]. He went to those countries to see if he could settle in them but found it would too hard to do so and that there was no reasonable way to stay in them.

   q.In Australia he supports himself by working as [an Occupation].

   r.He does not want to return to Bangladesh because he is scared he may be killed.  There is a case against him in Bangladesh and he is scared those people will kill him or take him to jail.  The person is [Mr A].  He made a false case against the applicant that the applicant kidnapped and killed his brother.

   s.People beat the applicant’s parents so the applicant went to the police and reported them.  Later [Mr A] made a false case against the applicant.  The applicant does not know why [Mr A] did this. The applicant tried to make a case for his parents so [Mr A] may think that if he kills the applicant there will be no case.  The applicant tried to report a case to the police but the police would not take the report. This was in 2014.

   t.The applicant’s parents are in a hard situation. They have been beaten and his wife raped.  She was raped on [date] June 2014, not ‘2021’. ‘2021’ is a mistake in her letter.

   u.The applicant sent money home to rebuild his burnt house but people took the money from the applicant’s father so the house was not rebuilt.  After the applicant returned from [Country 1] he tried to stay in his country but could not, so he went to India.

   v.The applicant does not know how long he was in Bangladesh after he returned from [Country 1].  He went to [Country 1] in 2012. He was probably in Bangladesh for one and a half or one month when he returned from [Country 1].  He returned to Bangladesh from [Country 1] in 2014.

   w.The Tribunal put to the applicant that his passport indicates he returned to Bangladesh from [Country 1] in October 2013.  The applicant responded maybe he made a mistake.  He confirmed his passport was correct.

   x.The Tribunal put to the applicant that this means he was in Bangladesh for about five months before he left for India.  The applicant responded yes and he had been unsure when he was asked previously. 

   y.He lived in his home town in [Village 1] for the five months after he returned from [Country 1], before going to India.  He was in his uncle’s home. The Tribunal put to the applicant that he had stated that he never lived at his uncle’s house.  The applicant responded that he did not understand clearly at the time.  After he had said this he thought about it and he is pretty sure he was living with his uncle.

   z.The applicant had money to travel to other countries because his wife had some gold which the applicant sold.  He also borrowed money.  He used all her gold because he had to save his life.  The Tribunal put to the applicant that she had been the one attacked.  He responded that he and his wife are equal so he tried to save his life.  He did not try to save his family as it was not possible because of money.

   aa.The applicant did not return to Bangladesh in 2012 when his home was burned because he did not have money.

   bb.After the applicant returned to Bangladesh in October 2013 he went to the police because people had beaten his parent.  When he went to the police station the police didn’t take his report.  The applicant’s parent was beaten while the applicant was in [Country 1].  Three days after he returned to Bangladesh he went to the police station to report it.  The police did not take his report and he went home and they reported against him.

   cc.The applicant is not sure who beat his father.  He was beaten because the applicant had sent money from [Country 1] and they wanted the money but his father did not agree and they beat him and took his money.  The applicant went to the police station to report that unknown people beat his father.  He explained the history to the police but they did not accept his report.

   dd.[Mr A] then reported against the applicant. [Mr A] had created a business and he told people that the applicant tried to kidnap his brother and steal money from his shop.  The applicant does not know why [Mr A] did this.  Maybe there was something on his mind. The false case against the applicant was sent to Court.

   ee.Nothing else happened to the applicant while he remained in Bangladesh. 

   ff.The applicant then went to India.  Later they did not find the applicant and they raped his wife.  This was in June 2014.  Nothing else happened after his wife was raped.

   gg.The Tribunal asked the applicant when his mother was beaten.  The applicant responded it was on [date] March 2014 while the applicant was still in Bangladesh.  He went to the police station after his mother was beaten.  They did not accept the applicant’s report and then they lodged a false case.  There is just one false case against the applicant.

   hh.The Tribunal asked the applicant why he did not return to Bangladesh.  He responded that ‘they’ can find him and do what they want to him.  The Tribunal asked if he meant [Mr A].  The applicant responded yes, maybe other people can do things to him too.  The Tribunal asked who and the applicant responded that maybe [Mr A] can file another case against him. The applicant does not know why [Mr A] would do this.

   ii.The Tribunal put to the applicant that almost seven years has passed since he left Bangladesh so why would anyone still want to hurt him there.  He responded that he is an ordinary person.  They will try to kill him if he goes back. They cannot find him so they are not doing anything. He wants to bring his family here so they can be safe.  The Tribunal put to the applicant that his family seemed to have been safe for the past few years.   He responded that they are not safe because they live in his uncle’s house but can’t go out to visit people.  The applicant’s uncle can go out to visit people.  The applicant’s parents, wife and children go out, but with fear. They have to be careful all the time and look who might be coming to hurt them.

   jj.The Tribunal put to the applicant that the government reportedly increased security around the Ramu area, following the 2012 unrest.  The applicant responded yes, he is thankful for that.  But the media do not show that they are still beating the Buddhists.  The government tell people to beat Buddhists and break the temples.

   kk.The Tribunal put to the applicant that the government reportedly helped rebuild the temples and houses destroyed in the 2012 attacks in Cox’s Bazaars.  The applicant responded yes, they paid money in the media but they do something different behind the media.

   ll.The Tribunal put to the applicant that the government reportedly takes strong measures to prevent secular violence in Bangladesh. The applicant responded yes, but they don’t control what they say. The Government are telling people that the government is doing something.

   mm.The applicant had issues as a school child. He was threatened at school because he is from a minority community. He was always under physical and mental pressure so he decided to quit his studies and opened a [shop]. If he wanted to express his opinion at school his classmates would scream at him to stop.

   nn.He also had issues running his [business]. People would not pay him for his work or they would underpay him. So he decided to stop his [business] and go overseas.  The leaders of the community at the time were people who would not pay him. They would order the applicant to [do the work for them], and the bill would be 5000 to 10000 but they would say to take money from them later.  Then when the applicant would try they would tell him to come other days.  They would delay the payments and sometimes not pay at all. If he tried to negotiate with them they would beat him. The leaders were from different parties, both the Awami League and the BNP.

