1707864 (Refugee)

1707864 (Refugee) [2021] AATA 4209 (3 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707864
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Rodger Shanahan
DATE:3 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 September 2021 at 7:57am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – fear of harm – conversion from Islam to atheism – extramarital relationship in Australia – blamed for friend’s death – brother’s intention to kill applicant for inheritance – pregnancy of partner – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AA, 499
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 10 October 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following statutory declaration in support of his claim in September 2016:
The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration.
I fear that if I was forced to return to Bangladesh I would be seriously harmed because of my conversion from Islam to Atheism. I fear this harm from my strict religious friends, relatives, community, and extremist groups.
I was born in Bangladesh. I was born on [date] and am [age] years old. I have 1 brother and 1 sister. I am Bengali and my religion is Islam. I have never been married and I do not have children. In Bangladesh, I never worked because my father is wealthy and I was studying. I came to Australia by plane arriving in approximately 2007 on a Student Visa to [study]. My student visa was cancelled in 2010.
When I was young I was taught the Islamic religion at a strict Muslim school and in my household and my family are strict Muslims. My father was a [deleted] of a School and College that used to teach Islamic religion, [deleted], my father used to fund this school and I went to that school. My father is a founder of many mosques in Bangladesh and is well known for his support of teaching Islam.
My father is a wealthy businessman- he does [various] projects, obtain contracts on behalf of the [government]. He sells [product] and has one of few licenses from the government to do so. He is very influential in Bangladesh.
When I came to Australia, that’s when I started to think about different religions, and I made friends with people of different backgrounds and religions. I was talking to them about religion, and I was really interested to know about other religion and I started using the internet to know the religion, to read and study. Slowly, I found out that I did not agree with the Islamic religion, and that’s when I decided that I didn’t want to be part of it.
In 2009, I became atheist, having converted from Islam. I no longer identify as a Muslim. If I am returned to Bangladesh, I am afraid that I will be killed or subjected to significant harm. I am afraid of this harm from my family including my father brother, members of the Islamic community such as groups of Islamic terrorists. Jam Bi and Islamic State members as they are currently present in our country.
I have not told my family yet, but if I am forced to return I do not want to engage in Islamic practice and religion, and I believe that they will definitely find out and I will have to tell them because I do not believe that I need to hide who I am. I cannot relocate because my father is a wealthy businessman, he has many connections and he is likely to find out where I have relocated. I fear being attacked by my community since those who leave Islam are seen to be apostates.
The applicant made an additional claim in a March 2017 statutory declaration as follows:
I make the following additional claims:
I began an extra marital relationship with [Ms A] Haque since 2015 but since then it has broken off. We had a relationship without the permission of her parents. Her parents are very strict religious Muslims, they are from Munshiganj in Bangaldesh. Her mother wears the Burqa. She found out about our relationship on or about March 2016 after I called [Ms A] and her mother answered the phone, and we had been speaking on the phone/texting all night.
She asked me ‘Who are you?? Why are you calling my daughter?’ 1 told her ‘I am your daughter’s boyfriend’. At the beginning, her parents did not react very badly and they accepted our relationship because they thought we could talk to get married - they found out about my family in Bangladesh from their relatives and so there was formality at the beginning since I expressed interest in their daughter and my family is well known and rich so her parents thought it was a good match.
During this time, her parents started to make inquiries about me. They attempted to find out
about my family. On or about July or August 2016, her parents found out that I was not Muslim anymore, that I was not praying and I used to drink and go clubbing. After that, they threatened that you are not allowed to marry my daughter because you are not Muslim any more. Her mother said to me ‘until my last breath. We are not going to give you our daughter’. Despite that, [Ms A] was very much in love with me, she knew that I was not practicing Islam anymore and she thought that she could help me come back to the religion. Initially, she was a little forgiving and hopeful that it wasn’t true. [Ms A] and I continued to meet each other in secret during our relationship, for example, we used to meet at [various locations].