   oo.The applicant thinks if he tells the Tribunal their names then the Tribunal will have them investigated in Bangladesh and he and his family will be in further trouble. At a previous time there was some investigation and they carried out an attack on his home in which his family were injured.  He is afraid it will happen again.  It was at the time he sent money to his family and they snatched the money.  He only guesses there was an investigation. He will give their names but he is worried.  There is the son of [Mr F], and [Mr G].  They are both very dangerous. They are politicians. [Mr G] is with the Jamaat e Islami and [Mr H] is with the Awami League and was like a neighbour to the applicant.  They were the main people who would always underpay the applicant.  They would give the applicant 500 dhaka instead of 5000.  If the applicant asked for the right amount they would threaten him. They would scream at the applicant but they did not beat him.  They threatened the applicant that if he continued asking for his money they would give him a good lesson.  It was common for them to say things against his religion. 

   pp.There were also attacks on the Buddhist temples in the applicant’s home area.  People would break the Buddhist goddesses.

   qq.The applicant’s older brother lives in [Village 1].  The applicant is not in contact with his younger brother anymore. When the applicant was in [Country 1] his younger brother left Bangladesh and the applicant is not sure where he is.  The applicant has received no updates from him.  The applicant has no sisters.

   rr.The applicant’s elder daughter was born on [date].  His second daughter was born on [date].  The applicant married his wife on [date] February 2009 at his in-laws’ house.  His wife’s father’s name is [name], and her mother is [name].  The old couple in the photographs he submitted are the applicant’s parents.  His mother cannot walk.

9. The following is a summary of the information provided by the applicant’s wife, [Ms A], by telephone from Bangladesh, at the hearing on 7 April 2022:

   a.Her husband is [applicant’s name].

   b.She lives with her children and her in-laws, including her father-in-law, in [Village 1].  She has not lived anywhere else.  She has lived at her current home for about 10 years.  Before then she lived with her parents.

   c.She has not lived at her current home with her husband. She and he used to live together somewhere else.

   d.Her uncle-in-law owns her current home.  She has lived in it for ten years and before this she lived with her parents.

   e.She has two children.  They were born on [dates].  They both go to school.

   f.She has one brother. 

   g.She and her husband married in 2009.

   h.In Bangladesh she is scared for her life.  Her problems started in 2012 when their prayer place and home were burned.  Their home was not rebuilt. So they live in their uncle-in-law’s house.

   i.Her husband owned the home that was burned. No one was home at the time.

   j.Nothing has happened to her husband’s parents.

   k.When her husband returned from [Country 1] some incidents took place between the Mullah and her husband.  They wanted some money as bribes.  They beat her husband several times.

   l.Her husband left Bangladesh because the fundamentalists filed a false murder case against him because they wanted him to give money and he couldn’t give it to them.

   m.She had the trouble she wrote about in her statement.  She has not had any problems in recent years.  She is afraid because her husband is not home and if he returns they will put him in jail.

10. The following is a summary of the further information provided by the applicant at the hearing on 7 April 2022:

    a.[Mr A] lodged the false case against him. His wife didn’t know this. The applicant does not know for sure who [Mr A] is.  [Mr A] became Awami League when the Awami League came to power.  When BNP is in power he becomes BNP.  The Tribunal put to the applicant that he had previously stated that Jammat and Shibir extremists caused all the problems to him. The applicant responded that [Mr A] changes political affiliations all the time, when it is convenient to him.  The Tribunal put to the applicant that it would not seem convenient to change affiliation to Jamaat e Islami given it is a prohibited organisation.  The applicant responded that honestly he never saw [Mr A], he just knew about [Mr A] when [Mr A] filed a case against him.  [Mr A] falsely alleged that the applicant kidnapped his nephew and demanded money.  It was a made up story.  The applicant is not sure why [Mr A] did this, maybe he was paid to do it.  The applicant reported the beating of his father to the police so maybe they wanted to put pressure on the applicant.

    b.The Tribunal put to the applicant that he had previously stated that the people who filed the case against him were ‘[Mr B]’ and ‘[Mr D]’ not [Mr A].  The applicant responded that they were witnesses he thinks, he can’t remember.

    c.The Tribunal asked the applicant how he was able to return to Bangladesh from India in June 2014 if there was a case and warrant against him.  He replied that warrants are not sent to the border areas otherwise how would the big authorities cross.

    d.People knew the applicant left Bangladesh in March 2014.  The Tribunal asked the applicant why his wife would be attacked in June 2014 if it was known he had left Bangladesh. He responded that they looked for him, did not find him and they raped his wife.  They had an evil intention and knew the applicant would not be at home and they could take the opportunity.

    e.The Tribunal asked the applicant why he left his family to further harm in Bangladesh. He responded that he went to India to survive, then to [a country].  He wanted to take his wife and children but it was not possible so he decided to move to Australia.  He was accused and there were allegations against him.  If he took his family with him they would be involved as well.

    f.The Tribunal asked why he had stated he would be forced to convert to Islam.  He responded that this is not a concern.  He fears return because of the false case against him. On return to Bangladesh he fears his enemies will kill him.

    Country Information

1. DFAT’s most recent Country Information Report on Bangladesh, published in August 2019 contains the following:

   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. 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. 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.

   State Protection

   Political interference and corruption operate to constrain the rule of law in Bangladesh. While some state institutions continue to work to enforce the fundamental rights of citizens, insufficient funding and a lack of political support hamper their efforts. Other organs of state protection, including the military, police, and lower courts, can be heavily politicised, under-resourced, and subject to corruption. DFAT assesses that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.

   …

   Professionalism varies across the police. The national system of policing can be effective, and the force has often demonstrated an ability to track down suspects across the country. Political and bureaucratic interference is a significant impediment to police efficiency, however. Both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests. Police systems are heavily bureaucratic. While senior officers are relatively well trained and well paid, and occupy important positions within the bureaucracy, those in lower ranks are often poorly paid, trained and equipped. Low salaries encourage some police to supplement their income through demanding bribes from members of the public. The US State Department has consistently reported that public distrust of police and security services deters many Bangladeshis from approaching government forces to seek assistance or to report criminal incidents.

   Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. Investigations into police misconduct are internal, and generally lack either transparency or credibility. DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.

2. The latest US DoS report on Religious Freedom in Bangladesh, published in May 2021, contains the following:

   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 to 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 deploy law enforcement personnel at religious sites, festivals, and events considered possible targets for violence.

   … According to leaders in the Hindu community and media, in November, a crowd of several hundred looted, vandalized, and set on fire Hindu family homes in Cumilla District after rumors spread that local Hindu residents supported Charlie Hebdo’s publication in France of caricatures of the Prophet Mohammed, initially published in 2015 and reprinted in September…. The Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) said communal violence against minorities continued throughout the year, including during the COVID-19 pandemic.

   … Religious studies are compulsory and are part of the curriculum for grades three through 10 in all public government-accredited schools. Private schools do not have this requirement. Muslim, Hindu, Buddhist, and Christian students receive instruction in their own religious beliefs, although the teachers are not always adherents of the students’ faith.

   … The government continued to place law enforcement personnel at religious sites, festivals, and events considered potential targets for violence, including the Hindu festival of Durga Puja, celebrations during the Christian holidays of Christmas and Easter, and the Buddhist festival of Buddha Purnima. During the year, the government assisted places of worship implement COVID-19 precautions during major festivals.

   President Abdul Hamid continued to host receptions to commemorate each of the principal Muslim, Hindu, Buddhist, and Christian holidays and emphasized the importance of religious freedom, tolerance, and respect for religious minorities. In January, the Election Commission rescheduled local Dhaka elections after students and faith groups protested scheduling the election during a Hindu festival.

   …Public outreach programs encouraging interfaith tolerance among religious groups continued during the year, including a virtual roundtable held on November 24 that brought together leaders from the Buddhist, Hindu, Christian, and Muslim faiths. During the discussion, participants discussed reports of rising communal attacks against religious minorities and how the United States could assist in protecting religious minorities.

3. In November 2021, the Asian Independent reported on an attack on a Buddhist temple in Bangladesh:

   ‘Members of five tribal organisations of Tripura held a protest on Monday in front of Bangladesh Assistant High Commission here condemning the attack and torching of the Katakhali Forest Buddhist Monastery under Teknaf in Cox’s Bazar district in the neighbouring country.

   A joint statement of the five tribal organisations on Monday said that at least 8 indigenous persons, including women, belonging to the Chakma community were injured during the attack
   on October 24.  These organisations submitted a memorandum to Bangladesh Prime Minister Sheikh Hasina through the Assistant High Commissioner Mohammad Jobayed Hosen.

   The memorandum said that the attack on the Katakhali Forest Buddhist Monastery took place following a series of incidents of vandalism and arson of Hindu temples, Durga Puja pandals and attacks on Hindu minorities from October 13, which shows that the government of Bangladesh has not taken any measure to ensure protection of the religious minorities in the country.[2]

   [2] The Asian Independent, ‘Attack on Buddhist monastery in B’desh triggers protest in Tripura’, 2 November 2021

4. The 2020 USCIRF IRF report on Bangladesh noted the following:

   In recent years, a number of local administrative and police officials have demonstrated a general apathy toward promoting religious tolerance, strengthening protections for religious minorities, properly investigating crimes, and ensuring accountability for attacks against religious minorities.

   … The apathy, and at times complicity, of local officials for discrimination and attacks against minorities has created a culture of impunity for non-state actors to continue to resort to violence, especially with regard to land grabs or personal disputes. Anti-minority bias and corruption among local officials is compounded by issues of low capacity that continue to plague law enforcement institutions in many parts of the country.[3]

   [3] USCIRF, 2020, ‘Country update: Bangladesh’, 11 May, p.5.

5. Odhikar’s 2021 Human Rights Report for Bangladesh states:

   In 2021, citizens belonging to ethnic minority communities were killed and there were attacks and looting of houses, businesses and places of worship belonging to religious minority groups. During this period, houses and places of worship of the citizens of the Hindu community were vandalised and looted by miscreants. Such incidents continue to occur as past incidents of such violence have not been investigated or tried and have been politicised instead.[4]

   [4] >

   A November 2021 Lowy Institute report states:

   Last month, a series of attacks on religious minorities in Bangladesh shook the country’s typically pluralist outlook. The violence began after a Facebook post from Comilla District in the southeast of the country alleged that the Quran, the holy book for Muslims, had been desecrated at a Hindu Durga Puja festival site. The allegation was broadcast live and rumours quickly spread.

   According to a local newspaper report, more than 100 Hindu temples, festival sites, shops, and homes were attacked. Seven people were killed, and a Buddhist monastery at the country’s southwest was also set on fire. Police later arrested a man they said had confessed to having deliberately left a copy of the Quran at the Hindu festival site. The attacks also exacerbated religious tensions in neighbouring India, making international headlines. People in favour of India’s controversial citizenship act, which has been dubbed an anti-Muslim law for offering amnesty to non-Muslim irregular immigrants from neighbouring countries, cited the attacks in Bangladesh as a justification for the law.

   Realising its reputation for protecting minorities was on the line, the Bangladeshi government quickly arrested more than 400 people and filed 72 cases. The Foreign Affairs Ministry reportedly sought to reassure foreign missions that the government was committed to preventing attacks on minorities.

   However, almost every year since 2012 religious minorities have been attacked somewhere in Bangladesh after online posts promulgating false allegations. The pattern runs like this: rumours begin within a local community that people from a minority background have defamed Islam, and such orchestrated “fake news” quickly spreads online to incite violence against minorities.

   While Facebook remains a key platform for inciting hate and violence towards minorities in Bangladesh, three other factors are important to understand why these deadly rumours attract mobs who then attack minorities for alleged blasphemy.

   Firstly, studies in recent years have identified shifting trends in Islamic majoritarianism in Bangladesh where blasphemy and atheism are deemed to have deadly implications. Atheist bloggers have been murdered by violent Islamists, for example, and several “blasphemous” writers, cartoonists, publishers and bloggers now live in permanent exile.… The recent spasm of violence against minorities in response to fake blasphemy allegations must be seen as the manifestation of social trends where minorities are deemed as inferiors to many because of their faith.[5]

   False Cases

   [5] Lowy Institute, 2021, ‘Minorities under attack in Bangladesh’, 18 November.

6. There are many available reports regarding the use of false cases in Bangladesh.  For example, VOA reported in 2019 of allegations that thousands of cases registered by police were fictitious, and that:

   In Bangladesh, police can file criminal complaints against anyone without having to provide any evidence, whereas charging them officially with a crime takes place in court and requires a level of evidence that the person charged was likely to have been involved in the crime.”[6]

   [6] VOA, 2019, “Bangladesh police accused of harassment with fake cases”, 13 March.

7. A recent detailed Canadian IRB report contains the following regarding police cases in Bangladesh:

   1. Overview

   According to BDLAWNEWS.COM, a Bangladeshi legal news portal, the Code of Criminal Procedure and the Penal Code are the "two main criminal laws of Bangladesh" (BDLAWNEWS.COM 23 Aug. 2020). Sources note that these laws are based on the Indian Penal Code of 1860 and the Code of Criminal Procedure, 1898 for British India (US 1989, 242; BDLAWNEWS.COM 23 Aug. 2020), and that aside from the changes in title and "minor modifications," the documents "more or less remained" the same (BDLAWNEWS.COM 23 Aug. 2020). In correspondence with the Research Directorate, a professor of law at a university in Bangladesh noted that the Code of Criminal Procedure is applicable throughout the country and creates a uniform system (Professor at a university in Bangladesh 1 Dec. 2021).