[Ms A]’s mum was told by [Ms A]’s friend that we were meeting up and her parents became angry. During this time, her parents called me and made the following threats including ‘we cannot deal with you here but if you go back to Bangladesh, we will deal with you there’. Her mother even followed us to [a location] one time and now continuously remains her daughter every second of the day.
They took her mobile phone and I had to buy her other phones, which her parents also took. Her parents are very strict with religious Islam and has been forcing her to learn more about the religion. As a result of that, my girlfriend became much indoctrinated and even more religious and she even started sending me links regarding the Islamic Religion in an attempt to convert me back. From December 2016, our relationship became unstable because she spent a lot of time learning about Islam and being forced to spend time in religious study with her parents since she was on a summer break. Our relationship became tense since she obviously began to have real problems with my change in religion.
She has ended our relationship because she cannot accept my conversion. Despite this, her family feels humiliated and angry about me going out with their daughter. They are strict religious Muslims and they feel as though I have caused shame to be brought on their daughter by engaging in an extra marital affair with her, especially since people found out and were spreading the gossip.
I fear that when I return, her family and connections in Bangladesh will attack me or ask members of religious groups they may be affiliated with to attack me because they will tell them about my conversion and the relationship I had with their daughter, which is against the Islamic religion. I fear this harm because her parents are extremely religious to the point that her mother now remains with her every single minute of the day and has stalked us before. Her parents have also directly threatened me. This is how angry and adamant her parents were that she not be in a relationship with someone like me and that there was talk about their daughter engaging in a non-Islamic affair whereby she is seen to have lost the family’s honour. I am also afraid they might report my conversion to the authorities so as to cause trouble for me.
I have attached statutory declarations from my friends and you are welcome to call them to make inquiries about my religion. They have given permission and I have also given permission to speak to them. Because my family is very high profile, I am well connected to many government and police officials as is evident in my [social media] account.
If I go back to Bangladesh, because of my family’s strong family connections, I will not be able to relocate safely and to be free from persecution.
AAT Hearing
The applicant was asked whether he knew everything he had previously said and written and that it was all true and correct. He said that he did and he did not wish to change anything. Asked about the witnesses he wished the Tribunal to call and what they knew about the situation in Bangladesh, he said they would testify about him personally as they knew him. They knew they would be called today but they did not know much about Bangladesh.
He claimed that if he returned to Bangladesh, he said that he was an atheist and he could be killed by Islamic terrorists. Asked if he had any other claims, he said that this was his only claim.
He claimed that his family was religious and his family is known in his area and that if anyone writes bad things about Islam or tries to leave Islam then people tried to kill them. Asked why anyone would know he was atheist, he claimed that his friends in Australia knew he wasn’t religious and drank and went to clubs and didn’t go to mosque. He said that Islamic terrorists in Bangladesh were always searching for people who leave Islam. About 1,000 people were killed every year by terrorists. Asked how many atheists were killed annually, he said that it was about 50 – he was asked to provide country information that would support this claim.
Asked how people would know that he had left Islam and what was different between an atheist and someone who simply didn’t attend mosque, he said they would still find him. He sometimes spoke with his friends about why they had to follow religion. Asked again how terrorists would find he was an atheist. He claimed that he came to Australia in 2007 and was a member of the mosque at [Suburb 1] but stopped then three or four bearded guys would come to his house from 2009 and ask him why he wasn’t attending. Asked if he had previously mentioned this, he said that he hadn’t. It hadn’t come to his mind before and his English wasn’t that good and he didn’t have an interpreter. He said that people still called him now.
He never mentioned this to the DIBP at interview and he never wrote it in his statement. He didn’t think this would be better for his claim. He had a solicitor and he was asked why he never mentioned this to him, and he said the solicitor never asked him. He stopped going to the mosque from 2009. One of the bearded men came from the same area, knew his brother and then this person went back to Bangladesh in 2011 and told his family. It was a big issue. Asked if he had ever mentioned this person going to his family and telling them in 2011 previously, he said that he hadn’t mentioned it at hearing or in his written statement.