   2. Requirements and Procedures to File a Complaint with the Police

   According to the Code of Criminal Procedure, 1898, a complaint is defined as "the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer" (Bangladesh 1898, Sec. 4(1)(h)). According to the Professor, when a person makes a complaint, they are reporting a "possible offence" to the Magistrate who "will hear the complainant, call witnesses if necessary and then order the police to investigate" (Professor at a university in Bangladesh 1 Dec. 2021). In correspondence with the Research Directorate, a law professor at the University of Dhaka noted that complaints "can only be made before a magistrate"; however, information can be provided to the police which can lead to the police registering an FIR and investigating the case if the complaint is regarding a cognizable offence (Professor at the University of Dhaka 29 Nov. 2021).

   The Professor at the University of Dhaka indicated that "serious offences" are considered cognizable offences (Professor at the University of Dhaka 29 Nov. 2021). According to a report by the International Federation for Human Rights (Fédération internationale pour les droits humains, FIDH) on enforced disappearance in Bangladesh, under Bangladeshi law cognizable offences "include serious crimes such as rape, murder, theft or kidnapping" (FIDH Apr. 2019, 55). Similarly, a report by the UNDP on criminal justice in Bangladesh indicates that cognizable offences include murder, robbery, rape, theft, rioting, and assault (UN Nov. 2015, 54). The same source states that police can investigate cognizable offences without an order from a magistrate (UN Nov. 2015, 54). The FIDH report indicates that police officers must open investigations in cases of cognizable offences (FIDH Apr. 2019, 55). According to the Professor at a Bangladeshi university, for cognizable offences the police can begin investigating "immediately" (Professor at a university in Bangladesh 1 Dec. 2021). Sources further note that arrests can be made regarding cognizable offences without permission from a judge (FIDH Apr. 2019, 55) or without a warrant (Professor at the University of Dhaka 29 Nov. 2021; UN Nov. 2015, 54). Section 54 of the Code of Criminal Procedure provides that

   1.Any police-officer may, without an order from a Magistrate and without a warrant, arrest-
   firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

   …

   The Professor at a Bangladeshi university stated that the procedure for filing an FIR is as follows: an FIR is lodged at a police station; the informant tells the police who recorded it; the informant reads and verifies that the information was recorded correctly; and then both the recording police officer and the informant sign the form, which is then given a registration number and recorded in a registrar (Professor at a university in Bangladesh 1 Dec. 2021).

   According to the Professor at the University of Dhaka, anyone can provide information orally or in writing to the police regarding a cognizable offence (Professor at the University of Dhaka 29 Nov. 2021). Sources note that information provided orally (Professor at the University of Dhaka 29 Nov. 2021) or orally or written (Law Help BD 29 July 2019) is written down by the officer and signed by the informant (Law Help BD 29 July 2019; Professor at the University of Dhaka 29 Nov. 2021). Law Help BD, a Bangladeshi online legal education platform (Law Help BD n.d.a), which is edited by an editorial board made up of lawyers and law students (Law Help BD n.d.b; Law Help BD n.d.c; Law Help BD n.d.d), states that after the informant signs the FIR, the police officer completes B.P. Form Number 27 (Law Help BD 23 July 2019). According to sources, the process is the same across the country (Professor at the University of Dhaka 29 Nov. 2021; Professor at a university in Bangladesh 1 Dec. 2021).

   The Professor at the University of Dhaka noted that in practice "most" FIRs are investigated (Professor at the University of Dhaka 29 Nov. 2021). Section 157 of the Code of Criminal Procedure provides the following regarding why an FIR would not be investigated:
   …

   1.when any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police- station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

   2.if it appears to the officer in charge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

   … (Bangladesh 1898)

   According to the Professor at the University of Dhaka, FIRs "can contain false information" but they had "never heard of any fraudulent FIR[s]" (Professor at the university of Dhaka 29 Nov. 2021). The same source further stated that, "in some cases" through collusion between the individual and the courts copying department officials, fraudulent or forged certified copies of FIRs "can" be obtained (Professor at the university of Dhaka 29 Nov. 2021). According to a country report on Bangladesh by the Australian Department of Foreign Affairs and Trade (DFAT), "[c]orruption is widespread in the courts and the police" which makes it "possible" to obtain fraudulent documents and the court and police systems "are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents" (Australia 22 Aug. 2019, para. 5.44). For further information on the availability of fraudulent documents in Bangladesh, see Response to Information Request BGD200853 of December 2021.

   4. Procedures for Filing Police Complaints for Those Who Have Been Falsely Accused of a Crime

   According to the Professor at the University of Dhaka, "[t]here are many cases of false accusations" but there is "no official/research data available on the extent the problem" (Professor at the University of Dhaka 29 Nov. 2021). Section 193 of the Penal Code provides that:

   Whoever intentionally gives false evidence in any stage of judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

   and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

   … (Bangladesh 1860)

   Section 211 of the Penal Code provides the following:

   Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

   and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment] for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Bangladesh 1860, footnotes omitted)

   Section 279 of the Police Regulations, Bengal provides that

   1.Whenever a case reported to the police is found after investigation to be maliciously false, the investigating officer shall, if evidence is available for prosecution of the complainant under section 182 or 211, Indian penal Code, submit to the Magistrate, through the Circle Inspector a formal complaint, attached to his final report, to enable the Magistrate to take cognizance of the case under Section 190, Code of Criminal Procedure [under proviso (aa) to section 200 of that Cod [sic] the Magistrate need not examine the complainant]. The investigating officer shall at the same time furnish the Court officer with a brief of the case.

   2.Prosecutions against complainants in false cases shall be instituted only when the charges made are deliberately and maliciously false and not when they are merely exaggerated.

   3.The Circle Inspector shall, after satisfying himself that the complainant is well founded and that all possible enquiries have been made to collect the requisite evidence, forward the complaint to the Magistrate.