His father was a well-known businessman in Bangladesh and everyone knows his family and word spread out that the applicant was an atheist. The community in Sydney also found out. He had a fiend working in the Australian army who knew – he was working in the army and was in [city]. He thought he may be in the reserve. They were helping him financially because his family wasn’t paying for him any more. Regarding his friend he claimed that he was in the regular army and went to the office Monday to Friday. The applicant was asked to provide the Tribunal post-hearing with information about his army friend such as his designation and where he was posted to.
Asked to confirm the point at which his family knew he was atheist, he claimed that it was 2011 or 2012. When his father died in 2019 his family didn’t tell him and he found out on [social media]. He had no relationship with his family. Asked if his father’s death was reported in the news in Bangladesh he said that it was. It was put to him that he must have been scared when he found out his family knew he was an atheist, he said that he was. His father said that he would cut him out of the will because he was no longer his son although he did not do that.
Asked when he applied for protection, he said it was 2016. Asked why there was such a delay, he said that he didn’t know he could apply for protection and he said he was now mature. He could use apps and write emails now and could speak English. Country information was put to him that only 53 per cent of Bangladeshis attended mosque so why he would be considered an atheist, he said that mosque is not really mandatory and one had to pray at home or reading Qur’an. Most people in Bangladesh prayed at home. It was rare to go to mosque. They would know he was atheist as he wasn’t praying at home. His mother or brother could hire someone to kill him as they believed they would go to home.
He stopped receiving money in 2012 as the bearded person had been giving him money via his family. Asked when he told the DIBP that he received money from his family he said he believed he told them it was 2012. He said it was many years so he couldn’t recall exactly. Asked whether he told DIBP about the bearded man visiting their family home he said that he hadn’t. Asked if he had social media he said that he had [social media]. The member then looked up his [social media] page and said that he had the one profile since 2008/09 but never posted religious issues because this was very risky.
He said he didn’t have much activity on [social media]. He said that he wrote in English and didn’t have one in Bangla. The page stated that he was married and he agreed he was. He said he was married [in] February to [Ms B] who was [studying at a] University. He had no documents. Asked again he said they were married but not officially. They were living together and she was pregnant. He said on [social media] that he was married but he had no documents.
It was put to him that there was a statutory declaration claiming he had a relationship with [Ms A] and that he feared her family and connections would attack him. Asked if it was still a claim as he had not raised it, he said there was an AVO that was in place for two years. He said that it was still on his documents so he didn’t have to raise it. He was asked why he didn’t raise it when asked, he said that he was sorry. He agreed that this was a claim he wished to now make.
He claimed that her family would kill him if he returned to Bangladesh. He knew them very well and they were strongly politically Islamic in Bangladesh and would kill him if they knew he had returned. He was asked how they would know he had returned, and he claimed it wasn’t good that he was an atheist and had a relationship with their daughter. Her parents called him many times in 2016-17 and threatened to kill him if they found him in Bangladesh. Asked if he had reported these threats to the police, he said that he didn’t as they had already made a claim against him. He had no proof there were any calls.
Asked again why he didn’t make a report to the police so they could check the phone records of the girl’s parents, or at least question them. He said he should have but he was scared of the police because they came to his house twice. It was put to him that it was difficult to believe that this had occurred as most people who had received multiple death threats would go to the police. Asked if he had previously told the DIBP that they had called and threatened him, he said that he did and then that he didn’t. It was put to him that if he knew about the threats in 2021 then he would have recalled this in 2016. He said that he did and then said he told the people before – he then said that he hadn’t mentioned the calls but had said they threatened him.
Asked why they would be interested in him in 2021 given the relationship broke down in 2015, he claimed that they argued with him because he was atheist and called his parents too. They couldn’t do anything to him in Australia but they took an AVO out on him. If they killed him in Bangladesh it would be good for them as they believed they would go to heaven.

It was put to him that he had provided a psychologist report from 2010, and was asked how regularly he had mental health treatment and he said it finished about 2015. It was put to him that he had been asked to provide them previously and he said he didn’t have the documents and was asked why he didn’t. He said that he could check his emails but had only found one document. It was put to him that he could call the doctors to get records as he had claimed to have had mental health treatment from 2010-15 but had only provided on document from 2010.
It was put to him that there was no mention of his atheism in the report he had provided. He agreed that he hadn’t told the psychologist about and was asked why not. He claimed that he realised he should have. The issue was that he claimed he had become atheist in 2009 and provided a lengthy psychologist’s report in 2010 but there was no mention of his alleged atheism, he had never previously mentioned visits from bearded people to his house in Sydney or by one of them to his family in Bangladesh.
His student visa was cancelled and affirmed and he was refused at the Federal Court in 2011 and only applied for protection in 2016 after having claimed to have been afraid since 2012. The concern was that his motivation was simply to stay in Australia and that he was not, nor had he told anyone that he was atheist. The concern was that he fabricated his claim. He said that he realised he should have applied for protection earlier, but he wasn’t motivated by his failure to get a student visa and he should have applied in 2009.
He was also told about s 424AA and it was put to him that in December 2020 there was a post about a funeral for a person in which he asked people to make du’a (supplications to God) for [Mr C]’s departed soul and that his body would be taken to [the] Cemetery insha’llah (God Willing) which appeared to be a strange thing for a committed atheist to ask. There was also one in May 2014 that talks about the different types of prayers that can be done (in English and Bangla) but he had been an atheist for five years by this stage. There were no comments that objected to this – these weren’t the actions of an atheists and there were no criticisms of God or religion from what the member could see.
He claimed that in 2014 his girlfriend [Ms A] had sent him something – it was on his [social media] and he may have tagged it. [Mr C]’s mother was from the same area as him. Her son was close to him but he was killed by his friends. [Mr C]’s father and mother had also reported him to the police saying that the applicant may have killed [Mr C]. The police came to his house and asked him questions and they were still investigating him. They are strict Muslims.
Asked why there was an absence of anti-religious messages on his [social media]. Nobody would be able to tell he was atheist from his [social media] page and they would likely think he was Muslim. He was scared to put up these things. He again said [Mr C]’s parents had reported him to the police. He said that he had fought with the father over a religious matter previously and this could also be an issue. He was asked if he had ever mentioned this previously in a written form or interview and he said that he hadn’t. It was put to him that raising issues at the hearing without having done it prior didn’t do much to assist his claim.
It was put to him that the AVO may just have been a domestic matter and it had passed and in a country of 180 million nobody would know or care about it when he returned there. The applicant then said that perhaps he could make a claim about [Mr C] – he had been trying to get him to get him back to Islam from 2016. Asked if he had mentioned this to DIBP and he said that he didn’t. He understood now that he could put forward these claims. It was put to him that at every stage he was asked to put forward all his claims.
The applicant’s witnesses were called. Neither answered but the applicant was allowed to text and alert them. The hearing then continued. He said that [Mr C]’s family was criticising him for leaving Islam. The applicant had a big verbal fight with [Mr C]’s father where the applicant criticised Islam. He visited the applicant’s family after [Mr C] died. He was good friends with [Mr C] and was born Muslim but never spoke about religion with the applicant and [Mr C] practised Islam.
He was asked why he would be harmed in Bangladesh. He said the parents believed he had killed their son. His son died in the water (drowned) at [location]. He didn’t know the cause of death but the police found him in the water. The parents reported him to the police and she texted him [thinking] he had killed their son and said that if they were in Bangladesh there would be revenge. He agreed that she threatened him. Asked if he ever reported this to the police he said he never had. But he told the police the parents had threatened him – it was put to him that this would be in the police report and he agreed to do this.
Asked why he didn’t mention this at the start of the hearing when he was given the chance and this occurred in January. He only raised this when an adverse issue had been raised regarding his [social media] – he said that he understood this now. He said he had told the police about the threat and they had written it down and he could get a copy.