   4.If a complaint case referred to the police for investigation is found to be maliciously false, the investigating officer shall submit, together with the final report, a report to the Magistrate through the Circle Inspector giving the grounds on which the vase [sic] is held to be false and recommending as to whether the complainant should be prosecuted. (Bangladesh 1943)

   4.1 Police Corruption

   According to Bertelsmann Stiftung's Transformation Index (BTI) 2020, which "assesses the transformation toward democracy and a market economy as well as the quality of governance in 137 countries," "[c]orruption remains endemic" in Bangladesh, with the police force viewed "as the most corrupt branch" (Bertelsmann Stiftung 2020, 2, 10). The same source further notes that the police were employed by the government to file "false" cases against supporters of the opposition party and ordinary citizens, "many of whom had to pay bribes in order to escape prosecution in false cases" (Bertelsmann Stiftung 2020, 3).

   … Freedom House states that "[s]uspects are routinely subject to arbitrary arrest and detention, demands for bribes, and physical abuse by police" (Freedom House 3 Mar. 2021, Sec. F2). According to the US Department of State's Country Reports on Human Rights Practices for 2020, "[a]rbitrary arrests occurred," and human rights activists "claimed police falsely constructed cases to target opposition leaders, workers, and supporters" and the government used the police to "crack down on political rivals" (US 30 Mar. 2021, 9).

   According to an HRW report on violence against girls and women in Bangladesh - which is based on 50 interviews, including 29 interviews with women from six of the eight divisions of Bangladesh who are survivors of gender-based violence, and interviews with women's rights activists, lawyers, and academics - in "many cases" women told HRW that police "required" a bribe before they would complete an FIR and "[s]ome" survivors reported that even when paying bribes, "they heard that the accused was paying more, influencing the investigation in their favor" (HRW 29 Oct. 2020, 2, 39–40, 41).

   An article from the Daily Star, "a non-partisan" (The Daily Star n.d.) daily English-language newspaper in Bangladesh, notes that police headquarters introduced a "complaint cell" of the Inspector General of Police (IGP) so that anyone can call or email to "lodge [a] complaint against misdeeds and mismanagement of the law enforcers" (The Daily Star13 Nov. 2017). An article from the Business Standard, a news platform based in Dhaka aimed at promoting "good governance and best practices in business and economy" (The Business Standard n.d.), states that from November 2017 to 21 August 2019, the IGP's complaint cell received 3,493 complaints about the police, including the "most common allegations" of "[m]anipulation of cases, detention of people without any ground, intimidation, extortion, bribery and corruption in various forms" with "around" 1,000 "low-ranking" police officers found guilty of "various misdeeds" and with "departmental action" taken against them (The Business Standard 1 Sept. 2019). According to an article from the Independent, a daily English-language Bangladeshi newspaper, "[o]n average, over 12,000 police personnel are handed punishment every year on various charges including misconduct and corruption" (The Independent 22 Jan. 2020).

   5. Sharing of Information by the Police with Other Law Enforcement Agencies

   The Police Regulations, Bengal provide that

   1.The first page of the first information report, viz., that signed. scaled [sic] or marked by the complainant or informant under section 54. Code of Criminal Procedure shall be treated as the original. It shall be sent without delay to the District Magistrate or the Sub- divisional Magistrate. as the case may be, through the court officer. The first carbon copy of the first information shall be sent to Superintendent. The second copy shall be kept at the police-station for future reference. A copy not carbon) shall be sent to the Circle Inspector direct at the same time as the original and the first carbon copy are dispatched to the Court Officer and the Superintendent. In subdivision where there is a Sub-divisional Police Officer two copies of the first information report shall be made out on ordinary papers, by the carbon one [sic] for the Sub-divisional Police Officer and the other for the Circle Inspector.

   … (Bangladesh 1943, Sec. 246)

   …According to the Professor at the University of Dhaka, there is no national database with "all" FIRs; FIRs are produced in hardcopy and when an FIR is created, there are also two carbon copies produced with the first copy of an FIR being sent to the magistrate court in the district, the second copy to the chief police officer in the district, and the third copy kept at the police station (Professor at the University of Dhaka 29 Nov. 2021). The same source further stated that "sometimes" the police give the informant an "informal copy" of the FIR and an informant can also apply to the court for a certified copy indicating "'in the object for which the copy is required'" and if the court grants the application, the applicant upon payment of "prescribed fees" will receive a certified copy (Professor at the University of Dhaka 29 Nov. 2021). The source also noted that a third-party can obtain an FIR from the court on behalf of the informant when the third-party is able to "satisfy the court with 'good reasons'" (Professor at the University of Dhaka 29 Nov. 2021). The Professor at a Bangladeshi university stated that police officers from one station can investigate or make an arrest on behalf of police in a different jurisdiction upon request from the police in the other jurisdiction if the accused is located in that jurisdiction (Professor at a university in Bangladesh 1 Dec. 2021).[7]

   [7] Research Directorate, Immigration and Refugee Board of Canada, “Bangladesh: Requirements and procedures to file a complaint with the police, including reports of false accusations; First Information Reports (FIRs), including registration and whether these reports automatically lead to an investigation; content, appearance and security features of FIRs; whether cases of false accusations are heard in court; ability of the police to share information with other law enforcement departments and/or agencies (2019–December 2021)”, BGD200855.E, OF CLAIMS AND EVIDENCE

1. The applicant submitted his Bangladesh passports. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Bangladesh. The Tribunal assesses the applicant’s claims against Bangladesh as his country of nationality and receiving country.

2. The Tribunal accepts that the applicant’s Indian passport was obtained unlawfully and that he is not a citizen of India.

3. The applicant claims to have experienced harm in Bangladesh because he belongs to a minority religion, Buddhism, and was mistreated at school, targeted for extortion, his home burned, his money stolen from his family, his family seriously assaulted, and a false murder case was lodged against him. 

4. He claims to fear being arrested and jailed and possibly killed due to the false murder case against him, if he returns to Bangladesh.

   Credibility

5. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

6. 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.

7. 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’. 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.

   The applicant’s wife

8. Some doubts arise about the applicant’s claim to be married because he stated on his Visitor visa application that his wife was deceased. He explained this was done because he was trying to present as a Buddhist Monk to obtain the visa, so therefore could not be known to be married.

9. The marriage documents submitted by the applicant also contain some questionable detail in that they state the applicant was present in Bangladesh when the documents were issued, despite him being already in Australia at the time.

10. The applicant has however submitted photographs of himself with his wife and two daughters.  His wife also gave oral evidence to the Tribunal which seemed to reflect that she and the applicant had a genuine marriage, that she had a natural familiarity with him and that she and their daughters lived with his in-laws. 