One witness[was] called. He said they were good friends and the applicant helped a lot pf people and would be a good Australian. Asked about the applicant’s circumstances in Bangladesh, he said that he didn’t really know anything about Bangladesh. He reiterated that the applicant was a good person. The applicant was asked if the witnesses were able to say anything about his fear of serious harm or whether they were character witnesses. He said they would know of his atheism. The other witness was attempted to be called again but there was again no answer.
Concerns were put to him about the lateness of the claims when he could have put them in a written statement – they were also raised when concerns had been raised with him about certain issues. It raised concerns about the truthfulness of his claim. He said he understood.
He also said he had another claim – his brother was a religious person. They knew he was an atheist and the applicant could be killed for the half of his inheritance. It was put to him that he had claimed he had previously said he had been cut from money but his father didn’t get around to it. It was put to him that his family knew he was atheist from 2012 and yet never wrote him out of the will before he died in 2019. His brother could get a terrorist to kill him and take the half of the inheritance. He had never mentioned this before. It was put to him that his father had died in 2019 and he had plenty of time to raise the issue. The lateness of the claim was of concern. It was put to him that these questions had not been asked before. It was put to him that if he believed he was going to be killed it was reasonable to think he would raise this as an issue.
He asked if he could raise another claim after and he said this was really his last chance. He asked to raise another thing and said that his girlfriend’s siblings didn’t know his religious circumstances and there would be a threat from them. He had never mentioned this before. It was put to him that there were concerns that he was not actually atheist. He said he had been together for about two years and then said they had been living together since January. They would be threatened if they returned to Bangladesh. The siblings had no idea that she was pregnant and the baby was due shortly. It was put to him that it was hard to believe they didn’t know. He said his friends didn’t even know.
Asked if they hadn’t seen her or know they lived together, he said some families knew it. Asked why he never raised this at the start of the hearing he again said he knew now. There was a concern that he was just throwing new claims in as he was concerned that previous claims weren’t likely to be accepted. He was giving the opportunity to provide evidence and address the concerns raised at hearing. It was put to him that he may at best be a non-observant Muslims (or still a practising Muslim) and those at risk would have a prominent social media profile.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] May 2007 which wss cancelled for non-compliance on 6 October 2010, affirmed by the MRT on 7 April 2011 and upheld in the Federal Court [in] December 2011. He applied for a protection visa on 10 October 2016. I have sighted a copy of his passport and accept that Bangladesh is the applicant’s country of nationality.
The applicant claimed that if he returned to Bangladesh he would be killed or seriously harmed because he had converted to atheism, had an extramarital affair while he was in Australia, a person’s parents believed that he had killed their son in Australia, because his brother wanted the applicant’s half of the inheritance, or because he had made his current partner pregnant. To the extent that it is relevant I have taken into account the August 2019 DFAT Report - Bangladesh.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The hearing was conducted from the applicant’s residence and a technical check had been conducted prior, the member could see and take into account the applicant’s body language, and the interpreter is bound by a code of conduct and I did not see or sense anyone else present in the same room as the interpreter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the applicant’s claims regarding him receiving mental health treatment from 2010-2015 but lend it little weight. Prior to the hearing he provided a single psychologist’s report saying that it was done as part of his student visa application/appeal. The report noted stressors such as the breakup of a relationship and the death of his grandfather in Bangladesh and that this had caused depression in the applicant.
He provided no additional reports that would support his claim, despite being asked to do so prior to the hearing and being given additional time after the hearing. I note the one psychologist’s report was prepared for his student visa application, reports no impact on memory and recommends the visa be approved because he had largely recovered from his emotional and mental condition.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Becoming an atheist
I do not accept that the applicant is, or would be perceived to be an atheist. It can be difficult to differentiate between someone who is a non-observant, or cultural Muslim and someone who is a dedicated atheist. However, an atheist is someone who does not believe in the existence of God and based on this measure I am not satisfied that the applicant is atheist. To begin with this relies on his oral testimony which, as we see below, I do not accept as credible.