11. The Tribunal considers there is a possibility that the incorrect details in the applicant’s marriage documents may be the result of a clerical error, or that the applicant’s advocate or father in Bangladesh were representing the applicant at the time of the issue of the documents.  It remains unknown whether the errors are because the documents are fraudulent or merely a result of an administrative error.  The Tribunal can’t be confident that the errors in the documents indicate that the applicant and his wife are not married.

12. In view of the applicant and his wife’s satisfactory oral evidence, the Tribunal therefore accepts the applicant is married to his wife, and they have been married since 2009.

    The applicant’s religion

13. Since arriving in Australia the applicant has maintained that he is Buddhist.  His surname is a common Buddhist name in Bangladesh.  He also provided letters from Bangladesh and Australian Buddhist representatives confirming that the applicant is a Buddhist.  He further submitted numerous photographs showing him participating in Buddhist activities in Australia.

14. In view of the satisfactory evidence before it the Tribunal accepts that the applicant is Buddhist.

    Problems at School

15. The applicant provided varying descriptions of the claimed mistreatment and discrimination he faced at school.  In his oral evidence at hearing he described it as being forced to suppress his opinions because of bullying and intimidation from Sunni Muslim classmates, who were the majority at the school.  The available country information supports the possibility of this type of behaviour occurring at school in Bangladesh.  The applicant also gave his oral evidence in a simple, straightforward yet emotional way which was also persuasive. He explained how the treatment he faced at school caused him to leave school at an early age to start his [work].  The Tribunal therefore accepts that the applicant was bullied and intimidated during his brief school years because he belonged to a minority religion.

    [Occupation 1] Work

16. Prior to the hearing the applicant had attributed all of the threats, problems and attacks against himself and his family to members of the Jamaat e-Islami and Shibir organisations.  However at his hearing he changed the identities to several named individuals with various and sometimes changing political affiliations.  Once the applicant was assured about privacy concerns he was quite forthcoming at hearing and readily provided the names and descriptions of different antagonists, without hesitation.  His description of the people, their backgrounds and their actions was reasonably cohesive and plausible. The Tribunal prefers his evidence at hearing to the more generalised and sensationalised written testimony he provided at the primary level.

17. The applicant gave evidence at hearing that two prominent leaders in his local community would often use their position to underpay or not pay the applicant for the [work] he did for them.  He explained that as a member of a minority religion he was not able to prevent them from doing this, or even to challenge them without threat of harm.

18. The available country information highlights there is a substantial level of societal discrimination against, and mistreatment of, religious minorities in Bangladesh. It also discloses that there is widespread corruption in Bangladesh, including among the police forces, so that the powerful can act with some impunity.

19. The applicant’s description of the two men’s actions in not paying, under paying, or delaying payment for his work was detailed and expressive. 

20. The Tribunal accepts that two prominent people in the applicant’s locale took advantage of the applicant’s minority religion status by not paying, underpaying, or delaying payment for his services.

    The burning of the applicant’s home.

21. The applicant’s evidence regarding the burning of his home in Cox’s Bazar during the September 2012 communal riots was rather confused and inconsistent in significant aspects. 

22. In his written statement submitted in October 2016 he wrote of his home being burned while he was working in [Country 1], and two subsequent attempts to rebuild the home.  It is not clear if the home was liveable or destroyed but he makes two references to his family being later attacked at his home.  He makes no mention of his family or himself having to live in a relative’s home.

23. At his Department interview he spoke of his parents always living in the same house in Bangladesh, and his wife living with them.  He also spoke of returning from [Country 1] to a ‘makeshift house’ on his property, and of the police visiting his home in 2014.  Again he made no mention of himself or his family having to move to a relative’s home after the burning of his house.

24. At his Tribunal hearing the applicant gave further conflicting evidence.  He initially stated that his parents, wife and daughters lived with the applicant’s uncle as their house had been burned and they were not successful in rebuilding it.  He also stated quite implausibly that between his return from [Country 1] and his departure to India he “did not live anywhere”.  He then changed his evidence to state he lived at his own home before he went to India in March 2014 and that he did not live anywhere else.  He added further confusion by then stating that he went to live with his uncle after his house was burned but then contradicted this to state he sent his wife and children to live with his uncle but he never lived with his uncle. Later in the hearing he changed his evidence again to state he had lived with his uncle after his return to Bangladesh.

25. The applicant’s wife also presented confused evidence as to where she had lived in Bangladesh, and if she had ever lived at the house which the applicant claimed was burned.   

26. The Tribunal considers that the evidence by the applicant and his wife was too unclear and confused.  If the applicant’s home was burned in the 2012 so that his family could no longer live there, and he could not live there on his return in 2013, then this should be a very simple matter to convey clearly.  There is no reason why so much confusion should be introduced into this claim if it had actually occurred.

27. Given the poor quality of the applicant’s evidence the Tribunal does not accept that the applicant’s home was burned down during the 2012 communal riots in Cox’s Bazar. 

28. The Tribunal does however accept that Buddhist homes and temples in the applicant’s neighbourhood [were] burned during the riots as there is a great deal of country information which describes this occurring.

    Stolen Funds and beating of the applicant’s Father

29. The applicant claimed that he sent money to his family in Bangladesh after his home was burned in late 2012, then local powerful Muslims took the money from the applicant’s father and beat him.

30. Given the applicant was working in [Country 1] and was responsible for supporting his family in Bangladesh the Tribunal accepts that he would send money to his family from [Country 1].

31. Given the Tribunal does not accept the applicant’s home was burned the Tribunal does not accept that the money the applicant sent was to rebuild his burned home.

32. Extortion is reportedly a common practice in Bangladesh with members of minority groups being additionally vulnerable to extortion from the more powerful groups.  The applicant has been reasonably consistent that the money he sent to his father was demanded and taken by local Muslims some time after September 2012.  Given it would be known that the applicant was working overseas and would be sending money home, and that he and his family belonged to a minority group, the Tribunal considers it plausible that his family would be seen as an appropriate target for extortion by some in the local community.  The claimed event happened almost ten years now and the applicant’s details about it are understandably brief, given the passage of time and the fact he was not present in Bangladesh at the time. In the absence of any contradictory evidence the Tribunal considers the applicant should be given the benefit of the doubt and it accepts that the applicant’s family were extorted of money that the applicant had been sending them from [Country 1].

33. The Tribunal claimed that his father was also beaten for initially refusing to give the money to those demanding it.  Again the applicant was not present in Bangladesh at this time so his description of the event is understandably brief. There is no direct evidence that the incident occurred.  The Tribunal notes that an unexplained photograph of the applicant’s father lying on the ground with his hands tied has been submitted but it remains unclear as to what this relates to and why he would be so photographed before being helped or even having his hands untied.  This indicates it may be a staged photograph.  Given the applicant’s evidence the incident was not reported to the police at the time the reason for the photograph, the identity of the photographer, and the apparent lack of assistance provided all remain unclear and raise concerns.  The Tribunal therefore does not accept that the photograph is of a genuine incident of assault upon the applicant’s father.

34. However it is plausible that the applicant’s father may initially refuse an extortion attempt and that the extortioners may hit him as a result.  There is also no evidence to indicate that this did not occur. The applicant has consistently maintained that his father was hit for refusing to give Muslim extortionists money in October 2012.  The Tribunal cannot be confident the assault did not occur.  Therefore it gives the applicant the benefit of the doubt that his father was hit by Muslim extortionists for initially refusing to hand over money to them, sent by the applicant, in October 2012.

    Assault on the applicant’s Mother

35. The applicant’s evidence about the claimed assault upon his mother, at a time he was present in Bangladesh, was quite confused and contradictory. 

36. She does appear in photographs as having a disability and the Tribunal accepts that she has suffered a serious injury.  However the cause of the injury remains uncertain and the Tribunal has substantial doubts that it was a result of the applicant’s complaint to the police.

37. The applicant initially claimed that he returned to Bangladesh from [Country 1] in February 2014, his family was harassed by the Jamaat and Shibir people, so he tried to lodge a complaint at the local police station.  The police officers informed Jamaat activists that the applicant had done this so Jamaat and Shibir Islamic extremists then went to the applicant’s home and beat his mother with bamboo sticks so that she became permanently disabled.

38. At his Department Interview he stated that while he was at the police station lodging a complaint he received a call his mother had been beaten and was in hospital so he left the police station and went to the hospital.

39. At his Tribunal hearing the applicant conformed his passport was correct and he had returned to Bangladesh in October 2013 not in early 2014.  He also stated that he went to the police station to complain about the treatment of his father and theft of his money “three days after” his return.  When the police did not take his report he returned home and the police then informed upon him.  This would mean that the applicant’s mother was not beaten until about five months later.

40. The above versions of the applicant’s claim are very different in significant elements which are not minor inconsistencies. 

41. The Tribunal accepts the possibility that the applicant would complain to the police about the mistreatment of his father and the theft of his money and that the applicant would do so shortly after his return to Bangladesh from [Country 1].  However as the injury or injuries to the applicant’s mother reportedly occurred in March 2014, some several months later, the Tribunal does not accept that it was a result of the applicant’s complaint to the police.

    False murder case 

42. The applicant has claimed that after his mother was injured on or about [date] March 2014 a false case accusing him of kidnap and murder was filed against him on [date] March 2014 at the local police station, the police looked for him and he went to Chittagong and then departed Bangladesh to India on [date] March 2014.

43. This aspect of the applicant’s claims is somewhat strange.  At his Department interview he initially named two people as the ones who filed the case against him.  One of the persons he named was actually named as the deceased victim in the police documents.  He later stated he did not remember who had lodged the false case against him.  At his Tribunal hearing he remembered it was ‘[Mr A]’ but also stated that he did not know who [Mr A] is or why he lodged the false case against the applicant.  He then described [Mr A] as a person who changes political affiliations at will but also as someone the applicant doesn’t know.

44. Given the applicant claims to not know the person who lodged the FIR or why it was lodged it is not easy to test the credibility of this claim.

45. On the one hand the country information highlights the widespread use of false cases in Bangladesh and the ease of registering one by an informant.  The FIR and other paperwork submitted by the applicant also contain substantial detail of a type which might be expected to appear on a genuine FIR and police paperwork.  Therefore the documents may be copies of a genuine lodged FIR, Charge Sheet and Warrant. They also might amount to a false case against the applicant.  They may alternatively represent a genuine accusation of wrongdoing against the applicant.

46. If there is a genuine allegation against the applicant that he kidnapped and murdered a former employee then the facts described in the FIR seem highly implausible.  There is no stated or apparent reason why the accused (the applicant) would kidnap and hold to ransom a former employee just because the employee resigned due to not wanting to engage in unlawful money exchange practices. The amount of ransom demanded is a very high amount so it is questionable why a person from a potentially very wealthy family, that could afford to pay such a ransom, would be working for the accused/the applicant.  The description of events strongly suggests that the accused/applicant returned the victim quite quickly without waiting for payment of the ransom or any negotiations, which appears to completely defeat the purpose for kidnapping the victim.  Further it would be ridiculous for someone in a local community to kidnap a person for ransom if their identity is readily known, given the outcome of such actions would lead to inevitable arrest and prosecution.  In view of these issues the Tribunal considers that the FIR, Charge Sheet and Warrant probably do not represent a genuine allegation against the accused/applicant.

47. The other possibility that the documents do reflect a false case lodged against the applicant is also doubtful.  There is no obvious or potential goal or advantage to anyone in lodging a false case against the applicant. He has claimed that it was a reaction to him trying to complain to the police about the mistreatment of his father and the theft of his money in late 2013.  At hearing he also made a vague reference to it being triggered by his complaint to the police about the beating of his mother on [date] March 2014.  However neither hypothesis makes much sense given his evidence that the police refused to take his complaint or complaints and were siding with his enemies.  His attempted complaints to the police therefore had no adverse impact upon them.  There is also no indication that the false case was lodged as an attempt to extort money from the applicant or gain his property.  According to the available country information false cases are often used against political opponents in Bangladesh however the applicant has not claimed this to be the case for him and nor has he claimed to have been involved in politics at the relevant times.

1. On the other hand the applicant has consistently maintained that a false case has been lodged against him triggering his exodus to India.  The Tribunal notes that he appears to have not been employed in India and to have travelled to several other countries on a false passport exploring migration options. This behaviour is also odd.  To leave his frail parents, young wife and two young daughters to live as a Buddhist monk in India is somewhat incomprehensible.  The Tribunal therefore considers there may have been some extraordinary event that resulted in the applicant leaving Bangladesh in March 2014.  While there may be numerous unknown reasons for him to take such actions, they also accord with the actions of someone fleeing criminal justice.  Therefore there may be a criminal case or investigation against the applicant in Bangladesh.  However even if there is the Tribunal does not accept it has arisen in the circumstances claimed by the applicant. That is, the Tribunal does not accept a false case has been lodged against him by [Mr A] for either reasons unknown or because the applicant attempted to lodge complaints against others to the police.