I note that those parts of his [social media] page the member examined during hearing have two entries that tell against his claim to be atheist. The first is one that outlines the different types of prayers (du’a) that one could make at different times or on different occasions. He claimed that he tagged this because it had been sent by his then-girlfriend. More telling though was a more recent [social media] entry regarding the death of his friend [Mr C], in which he asked for people to say prayers for his departed soul. He was unable to explain why a committed atheist would ask others to offer prayers to a God that he allegedly doesn’t believe in.
I note there is a lack of social media entries criticising religion or attesting to his atheism. I do not accept this to be because he believed that it was too risky to write about religious issues and he was afraid to do so. This is inconsistent with his written claim where he claimed he would be up-front about his atheism in Bangladesh because ‘I do not believe I need to hide who I am (an atheist)’.
There are other aspects of his religious claim that are inconsistent and lead me to believe they are fabricated. I do not accept that he stopped going to the [Suburb 1] mosque in 2009 and that three bearded men began coming to his house asking why he stopped coming and that one of them, a friend of his brother’s returned to Bangladesh on a visit in 2011 or 2012 and told his family. He had never mentioned this previously, either in his statutory declarations or at his DIBP interview. I do not accept that he didn’t mention it because he didn’t think it would be better for his claim, or that his solicitor never asked him. It is reasonable to believe that if this had occurred he would have mentioned it previously.
I also note his Tribunal claim about the ‘bearded man’ telling his parents about his atheism in 2011/2012 and that he became afraid from this point because his atheism was then known to his family. This however is inconsistent with his statutory declaration written in September 2016 in which he claimed that he had not told his parents yet and was afraid that they would find out. Yet by that time his parents would have known four or five years previously based on what he told the Tribunal. This inconsistency reflects poorly on the applicant’s credibility as a witness.
Further, despite the applicant claiming that his father was highly religious, founded many mosques, that he allegedly cut him off from all financing and he was afraid that his father would kill or seriously harm him because of his atheism, and that he threatened to write him out of his will, his father never did this. I do not accept as credible that if his father was as religious and as willing to harm or kill the applicant on return to Bangladesh that the father would have kept him in his will between knowing of his alleged atheism in 2011/12 until his death in 2019.
I also note that despite the applicant claiming to have become atheist in 2009 and then being visited by three bearded men at his residence, there was no mention of this in the psychologist’s report from 2010 he provided to the Tribunal prior to the hearing. Indeed the psychologist mentioned that because of the breakup the applicant began drinking heavily ‘…which as a Moslem (sic) he rarely did before…’ which would indicate the psychologist still considered him to be Muslim at the time he wrote the report. He acknowledged that he had not mentioned his atheism to the psychologist and the Tribunal considers this to be another indication that his claim to have become atheist to be fabricated. Because I do not accept that he is or would be perceived to be an atheist, it follows that he would not be targeted by his religious friends or relatives, members of the community or extremist groups in Bangladesh.
Even if I were to accept that he is a non-practising or cultural Muslim, country information[1] indicates that weekly mosque attendance is just above 50 per cent. I do not accept that this is because people pray at home given the same country information indicates that less than 40 per cent of Bangladeshis pray several times a day.
[1] Commitment to Islam | Pew Research Center (pewforum.org), accessed 26 August 2021.
Given this, even if he did not attend mosque while in Bangladesh I am satisfied that he would not face a real chance of serious harm because of it, given that his actions would be in line with that of half the population. I do not accept that the applicant would be at greater risk because he came from a very religious and well-known family. This relies entirely on his uncorroborated oral testimony, and I have found that the applicant lacks credibility. I accept that the applicant drinks alcohol on Australia, and that he may do so in Bangladesh. Because I do not accept that his family is strictly religious, they therefore would not be overly concerned if he drank in Bangladesh. And while alcohol sales are restricted in Bangladesh it is still possible to drink in licenced premises there are 186 licenced bars and 203 local liquor outlets in the country.[2] The applicant may find alcohol harder to obtain but would still have access to it if he felt so inclined. Even if he were not able to access it, such restrictions would not amount to serious harm for s 5(J) purposes.
Targeting because of extramarital affair
[2] The root of Bangladesh’s alcohol poisoning outbreak | Dhaka Tribune, accessed 2 September 2021.
I do not accept that the applicant had an ‘extramarital affair’ with a woman that was broken off because he had become atheist and that her religiously observant parents had threatened him as well. To begin with I have not accepted that he has ever been atheist and as a result this would not have triggered the relationship breakup or any threats from the girl’s parents. It is possible that he may have been in a relationship with a girl that broke down as many relationships do.
I am unable to accept that an AVO was taken out against him, given no evidence was provided to support this claim and it relies on his uncorroborated oral testimony, which I have found lacks credibility. Nor do I accept that her parents made threats on his life by phone over the period 2016/17. This was not mentioned in his DIBP interview and neither were these alleged threats ever reported to the Australian police. I do not accept that he failed to do so simply because the police had been to his place twice before. He failed to explain why having had the police come to his place twice would stop him from reporting a series of death threats made against him, to the police. Given he had been in Australia for nine years by this stage it is reasonable to believe that he would have been familiar enough with the Australian legal system to know that death threats could be reported to the police in the expectation of some action being taken by them.
Because I do not accept that the relationship breakdown elicited any hostility or threats of violence from the girl’s family, it follows that there is not a real chance that the applicant will face serious harm from them in the reasonably foreseeable future for the fact the relationship failed.
Perceived responsibility for death of a person
I do not accept that the applicant was thought by the parents of Shahad [Mr C] of killing him, that he had been questioned by the police over it or that [Mr C]’s parents had made threats. He claimed that [Mr C] had been trying to get the applicant back to Islam since 2016 yet had never mentioned this previously to DIBP. He also claimed that [Mr C]’s parents knew that he had left Islam whereas I have found this claim to be atheist to have been fabricated.
He also raised this at the end of the hearing when his main claim had been called into question, and not at the beginning of the hearing when he was given the opportunity to raise any other claims. I do not accept that he was ever threatened by [Mr C]’s parents and that he had raised this with the [police] during their interview with them. He was given the opportunity to provide evidence from the police to support this however he never did. Because I do not accept that the applicant was suspected of having a hand in [Mr C]’s death or ever threatened by [Mr C]’s parents because of this, it follows that there is not a real chance that he will be threatened by them or anyone else regarding [Mr C]’s death in the reasonably foreseeable future.
Pregnant girlfriend’s sibling threat

I do not accept that the applicant has a pregnant girlfriend and that her siblings would seek to harm him when they found out. He had never mentioned this previously despite being given the opportunity to do so at the start of the hearing and only raised it when his main claim was questioned. I note that he claimed on his [social media] page that they were married but when questioned he said that they weren’t actually married but lived together since January.
Post-hearing he provided a letter from the radiographer addressed to the person he claimed was his pregnant girlfriend and screen shots of texts showing what he claimed was bad news about the state of the baby. The member viewed these and they appeared to be from the radiologist and gave no indication of any problems with the baby.
At the hearing on 11 August 2021 the applicant asked for additional time to answer the questions put to him at hearing and he was given until 17 August but was also asked by the Tribunal to provide evidence such as joint bank accounts and/or utility bills in joint names and a letter from their doctor attesting to the fact that the applicant and the woman were appearing as the parents of the child. On the 17 August he asked for two more weeks to provide evidence, saying that he was under stress - he provided a copy of a rental bond receipt in which the woman in question was noted as a co-tenant with the applicant the principal tenant.
On 23 August he was told that he could have until 25 August – on the 26 August he asked for additional time to produce the required documents and was told he could have until the finding was finalised given that the Tribunal considered that he should have had sufficient time to access things such as bank statements and utility bills. The finding was finalised on 2 September 2021, three weeks after the hearing and the Tribunal believes that he was given more than sufficient time post-hearing to provide evidence regarding the nature of his relationship with his alleged partner.