   Assault of the applicant’s wife

2. The applicant has claimed that in June 2014 his wife was raped by extremist Muslims as revenge against the applicant. The Tribunal found the applicant’s evidence about the cause for the attack on his wife lacking in plausibility. The applicant had left Bangladesh almost three months prior to the claimed assault and he stated that his departure from the country was known. He initially gave evidence that the attackers went to his home looking for him and because he was not there they raped his wife.  However he later changed his evidence to state that the attackers knew he had left Bangladesh and would not be at his home and they took advantage of this knowledge to go there to rape his wife.

3. It may be that the applicant’s wife has been seriously sexually assaulted in Bangladesh.  Given the applicant was in India and his parents are frail there may have been an opportunistic sexual assault upon his wife while she remained there largely unprotected.  Further she belongs to a minority religious group which may have increased her vulnerability to harm.

4. However it is not apparent from the applicant’s own evidence that any such assault upon her was due to people trying to target the applicant.  He has not provided any specific identification of her alleged attackers apart from them being members of Jammat and Shibir. He did not provide any basis for this.  He also didn’t adequately explain why they, or anyone else, would want to target him in such a fashion.  The applicant’s wife described her alleged attackers as fundamentalists but did not provide any more detail about them, or connect their actions to the applicant.

5. While the Tribunal accepts the possibility that the applicant’s wife has been sexually assaulted in Bangladesh it does not accept that this was done as an act against the applicant.

   Fear of Harm in Bangladesh

6. The Tribunal has accepted that the applicant is married with two young daughters; that he and his family are Buddhists; that he experienced discrimination at school as a member of a minority group; that he and his family lived in a part of Cox’s Bazar that was subject to communal riots against Buddhists in September 2012; that he and his family experienced discrimination and extortion from local Muslims; that his father was hit trying to avoid extortion; that the applicant’s mother suffered an injury in Bangladesh; that there may be a criminal case against the applicant in Bangladesh causing him to leave there, or alternatively he departed Bangladesh for unknown reasons; and that the applicant’s wife may have been sexually assaulted in Bangladesh.

7. The Tribunal notes country information that the central government in Bangladesh takes concerted action to prevent communal violence and to combat it when it occurs.  The Tribunal notes that the central government also helps communities to rebuild after incidences of violence against them.

8. The country information indicates that the actions and vigilance by the Bangladesh government is warranted given the outbreaks of communal tensions and the rise in fundamentalism. In recent years it appears Hindus have mostly been targeted but there are reports of the occasional attack on Buddhists and Buddhist temples.  The Tribunal notes that Hindus reportedly make up approximately 10 % of the population in Bangladesh while Buddhists are less than 1 percent.

9. The 2019 DFAT report states that “Buddhists face a low risk of societal violence in the form of occasional localised incidents.”  However subsequent reports, such as the 2020 USCIRF report outlined above refer to an apathy and occasional complicity by local officials regarding discrimination and attacks on religious minorities which has created a culture of impunity for societal members to use violence.  The 2021 USDOS Religious Freedom report on Bangladesh spoke of concerns that “communal violence against minorities continued throughout the year” and that there were “rising communal attacks against religious minorities”.  The report emphasised that the central government took measures, including increased security, to counter the risk of outbreaks of communal or sectarian violence. It also promoted inter-religious respect and gatherings. The 2021 Odhikar Human Rights report referred to attacks on minority groups and the looting of their houses, businesses and places of worship.

10. There was also a recent report, referred to above, of an attack on a Buddhist monastery in Cox’s Bazar in late 2021 in which the monastery was burnt and several Buddhists injured. This followed more widespread attacks on Hindus and Hindu temples the previous month.

11. The November 2021 Lowy Institute report refers to almost yearly attacks on religious minorities since 2012, the increasing use of blasphemy accusations by Islamists to inflame mobs to communal violence, and the sense that religious minorities are considered inferior by many because of their faith.

12. The applicant’s description of his and his family’s experiences in Bangladesh are supported by the above analyses of the situation for religious minorities in the past decade.  As described by the applicant he and his family have been subject to sporadic episodes of societal discrimination, extortion, violence and threats largely attributable to their status as members of a minority religion, Buddhism.

13. In the current context, the Tribunal considers that if the applicant returns to Bangladesh there is a likelihood he will again face a level of societal discrimination and the risk of being targeted as a Buddhist during occasional communal violence.  Given he will be returning from overseas there is also a likelihood he will again be seen as a suitable target for extortion and vulnerable to such threats due to his religious minority status.  He and his family have been singled out in the past for threats and extortion and his return has the potential to trigger further adverse interest from those in the majority Muslim community who feel they can continue to act with impunity against the applicant and his family.

14. The risk of the applicant being targeted as a Buddhist during times of communal tensions does not seem to be high, given the infrequency of the communal violence.  However episodes of communal violence targeting religious minorities are reportedly continuing and have been occurring on a yearly basis for the past several years, including in the applicant’s home area.  Further, the applicant and his family are known to those in the community who have harmed them in the past so the risk of them being selected for harm again during communal tensions is heightened. Therefore, the Tribunal does not consider the risk of serious harm to the applicant as a result of communal violence is remote.

15. On the basis of the above the Tribunal is satisfied there is a real chance the applicant will face extortions, threats, and attacks as a member of a minority religious group in Bangladesh. The Tribunal finds these harms amount to serious harm. The Tribunal considers that the essential and significant reason for the harm is the applicant’s religion.  According to the available country information the risk of harm for members of minority religions can occur in any part of the country and is not confined to any particular area of the country.  The Tribunal therefore is satisfied that the real chance of harm to the applicant relates to all areas of Bangladesh.

16. The above country information, including DFAT’s latest report, refer to the police force in Bangladesh being susceptible to corruption and not reliably effective.  DFAT further remarks that most Bangladeshis would avoid engagement with the police.  In view of this information the Tribunal is not satisfied there is effective protection, as described in s.5LA of the Act, available to the applicant in Bangladesh.

17. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Bangladesh as defined by s.5J of the Act.

    Section 36(3)

18. The applicant spent some years in India after applying for and obtaining a visa to enter there from Bangladesh. While in India he unlawfully obtained an Indian passport which he used to travel out of and back into the country. Given he was not legally entitled to the passport the Tribunal does not consider that his possession of the passport represents a right for the applicant to enter India.

19. There is no other evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.

    CONCLUSION

20. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

100. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Melissa McAdam
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

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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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