I am not satisfied that he is the father of a child expected by [Ms B] and that her siblings will harm him because of this. The claim was made very late in the hearing and well after he told the Tribunal that his atheism was his only claim to fear serious harm. If he did indeed believe that he was going to be killed for being the father of a child outside wedlock then it is reasonable to believe that he would have mentioned this at the start of the hearing when he was explicitly given the chance.
Whilst I accept that the applicant may share a residence with the woman there is nothing in the evidence presented to the Tribunal that would support his claim that they were life partners and that he was the father of the baby. His [social media] page simply said that he was married (ven though he wasn’t) but not to whom, which is strange but also means that it would not be apparent to the girl’s family than he was claiming to be married to their daughter. I also note that the entry was only in English.
It was apparent to the applicant that the Tribunal was concerned about the truthfulness of this claim and it gave him every opportunity to allay its concerns. Despite having three weeks to do so, he produced no documentary evidence that the two lived as partners other than a screenshot of a bond board receipt saying that she was a co-tenant at an apartment where he was the principle tenant. He was asked to provide things such as bank statements, utility bills and/or a letter from [Ms B]’s doctor attesting to their relationship or paternity. Nothing was ever provided, not even a document from his alleged partner that they were in fact partners and the applicant was the father of her child. I am satisfied that this is because they are not in a romantic relationship and he is not the father of the child.
As a consequence I do not accept that her siblings believe that he is responsible for making [Ms B] pregnant and will harm him if he returns to Bangladesh.
Other Issues
The lengthy delay in the applicant applying for protection also does nothing to give the Tribunal confidence that his claims are true. Despite claiming to have been scared of what awaited him in Bangladesh because his family became aware of his atheism in 2011/2012, he never applied for protection until the second half of 2016. This significant delay is not indicative of someone with a well-founded fear of serious harm. I do not accept that the applicant was unaware that he could apply for protection and didn’t become aware until he became more mature.
By the time he allegedly became atheist he had already been in the country for two years; by the time his family found out he had been here for four or five years; by the time he applied he had been here for nine years. It lacks credibility that in the time he had been here he was unaware or did nothing to find out that he could apply for protection. I also note that the applicant’s student visa had been cancelled and his appeal to the Federal Court was dismissed in 2011 so he had no legal basis to stay in Australia which makes his delay in applying for protection even more incredible.
I also do not accept that the applicant’s brother was religious and would get people to kill the applicant because he wanted the applicant’s half of the family’s inheritance. When he was asked whether he had any other claims at the start of the hearing he said that he did not, and only raised this claim at the end of the hearing after concerns with his initial claim had been raised.
He also raised the issue of his atheism as a reason for his brother wanting to target him for his inheritance, whereas I have already found this claim regarding atheism to have been fabricated. I do not accept that the applicant’s family are deeply religious and that they are opposed to any un-Islamic behaviour that he may display, such as consuming alcohol. The fact that the applicant’s father never wrote him out of the will would indicate that he was regarded as an integral part of the family. The fact that the applicant never mentioned his brother’s potential targeting of the applicant over the inheritance at the start of the hearing when he had the opportunity to do so raises further concerns regarding the truthfulness of the claim. This claim also relies entirely on his uncorroborated testimony which I have found lacks credibility.
I have taken into account the three statutory declarations provided by the applicant and the one witness spoken to at the hearing (the other one never answered his phone) but lend them little weight. None of them have any first-hand knowledge of the applicant’s situation in Bangladesh and simply repeated what he had told them. I am willing to accept that the applicant has a flexible attitude towards his faith given that he does drink alcohol, however his [social media] entry calling for prayers for someone who died would indicate that he still identifies as a Muslim.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is atheist, had an extramarital relationship in Australia and will be harmed by the girl’s parents, that a friend’s parents believe that he is responsible for their son’s death, that his brother will have him killed for an inheritance or that he has a regnant partner whose siblings will kill him when thy find out, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4209

3 September 2021

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